Court of appeal dismisses ‘Atenisi Institute’s claims for costs, but says ban on recruiting contributed to senior academic’s resignation

The Court of Appeal has dismissed an appeal by the ‘Atenisi Institute for costs associated with the recruitment of a replacement dean.

‘Atenisi Institute

The appeal was the latest step in a long running dispute between the Institute and the Tonga National Qualifications and Accreditation Board.

Judge Hansen, presiding, said insufficient evidence had been produced to prove the Institute would suffer any actual or prospective loss associated with the need to replace Dr  Lorenz Gonschor following his resignation.

The judge said the figure demanded by the Institute to cover the cost of recruiting a substitute dean – TP$50,000 – was more than the amount received for tuition in 2017.

His Honour described the appeal for funds as opportunistic

The ‘Atenisi Institute has been in dispute with the Board over requirements under the Tonga National Qualifications and Accreditation Act for more than a decade. This has resulted in  litigation in relation to the Board’s approach under the Act to several issues: registration of  ‘Atenisi as a university; accreditation of its educational courses and the validity of compliance notices issued by the Board purporting to ban ‘Atenisi from enrolling students for unaccredited courses.

Arguments over accreditation have been long and bitter and culminated in the Board ordering ’Atenisi to stop recruiting students in February 2018. The Supreme Court lifted the ban in 2019.

Shortly afterwards ‘Atenisi issued legal proceedings against the Board. Lord Chief Justice Paulsen declared that the compliance notices were ultra vires and of no effect. Following an unsuccessful appeal against Mr Justice Paulsen’s finding, the ‘Atenisi Institute then lodged a new appeal for the Board to pay TP$50,000  for the costs of recruiting a replacement for Dr Lorenz  Gonschor who resigned from his position as senior lecturer in liberal arts and Dean of Faculty in November 2019.

Dr Gonschor was employed by ‘Atenisi as Dean of Faculty between July 2017 and November 2019. He is now employed by the University of French Polynesia in Tahiti.

Part of the basis of the appeal was that the ban on student recruitment and the need to keep up a prolonged struggle against the Board had prevented Dr Gonschor from fulfilling his duties as a teacher or researcher.

The figure of TP$50,000 was derived from the following costs:

  • $2000 for international recruitment advertising
  • $30,000 for international airfares for prospective candidates
  • $7000 local per diem for prospective candidates
  • $4000 for local settling-in of the appointed administrator
  • $7000 for eight months on-site training of the appointed administrator concurrent with said administrator’s first year of service.

Judge Hansen said the TP$50,000 was more than the total amount of tuition revenue  for 2017. The judge said the method proposed for recruiting was unreasonable.

He said the expense of advertising and flying interviewees to Tonga “simply could not be supported by the normal revenue streams enjoyed by ‘Atenisi.”

“That, in turn, smacks of opportunism which is not to be condoned by the Court in an exercise such as the present.”

The judge said the expenditure and proposed method of recruitment had not been ratified by the Board of the Institute.

“That is a matter  of significance because without that ratification, it follows that the Board has no idea about the expense expected to be incurred if it were to undertake that process,” he said.

”It will be recalled that Mr Velt, the current President of the Plaintiffs Board, frankly stated that if the  Plaintiff cannot afford to conduct the recruitment process in the  manner claimed, it will have to do something else.”

The judge said there was no need to bring interviewees to Tonga.

“In modern times, and particularly with the border closures and quarantine requirements imposed by the current pandemic, the availability of audio-visual communications for the purposes of conducting meetings or to actually show any  prospective candidates what the campus looks like, require, at a   minimum, nothing more sophisticated than a smart phone,” the judge said.

“There was no satisfactory  evidence to establish any actual or prospective loss associated with the need to replace Dr  Gonschor following his resignation.

“Entitlement to an award of damages was not satisfactorily established.”

Dr Horowitz

Speaking after the judge’s summary of the case was issued, the ‘Atenisi Institute’s University Dean, Dr Michael Horowitz, said  the Institute had partly prevailed in its attempts to put forward its view of the situation.

Dr Horowitz said the Institute had asked that the Appeals Court above declare that the recruitment bans contributed to Dr Gonschor’s resignation and that the court order the Qualifications Board to contribute to the costs of replacing the Dean.

He said the Appeals Court had ruled that a previous finding on the impact of the bans on Dr Gonschor’s decision to leave was wrong.

Dr Horowitz quoted Judge Hansen as saying: “To conclude that the bans were no longer an operative factor is to underestimate their impact on ‘Atenisi’s viability and their ongoing potency in Dr Gonschor’s ultimate decision to resign.”

“The testimony of ‘Atenisi’s former Dean of Faculty has been upheld, once again demonstrating the veracity of our staff.”

He said the appeal hearing had  confirmed the extent of TNQAB’s assault on the Institute’s spirit.

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