The court battle is over. There will be girls at Newington

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A boy who sued his private school, Newington College, over its historic decision to become co-ed has failed in a Court of Appeal bid to prevent the institution from enrolling girls.

The state’s top court dismissed the case on Tuesday and ordered the boy to pay the school’s legal costs, ending another chapter in the long-running co-ed saga that has resulted in grown men crying and national media attention.

Newington College in Stanmore is set to go co-ed from 2026 for year 5 and kindergarten, and become fully co-ed by 2033.

The high-profile legal showdown over the private school’s move to co-education hinged on the interpretation of the word “youth” contained in the college’s original deed of indenture.

Supreme Court judge Guy Parker earlier this year ruled in favour of the school, using dictionary definitions to conclude that “youth” in the 1873 trust deed was used in a gender-neutral sense and “does not mandate male-only enrolment at the college”.

In August, the student – who was supported and funded by a coalition of old boys – moved to challenge that decision. But after 4pm on Tuesday, NSW Chief Justice Andrew Bell, president of the Court of Appeal Justice Julie Ward, and Justice Stephen Free threw out the case.

Barrister Michael Izzo, SC, representing the boy who cannot be named for legal reasons, told the appeals court on Tuesday the original judge should have considered contextual usage of the word youth in newspaper clippings, and not 19th-century dictionary definitions alone.

“Dictionaries are not evidence,” Izzo said. “Dictionaries are a tool, and in our submission, there’s no reason why other tools can’t also be used.

“And that’s really our argument, that his honour erred, excluding from the evidence contemporaneous evidence of usage as embodied by a number of newspaper articles.”

He then went on to list examples where he said the word youth was synonymous with boys and men, including one featuring the work of Victorian novelist Anthony Trollope who wrote about the “the elite of the youth of the mother country”.

Other newspaper clippings included an April 1873 copy of the Gippsland Times, which said: “The Phoenix Boundary company employs 70 boys, thus solving the problem now ancient put forth in many places, what is become of our colonial youth, and how shall we make them useful?”

Newington’s barrister, Noel Hutley, SC, said the original trust deed “deliberately used language … which left things flexible. And we say that’s the beginning and end of it.”

He also said drawing from the use of the word “youth” from historic newspaper articles was “doomed to failure”.

“One would have to construe each article whether [youth was] an ordinary meaning or one which was dictated by context. And that’s an exercise [where] your honour would have to go through each article.

“The language is not ambiguous. The language is clear.”

One judge, Ward, questioned Izzo about why the decision to lodge the appeal was made so late “in circumstances where you presumably knew that steps were being taken in relation to the admission of women or girls to the school in the next school year”.

Newington headmaster Michael Parker welcomed the decision.

He indicated there was an issue about raising funds for the appeal.

In response, Ward said: “There was no recognition in an accompanying affidavit about money that has already been spent and families that have already committed themselves in relation to the next school year, is that correct?”

After the decision, Newington headmaster Michael Parker said he was pleased to put the court proceedings behind him, and continue to move forward with “our exciting, inspiring and inclusive co-educational vision” from next year.

“We look forward to providing a positive and united welcome to the first girls who will arrive on our campuses in less than four months,” he said.

“In the meantime, we will continue to maximise opportunities for our current students whilst preparing for the move to become a fully co-educational school by 2033.

“We are very proud of the rich history of our great school. We are very optimistic for all our current students and their ability to thrive in life beyond our gates, and we are deeply committed to continuing to evolve, improve and build on our best traditions to be an even better school in the future.”

Earlier this week, it was revealed an investigation into claims of governance problems at the college found “during the relevant period, the total number of councillors was less than the 24 members required by the Newington College Council Act.”

But it also noted there was always a quorum of nine people at council meetings and that decisions taken by the council during the period were not invalidated, a letter to the lawyers for the anti-coed group said.

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