Letter to the editor
It was gratifying to remark the headline of Kaniva’s recent coverage of the ‘Atenisi Institute’s recent court case (AC9/2021) because it balances the denial of funding with the finding of liability, thereby capturing the two-fold aspect of the judgment. However, there are some factual errors.
In Oct. 2019, the recruitment bans of 2018 and 2019 were declared ultra vires by Lord Chief Justice Whitten, not Lord Chief Justice Paulsen who had denied injunction against the initial ban in February 2019. The ‘Atenisi Institute did not challenge Lord Chief Justice Whitten’s vital judgment of ultra vires but rather on appeal obtained reassuring clarification regarding two obiter dicta, as well as further encouragement to litigate for damages.
Justice Hansen’s opinions regarding quantum are restricted to judgement at ¶56-59. He endorsed endorse the reasoning of the Lower Court in denying quantum, but it is unfair to conflate the Lower Court’s opinions with his. He never, for example, opined that prospective candidates could sufficiently assess the ‘Atenisi environment via a “smart phone”; he cited the Lower Court’s opinion in that regard. And he certainly never described ‘Atenisi’s appeal for funding as “opportunistic”, again citing the Lower Court’s opinion in that regard, as is common practice in appellate judgment;
Moreover, it’s odd that Kaniva is in such detail covering the appellate denial of additional funding without ever having informed its readers that in February the Lower Court awarded ‘Atenisi damages for lost tuition caused by the recruitment bans. Had it done so, its readers would have appreciated that since litigating damages in May 2020 ‘Atenisi has twice established discrete liability for the recruitment bans.
Dr Michael Horowitz
We regret that some errors of attribution occurred during the editing process – Kaniva News.