Amponsem v Anglican Schools Corporation - [2024] NSWCATAD 194

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Amponsem v Anglican Schools Corporation [2024] NSWCATAD 194
Hearing dates: 25 June 2024
Date of orders: 16 July 2024
Decision date: 16 July 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: P Roney KC, Senior Member
K Stubbs, General Member
Decision:
(1) The Applicant’s complaint of racial discrimination is upheld.
(2) To the extent necessary we order that the applicant be substituted as the identified applicant in this matter in lieu of her mother as applicant on her behalf.

Catchwords:
ANTI-DISCRIMINATION – RACE DISCRIMINATION – where questions directed to and comments made about a student of Ghanian heritage at a high school by the school principal in the presence of other student leaders was racial discrimination- whether conduct constitutes treating the student less favourably than a person of a different race and subjecting the student to other detriment- whether to order a refund of school fees-whether to order an apology.

Legislation Cited:
Anti-Discrimination Act 1977 (NSW)
Anti-Discrimination Act 1991 (QLD)
Equal Opportunity Act 2010 (Vic)
Racial Discrimination Act 1975 (Cth)

Cases Cited:
Aitken v State of Victoria – Department of Education & Early Childhood Development [2012] VCAT 1547
Al Abody v Director of Housing (Human Rights) [2017] VCAT 431
ASQ v Harcourts Rata and Co Pty Ltd [2022] VCAT 139
Bailey v Australian National University (1995) EOC 92-744
Bogie v University of Western Sydney (1990) EOC 92-313
Dalla Costa v. The ACT Department of Health (1994) EOC 92-633
Damiano v Wilkinson [2004] FMCA 891
Edgley v Federal Capital Press of Australia [2001] FCA 379
Haines v Levies (1987) 8 NSWLR 442
Jemal v ISS Facility Services Pty Ltd (Human Rights) [2015] VCAT 103
Kuyken v Lay (Human Rights) [2013] VCAT 1972
Lewin v ACT Health & Community Care Services [2002] ACTDT 2
NC v Queensland Corrective Services Commission [1997] QADT 22
Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132.
Sinopoli v Harrison (Human Rights) [2017] VCAT 355
Sivanathan v Commissioner of Police (NSW) (2001) NSWADT 44
Slattery v Manningham CC (Human Rights) [2013] VCAT 1869
Tsikos v Austin Health [2022] VSC 174
Wotton v Queensland [No 5] (2016) 352 ALR 146

Texts Cited:
None cited

Category: Principal judgment
Parties: Nyah Amponsem (Applicant)
Anglican Schools Corporation (Respondent)
Representation: Applicant (Self-Represented)
Wotton and Kearney (Respondent)

File Number(s): 2024/00066874
Publication restriction: Nil

Reasons for the DecIsion

The applicant, Nyah Amponsem (Nyah) seeks compensation by way of a refund of school fees and an apology from the respondent Anglican Schools Corporation arising from what she contends were racist questions she alleges were asked of her in her presence by her school principal during a car trip with fellow school student leaders to an International Women's day function on 3 March 2023.
It is common ground that on that Friday, 3 March 20, 2023, the principal of the Shellharbour Anglican College (the school) drove 4 female students to attend an International Women's Day luncheon in Wollongong and that Nyah who was a 12th…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWCATAD 194
Decision Date: 16 July 2024

CaseChat Overview and Summary

Amponsem v Anglican Schools Corporation involved a student of Ghanian heritage who alleged that she had been subjected to racial discrimination by her school principal in front of other student leaders. The case was heard in the relevant tribunal. The central issue was whether the questions directed to and comments made about the student by the principal constituted racial discrimination, and whether this conduct amounted to treating the student less favourably than others due to her race, and whether it subjected her to other detriment. Additionally, the tribunal considered whether to order a refund of the school fees and an apology.

The tribunal found that the principal's conduct did indeed amount to racial discrimination. It held that the principal's comments and questions about the student's race, in the presence of other student leaders, treated her less favourably than if she had been of a different race. This conduct also subjected the student to other detriment, as it created an environment of hostility and exclusion. The tribunal emphasised the importance of fostering an inclusive school environment where all students feel safe and respected, regardless of their racial background.

As a result of its findings, the tribunal upheld the applicant's complaint of racial discrimination. It also ordered that the applicant be substituted as the identified applicant in this matter in place of her mother. This decision underscores the significance of addressing and preventing racial discrimination in educational institutions, ensuring a supportive and equitable learning environment for all students.

Orders

Orders of the court

(1) The Applicant’s complaint of racial discrimination is upheld.

(2) To the extent necessary we order that the applicant be substituted as the identified applicant in this matter in lieu of her mother as applicant on her behalf.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Amponsem v Anglican Schools Corporation [2024] NSWCATAD 194
Hearing dates:	25 June 2024
Date of orders:	16 July 2024
Decision date:	16 July 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	P Roney KC, Senior Member K Stubbs, General Member
Decision:	(1) The Applicant’s complaint of racial discrimination is upheld. (2) To the extent necessary we order that the applicant be substituted as the identified applicant in this matter in lieu of her mother as applicant on her behalf.
Catchwords:	ANTI-DISCRIMINATION – RACE DISCRIMINATION – where questions directed to and comments made about a student of Ghanian heritage at a high school by the school principal in the presence of other student leaders was racial discrimination- whether conduct constitutes treating the student less favourably than a person of a different race and subjecting the student to other detriment- whether to order a refund of school fees-whether to order an apology.
Legislation Cited:	Anti-Discrimination Act 1977 (NSW) Anti-Discrimination Act 1991 (QLD) Equal Opportunity Act 2010 (Vic) Racial Discrimination Act 1975 (Cth)
Cases Cited:	Aitken v State of Victoria – Department of Education & Early Childhood Development [2012] VCAT 1547 Al Abody v Director of Housing (Human Rights) [2017] VCAT 431 ASQ v Harcourts Rata and Co Pty Ltd [2022] VCAT 139 Bailey v Australian National University (1995) EOC 92-744 Bogie v University of Western Sydney (1990) EOC 92-313 Dalla Costa v. The ACT Department of Health (1994) EOC 92-633 Damiano v Wilkinson [2004] FMCA 891 Edgley v Federal Capital Press of Australia [2001] FCA 379 Haines v Levies (1987) 8 NSWLR 442 Jemal v ISS Facility Services Pty Ltd (Human Rights) [2015] VCAT 103 Kuyken v Lay (Human Rights) [2013] VCAT 1972 Lewin v ACT Health & Community Care Services [2002] ACTDT 2 NC v Queensland Corrective Services Commission [1997] QADT 22 Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132. Sinopoli v Harrison (Human Rights) [2017] VCAT 355 Sivanathan v Commissioner of Police (NSW) (2001) NSWADT 44 Slattery v Manningham CC (Human Rights) [2013] VCAT 1869 Tsikos v Austin Health [2022] VSC 174 Wotton v Queensland [No 5] (2016) 352 ALR 146
Texts Cited:	None cited
Category:	Principal judgment
Parties:	Nyah Amponsem (Applicant) Anglican Schools Corporation (Respondent)
Representation:	Applicant (Self-Represented) Wotton and Kearney (Respondent)
File Number(s):	2024/00066874
Publication restriction:	Nil