'Atenisi Institute Incorporated v Tonga National Qualifications and Accreditation Board [2022] TOSC 2; CV 59 of 2021 (14 January 2022)

IN THE SUPREME COURT OF TONGA

NUKU’ALOFA REGISTRY

CIVIL JURISDICTION

CV 59 of 2021

BETWEEN:

‘ATENISI INSTITUTE INCORPORATED

Plaintiff

-and-

TONGA NATIONAL QUALIFICATIONS AND ACCREDITATION BOARD

Defendant

Application for leave to apply for judicial review

RULING

BEFORE: LORD CHIEF JUSTICE WHITTEN QC
To: Dr Horowitz, counsel pro se for the Plaintiff
The Defendant
Application: 25 October 2021
Ruling: 14 January 2022

Introduction

1. This proceeding is the latest in an ongoing series of disputes between the parties. By application dated 25 October 2021, the Plaintiff seeks leave to apply for judicial review requiring, principally, the defendant to issue a decision in respect of the Plaintiff’s application for accreditation of certain of its tertiary courses.

Background

2. In proceeding CV 13 of 2018, the Plaintiff sought a declaration that it was not subject to the registration and accreditation requirements of the Tonga National Qualifications and Accreditation Board Act (“the Act”). It also complained of, and sought an interim injunction to restrain the Defendant from imposing recruitment bans on the Plaintiff. On 8 February 2019, Paulsen LCJ refused the injunction application.^[1] On 18 May 2018, his Honour granted the Plaintiff leave to apply for judicial review of the decision of the Defendant dated 22 February 2018 that the Plaintiff was ‘non-compliant’ with the requirements of the Act by delivering unaccredited Bachelor of Arts and Bachelor of Science programs, and a declaration that it was not a ‘provider’ subject to the registration, accreditation and review requirements of the Act.
3. By judgment delivered on 15 October 2019, the Plaintiff was held to be subject to the Act and the Defendant’s recruitment bans were found to be unlawful.^[2] As the trial judge, I declined to determine any purported issue in relation to the Plaintiff’s extant application for accreditation or the applicability or appropriateness of the templates specified by the Defendant as part of the accreditation documentation, because, in short, the Plaintiff had not sought any relief in that regard.^[3] The Plaintiff appealed that aspect of the judgment. On 26 March 2020, that appeal was dismissed.^[4]
4. In proceeding CV 23 of 2020, the Plaintiff brought a claim for damages arising from the Defendant’s unlawful recruitment bans. The claim comprised the costs of recruitment of Dr Gonshor’s replacement as a member of the ‘Atenisi faculty and loss of revenue. By ex tempore judgment on 17 February 2021,^[5] the first component of the claim was dismissed on the basis that the recruitment bans had been declared unlawful by the court prior to Dr Gonschor’s resignation and that otherwise, the Plaintiff had failed to prove the quantum of that claim. The Plaintiff was awarded $5,000 nominal damages for its loss of revenue claim.
5. The Plaintiff appealed the decision concerning the ‘Gonschor claim’. In its decision dated 1 October 2021, the Court of Appeal held that the recruitment bans were an operative cause of Dr Gonschor’s resignation but otherwise upheld the dismissal of that part of the Plaintiff’s claim for failure to prove damages.

This application

6. By its present application, the Plaintiff seeks relief in respect of what it considers to be the Defendant’s failure to have assessed and determined the Plaintiff’s 2017 application for accreditation in accordance with the relevant legislation (considered further below), or at all.
7. The grounds for the application include reliance on a number of observations and findings made in the previous proceedings. For instance:
   • (a) in the judgment in in CV13 of 2018, the Court recorded that:
     • (i) it was “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”;^[6] and
     • (ii) “Regulation 17(3)^[7] provides that all applications for accreditation shall be processed within six weeks of receipt.”^[8]
   • (b) in the first appeal (AC10 of 2019), the Court of Appeal drew the Board’s attention to Regulation 17(3) “... which provides for applications to be processed promptly”;^[9] and
   • (c) in CV 23 of 2020, the Court repeated the observation that:^[10]

“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...”

8. As a result of the Defendant’s alleged delay in deciding the application for accreditation, the Plaintiff claims that:

“10. ... the Defendant’s unlawful negligence has foreclosed the opportunity for the Plaintiff’s university to obtain accreditation, with said foreclosure depriving it of a credential that would have better enabled it to retain administrators and faculty, recruit and retain students, collect tuition, and procure funding from the assistance programmes of both foreign nations and the Kingdom of Tonga.^”

9. In consequence, the Plaintiff now asks this Court to:

“(a) expeditiously order[ing] the Defendant to finally decide the Plaintiff’s application for accreditation within 15 days of the instant application, appending to said decision its rationale for same, and then
(b) invit[e] the Plaintiff upon receipt of the information to in due course commend for review any false or unfair depreciation of the Plaintiff’s competence that might be contained therein, following the correction of which the Court, if any, shall [sic]
(c) treat the Plaintiff’s request for a declaration regarding the merits of its application in October 2017, and
(d) make additional orders it deems appropriate, including, if warranted, an order compelling the Defendant to accredit the Plaintiff and/or compensate the Plaintiff for damages incurred by the Defendant’s negligence.

10. The application for leave is supported by an affidavit of Cornelis Velt, the Plaintiff’s President. Mr Velt’s affidavit which does not take the grounds for review any further. However, Mr Velt did specify that he wants the Court to order the Defendant to issue its assessment of the Plaintiff’s application for accreditation within five days.

Consideration

11. Order 39 rule 1 of the Supreme Court Rules applies to any action against an inferior Court, tribunal or public body (including an individual charged with public duties) in which the relief claimed includes an order of mandamus, prohibition or certiorari, or a declaration or injunction (referred to as “judicial review”).
12. The prerogative remedy of mandamus is issued to compel a public official to exercise power in accordance with his or her public duty. Where the ground for issue of mandamus is constructive failure to exercise jurisdiction, mandamus may be issued upon the tacit assumption that the prior decision is void: R v Flintshire County Council County Licensing (Stage Plays) Committee; Ex parte Barrett [1957] 1 All ER 112.
13. Rule 2 provides, relevantly, that:
    • (a) no application shall be made for judicial review unless the leave of the Court has been obtained in accordance with the rule; and
    • (b) an application for leave to apply for judicial review shall be made promptly and in any event 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.
14. Given the history between the parties and the nature of the present application, I called the matter for mention on 20 October 2021. During the course of that mention, at which Dr Horowitz appeared again as counsel pro se for the Plaintiff, I explained the nature of the prerogative writ of mandamus as referred to in Order 39 rule 1. I also explained to Dr Horowitz that only the first order sought can, if warranted, be logically necessary for if the Defendant issues a decision approving the Plaintiff’s application for accreditation, then (and subject to any conditions which might be attached to that approval), that would be the end of the matter (save for any claim for damages or compensation resulting from the delay). The other alternative would be to treat the Defendant’s alleged delay as a constructive denial of the application, in which case, the usual administrative law review considerations would be applied, but which do not involve the Court usurping the statutory role of the Board.^[11] However, at this stage, and until the Defendant has explained, or been given the opportunity to explain, its delay, I regard that course as premature. Otherwise, the balance of the orders sought are predicated and derivative upon an assumed decision, adverse to the Plaintiff, when in fact no decision has as yet been made.
15. It is clear that the present application for leave has not been made promptly and well outside the three-month period prescribed by O39 r2. Arguably, that period ran from the date six weeks after the Plaintiff’s application for accreditation had been submitted. Based on the evidence in CV 13 of 2018, the latest of those dates was the end of May 2018, in which case, this application should have been filed no later than the end of August 2018.
16. Notwithstanding references in the Plaintiff’s application to it being urgent^[12] due to the Plaintiff’s parlous financial state,^[13] there is nothing in the application or supporting affidavit to explain the delay in formally pursuing this issue until now, save for a footnote reference to the parties conducting settlement discussions between April and November 2020. There is otherwise no evidence, at this stage, of any open communications between the parties which might shed light on the reason/s for the Defendant’s apparent failure to comply with Regulation 17(3) or its ongoing failure to issue a decision.
17. Even though, ordinarily, the Plaintiff must show 'good reason' why time should be extended, the Court's discretion to extend time is a wide one: Tauafaeteau v Supervisor of Elections [2015] TOSC 12 at [12]; and
18. For the reasons which follow, I do not consider that the lengthy delay in filing this application should preclude a grant of leave:
    • (a) notwithstanding that O39 r3(a) provides that applications for leave are to be made ex parte, during the mention on 20 October 2021 (again, given the history between the parties), I required the Plaintiff to serve the Defendant with the current application, which it did;^[14]
    • (b) the Defendant has not filed any objection to leave being granted nor has it pointed to any prejudice on account of the Plaintiff’s delay;
    • (c) the Defendant has been on notice since 2018 that the Plaintiff required the Defendant to assess and determine its application for accreditation, with the issue being ventilated at length in the evidence at trial in CV 13/18;
    • (d) there is no evidence that the Plaintiff has ever conveyed to the Defendant that the Plaintiff has abandoned its application or acquiesced to the Defendant’s alleged failure to comply with Regulation 17(3);
    • (e) the Defendant has been repeatedly reminded of its statutory duty by this court and the Court of Appeal;
    • (f) based on the current application and the relevant evidence in the related previous proceedings, there is, in my view, an arguable case for review: Public Service Association (PSA) v Government of Tonga [2016] TOSC 34 at [9], referring to Moala v Public Service Commission [2012] TOCA 14; and
    • (g) the issue of the Defendant’s alleged failure to perform its statutory duty raises an important issue of law,^[15] which is also of general public importance^[16] and thus represents a case fit for further investigation on a full inter partes hearing: Davey v Aylesbury Vale District Council [2007] EWCA Civ 1166; [2008] 2 All ER 178.
19. I am therefore satisfied that there is good reason to extend time and grant leave.

Result

20. Pursuant to Order 39 rule 2 of the Supreme Court Rules, the Plaintiff is granted leave to apply for judicial review by way of mandamus requiring the Defendant to process and determine the Plaintiff’s application for accreditation according to law.
21. The Plaintiff is to file and serve a Statement of Claim by 28 January 2022.
22. If it wishes to defend the action, the Defendant is to file a Statement of Defence by 18 February 2022.
23. The matter will be listed for directions on 25 February 2022 at 9 AM in court 1.

NUKU’ALOFA		M. H. WHITTEN QC
14 January 2022		LORD CHIEF JUSTICE

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^[1] 'Atenisi Institute Inc v Tonga National Qualifications and Accreditation Board [2019] TOSC 8.
^[2] 'Atenisi Institute Inc v Tonga National Qualifications and Accreditation Board [2019] TOSC 45.
^[3] [132] to [136].
^[4] 'Atenisi Institute Inc v Tonga National Qualifications and Accreditation Board [2020] TOCA 4.
^[5] With written reasons published on 8 March 2021.
^[6] [267]
^[7] Of the Tonga National Qualifications and Accreditation Board Regulations 2010.
^[8] [144]
^[9] [11]
^[10] [98]
^[11] 'Atenisi Institute Inc v Tonga National Qualifications and Accreditation Board [2020] TOCA 4 at [20].
^[12] To which, in CV 13/18, Paulsen LCJ alluded on 18 May 2018 at [3].
^[13] ‘Atenisi’s submissions in AC 10/19, dated 7 March 2020, at [7] and referred to by the Court of Appeal at [58].
^[14] Certificate of service, 26 October 2021.
^[15] Tauafaeteau v Supervisor of Elections, supra, at [15].
^[16] Taione v Tu'ivakano [2013] TOSC 42 at [15].