Student A by his tutor Peter Johnston v Council of Newington College

1. [1]

   THE COURT: On 14 October 2025, the Court heard argument in an appeal brought from a decision of Parker J (the primary judge) in which his Honour concluded that the word “youth” in an 1873 deed of trust (the Deed) was used in a gender-neutral sense, and did not mandate male-only enrolment at Newington College (the College): Student A v Council of Newington College [2025] NSWSC 534 at [168] (the primary judgment or PJ). To put the matter another way, his Honour held that the Deed did not preclude the admission of girls to the College.

2. [2]

   As a consequence of this conclusion, his Honour dismissed the plaintiff’s claim for declarations and other relief. Given the public interest in the expeditious resolution of the challenge to his Honour's decision and the fact that the Court was in a position to do so, orders were made at the conclusion of the hearing on 14 October 2025 dismissing the appeal. What follows are the Court’s reasons for making those orders.

Background

1. [3]

   The proceedings arose out of the decision by the first respondent, the Council of Newington College (the Council), to introduce co-education and admit girls to what has historically been an all-male school. That initiative is due to start at the junior schools in 2026 and the senior school in 2028. The appellant (Student A), a current student at the College, commenced proceedings by his adult tutor challenging the Council’s decision on the basis that it was contrary to the objects clause in the Deed, namely “to provide an efficient course of education for youth”, his contention being that, understood in its historical context, the reference to “youth” was to boys and boys alone.

2. [4]

   The College is governed by the Newington College Council Act 1922 (NSW) (the Act) which, by s 1, gave corporate status to the Council. By s 13 of the Act, the Council is required to hold all the property at any time vested in it by virtue of s 6 of the Act upon trust “to carry or cause to be carried into effect… the general objects for which the said collegiate school was founded as set forth in [the Deed]”. It was common ground before the primary judge, and before this Court on appeal, that the “general objects” referred to in s 13 of the Act are to be equated with the statement of the object of the Trust in cl 3 of the Deed, namely “the provision of an efficient course of education for youth”.

3. [5]

   A fuller historical account of the background to the College’s foundation and the Deed is set forth at PJ [26]-[75] and these reasons assume familiarity with that background which it is not necessary to repeat.

The primary judge’s reasoning

1. [6]

   The essence of the primary judge’s reasoning may be distilled as follows.

2. [7]

   First, a critical question to be determined was the meaning of the word “youth” according to common educated usage at the time of the Deed: PJ [118]. Having regard to the first edition of the Oxford English Dictionary, finalised in 1928, which his Honour noted at PJ [76] was accepted by the parties as “the most authoritative” of several dictionaries referred to, the primary judge concluded at PJ [120] that:

3. [8]

   A different interpretation given to the word “youth” in the Barclays Complete and Universal English Dictionary, new ed (1848), and consistent with Student A’s preferred interpretation, could not “stand against the preponderance of the other dictionary entries in evidence”: PJ [123].

4. [9]

   Secondly, the context, which was relevant to take into account in the construction of the Deed, did not require a contrary conclusion. Indeed, the immediate context, namely the language in which the other provisions of the Deed was expressed, in fact reinforced the primary judge’s conclusion as to the plain and ordinary meaning of the term “youth”. As his Honour said, “[t]he language of the Deed is gender-neutral throughout”: PJ [125]. Of particular relevance, as shall be seen, was the use of the words “children” and “pupils” elsewhere in the Deed.

5. [10]

   Thirdly, the primary judge observed that the purpose of the Deed “was to provide a governing instrument for the College for the indefinite future” and that “militated against any restrictive reading of the Council’s powers”. Indeed both this purpose, and the reference to the “efficient course of education” in the objects clause, were expressed in broad language: PJ [126]. As the primary judge held at PJ [127]:

6. [11]

   Fourthly, the Deed only imposed two limitations on the Council in making these judgements. The first was as to the religious doctrine to be taught, the second was in relation to education being “made available to nominated children of Church ministers between certain specified ages” (emphasis added): PJ [129]. Not only was there no express limitation as to the gender of the youth to be educated but the second limitation or obligation contemplated that education would be provided within the College to the children of Methodist ministers which, on its face, must have included girls.

7. [12]

   Fifthly, allied to these considerations, was the power reposed in the Council under cl 7 of the Deed to “determine and regulate from time to time the terms, conditions and regulations upon and subject to which pupils thereof respectively shall be admitted” (emphasis added). As to this, the primary judge considered “the gender-neutral language concerning enrolments (‘pupils’)” to be “particularly significant”, holding that “[i]f a male-only enrolment policy was to have been mandated, that is precisely where one would expect to see the use of male-only language”: PJ [130].

8. [13]

   His Honour’s ultimate conclusion at PJ [132] was that:

9. [14]

   In light of this conclusion, his Honour took the view that there was “no occasion to consider the ‘surrounding circumstances’ for the purpose of clarifying the Deed’s meaning” but he nevertheless did so against the contingency that he was incorrect in his principal conclusion: PJ [133].

10. [15]

    The surrounding circumstances relied upon by Student A at first instance (and indeed in this Court) as indicating a male-only meaning for “youth” in cl 3 of the Deed were as follows:

11. [16]

    As to these matters, the primary judge held that the Newington School (a different institution from the College that was instituted by the Deed) was not continued by the Deed and, in any event, the reference to this School and the Kingswood and Woodhouse Grove Schools and their all-male constituencies said nothing about whether they would have had power to enrol girls. The third and fourth matters supported a broader interpretation and “reinforce[d] the choice of language” of the Deed, preserving flexibility for the future: PJ [148].

Grounds of appeal and Notice of Contention

1. [17]

   Student A appealed on the following grounds:

2. [18]

   The first two grounds of appeal are two sides of the same coin, challenging the primary judge’s ultimate conclusion.

3. [19]

   The third and fourth grounds of appeal contain discrete challenges, the third ground relating to a particular evidentiary ruling, the fourth to a finding that the so-called “ancient documents rule” could not be enlivened to admit evidence of subsequent conduct to inform the meaning of the word “youth” in the Deed.

4. [20]

   The Council and the Attorney General for the State of New South Wales each filed a notice of contention (on 5 September 2025 and 9 September 2025 respectively) in the following terms:

5. [21]

   It is convenient to deal with appeal grounds 3 and 4 first prior to addressing the challenge to the primary judge’s ultimate conclusion.

6. [22]

   The background to this ground of appeal can be stated in short detail.

7. [23]

   At first instance, Student A filed but ultimately did not read an expert report of a Dr Laugesen to which, according to the transcript, there were in the order of 10 volumes of attachments, largely comprising newspaper articles from the 19th century, stretching from the 1850s through to the 1880s, which included references to the term “youth”.

8. [24]

   Mr Izzo SC, who appeared for Student A both at first instance and on appeal, had indicated to the primary judge that he wished to rely upon a selection of the articles identified by Dr Laugesen, presumably with the benefit of electronic search tools (approximately 30 in number but to which he only intended to draw attention to five) for the purpose of demonstrating the contemporaneous usage of the term “youth”.

9. [25]

   This course was opposed by Mr Hutley SC, appearing for the College, on a number of grounds including relevance and by reference to s 135 of the Evidence Act 1995 (NSW). His arguments included that:

10. [26]

    In the course of argument as to the admissibility of these articles, it was established as “common ground” that “between 2 to 3% [of the articles] were clearly gender specific and the rest - up to about 13% - were possibly or likely to be gender specific…The rest, about 90%, were clearly gender non-specific.”

11. [27]

    The primary judge admitted the articles Mr Izzo sought to tender on a provisional basis, subject to relevance, and admitted the balance of the articles (approximately 490 in number) tendered by Mr Hutley on a similar basis.

12. [28]

    The primary judge did not place any reliance on any of the small number of individual quotations to which he was taken in argument by Mr Izzo at first instance although whether he formally rejected their tender is not entirely clear. His Honour’s reasoning was as follows:

13. [29]

    Whether formally rejected or not, his Honour was correct not to place any reliance on the handful of quotations to which he (and this Court) were taken in argument. To the extent that a small selection of references in those quotations connected “youth” with boys, that was driven by the context of the subject matter of the articles in which the quotation appeared and said nothing as to the general meaning or usage of that expression as at 1873. In any event, the few quotations which did align youth with male youth were against a sea of articles in which the expression was used in a wholly non-gendered way. These one or two examples could not establish a foundation for the existence of a common usage of the term “youth” which supported the interpretation of the term which was advanced on behalf of Student A and, in any event, do not assist in establishing the interpretation of the term “youth” in the Deed.

14. [30]

    Appeal ground 3 must be dismissed.

15. [31]

    At PJ [162], the primary judge held that:

16. [32]

    The so-called “ancient documents rule” was invoked at first instance as an exception to the general rule that a contract cannot be construed by reference to the parties’ subsequent conduct. As the primary judge pointed out, one frequently cited statement of that exception is that of Sir Edward Sugden (later Lord St Leonards LC), in Attorney-General v. Drummond (1842) 1 Dr & War 353 in which his Lordship said:

17. [33]

    “Contemporaneous usage” in this context refers to usage contemporaneous with the “ancient instrument” in question. That usage cannot be used to create ambiguities which the judge construing the instrument does not consider exist. In the present case, the primary judge did not consider that the Deed gave rise to any ambiguity as to the meaning of the word “youth”. We agree. The non-gendered meaning of the word “youth” is not a recent development. The meaning of the word “youth” has not “become obscure” over time: cf. Wickman Machine Tool Sales Ltd v L Schuler AG [1974] AC 235 at 261 per Lord Wilberforce.

18. [34]

    We agree entirely with the primary judge’s conclusion that “[i]n its own terms … the ancient documents rule cannot apply” and that:

19. [35]

    To the extent that Student A also sought to rely upon the ancient documents rule to justify reliance upon the body of newspaper articles tendered, and submitted that ambiguity was not a pre-requisite for this form of use, the points already made in relation to ground 3 make plain that the vanishingly small number of quotations sought to be relied upon were quite incapable of overcoming the plain and ordinary meaning of the term “youth” when read in the context of the Deed as a whole and the predominant contemporaneous understanding of that term at large.

20. [36]

    Appeal ground 4 must be dismissed.

21. [37]

    These grounds essentially contain the challenge to the primary judge’s ultimate conclusion, and the arguments advanced in support of them closely mirrored those which had been made and rejected at first instance.

22. [38]

    Essentially for the reasons the primary judge gave, we do not consider that his Honour erred in his construction of the Deed or his interpretation of the word “youth”. On a rehearing of the matter, our view accords with his Honour’s conclusion.

23. [39]

    The word “youth” is, on its face, gender-neutral. Nor did Student A submit that such a usage of the term as at the date of the Deed was heterodox. Indeed it was supported by most of the dictionaries referred to, including that considered by both parties to be the most authoritative, namely the Oxford English Dictionary.

24. [40]

    That meaning was consistent with the drafter’s use of the gender-neutral words “children” and “pupils” elsewhere in the Deed. If the interpretation of the term “youth” were as contended by Student A, those subsequent references to “children” and “pupils” must be read as effectively referring only to “sons” and “boys”. Not only could these terms have been used by the drafter had it been intended that “youth” refer to “boys” and boys alone, but the use of the word “children” would be particularly problematic and a source of real confusion if, by extension, it was intended to apply to boys alone. The rights of Ministers under the Deed to have their children educated “at the said Wesleyan Collegiate School” (emphasis added) would not have meant what the Deed plainly said on its face to the extent that those children included girls.

25. [41]

    Mr Izzo submitted that if the word “youth” is read as being confined to “boys” then the gender-neutral words “children” and “pupils” are capable of being read in a way confined to boys without doing violence to the language. That approach, in our view, ignores that the Deed must be construed as a whole and it is inappropriate to construe one word (here “youth”) in a way that then drives the meaning of the balance of the document. The interpretative significance of all of the words used in the Deed has to be considered when giving meaning to the Deed as a whole.

26. [42]

    The use of the expression “to provide an efficient course of education for youth” (emphasis added) also supported the interpretation favoured by the primary judge insofar as it invested a measure of broad discretion in the members of the Council in relation to the provision of education for youth. So, also, it was in the Council that authority was reposed for determining the regulations and conditions to be attached to the admission of pupils. These arrangements were consistent with the general intention, reflected in the recitals to the Deed, to place “the control and management” of the College in the hands of the Council.

27. [43]

    That the Council only proceeded to admit boys to the College did not rationally bear upon the meaning of “youth”. It was within the Council’s broad discretion to confine entry to boys (as it did) but the Deed did not compel it to do so or preclude it from admitting girls, whether at elementary or secondary levels. As far as the arrangement for the children of Wesleyan Ministers was concerned, the Council was obliged to admit a “certain number” of those children to be determined by a Committee comprised of members of the Council and of the Committee of the Theological Institution. This in itself is a contextual indication that the makers of the Deed intended to confer on those responsible for the College a discretion that was broad enough to encompass the admission of girls, but did not compel that to occur.

28. [44]

    In this context, historical materials admitted into evidence before the primary judge evidenced a contemporaneous fluidity and changing attitude towards the education of girls at the time, a phenomenon which was entirely consistent with the drafter of the Deed and the parties to it intending to retain a degree of flexibility as to the use of the extensive lands that were the subject of the Deed for the education of both boys and girls, with the deliberate use of the word “youth” ensuring this possibility, even if not immediately to be taken up. Thus, in one source it was noted that, although the University of Sydney did not admit females until the 1880s, by 1871, junior and senior public examinations for both boys and girls were being conducted under its auspices. Further, it is not even clear that the Sydney University Act 1850 (NSW) precluded the admission of women to the University. In this context, the recital to the University Extension Act of 1884 (NSW) suggests that it was passed only by reason of the perceived need to put the matter beyond doubt.

29. [45]

    Just as he had done at first instance, Mr Izzo sought to rely on surrounding circumstances to support his contention (see [15] above). That submission may be dealt with in relatively short measure.

30. [46]

    First, resort to surrounding circumstances would be required to produce a very compelling case for departure from the ordinary meaning of the language used in an instrument. The circumstances invoked in the present case were not of that character and at best were neutral in their effect. Thus, the fact that the former institution known as Newington School only educated boys was not to the point. Far from that institution being continued by the Deed, its ending was confirmed and, in any event, nothing was known as to that School’s constitutive legal framework and, in particular, whether it was expressly required to be a school for boys only. The same observation may be made in respect of Kingswood and Woodhouse Grove Schools, also referred to in the Deed.

31. [47]

    Next, as Mr Hutley submitted, the fact that the College, following execution of the Deed and its opening on 18 January 1880, only admitted boys said nothing as to the Council’s power to admit pupils of both sexes, including children of Methodist Ministers.

32. [48]

    Next, consideration of the provision of schooling for girls and young women by the Church and indeed government at the time of Deed pointed, if in any direction, towards keeping the possibility open that the lands secured by the Deed for the education of youth may also be used for the schooling of girls, whether by means of co-education as understood in now contemporary terms, or separate education of both boys and girls on the same land and under the auspices of the same institution. As the primary judge observed at PJ [149], "[a]dmission of girls would have left the Council free to choose such segregation measures as it considered necessary or desirable to achieve an 'efficient course of education' for all the College's pupils".

33. [49]

    Within the Wesleyan Methodist Church, the contemporaneous evidence demonstrated an open and ongoing debate about the approach to be taken to improving the educational opportunities for girls. Certainly, there was nothing in the evidence to suggest that the Church had reached a position of opposition to facilitating new schooling opportunities for girls, in such a way as might have provided support for a conclusion that the Deed was intended to foreclose the future use of the College and the property being devoted to the purposes of the College for the education of girls.

34. [50]

    Finally, although it was not necessary for the primary judge's determination (nor this Court's), submissions were made contrasting the 1872 recommendation by the Newington School Council, which referred to "sons" and "boys", and the resolution ultimately adopted by the Methodist General Conference in February 1873, which used gender-neutral terms (in turn picked up by the Deed). It is sufficient to say, in the primary judge's language at PJ [150], that the change in language from "sons" and "boys" to "youth" and "children" "illustrates quite strikingly that a deliberate choice was made to use gender-neutral language".

35. [51]

    Appeal grounds 1 and 2 must be dismissed.

36. [52]

    In light of these conclusions, it is not necessary to consider the Notice of Contention.

Conclusion

1. [53]

   It was for the foregoing reasons that the Court made orders granting leave to appeal (to the extent necessary) but dismissing the appeal, and awarding costs to the Council and the 26th respondent.