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[2025] NSWCA 230
respondent. Leave to appeal was granted to the extent necessary; the appeal was dismissed; the appellant was ordered to pay the costs of the first and 26th respondents. [53]
The Court of Appeal upheld the finding that an 1873 deed requiring an efficient course of education for “youth” did not require Newington College to remain boys-only. The Deed used other gender-neutral terms, gave the Council discretion over admissions, and did not expressly restrict enrolment by sex. The newspaper extracts and later boys-only admissions did not change the Deed's meaning. The appeal was dismissed.
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1,868 words · generated 06/10/2026
Student A, a current Newington College student, challenged the Council's decision to introduce co-education. The planned change was due to begin in the junior schools in 2026 and the senior school in 2028 [3]. The challenge turned on an 1873 deed of trust. Its stated object was “to provide an efficient course of education for youth” [3]-[4].
6 cited instruments linked from this judgment.
Student A argued that, read in its historical setting, “youth” meant boys and young men only. On that construction, the Deed would prevent girls from being admitted. The Council and the Attorney General disputed the challenge. The primary judge concluded that “youth” was gender-neutral and dismissed the claim for declarations and other relief [1], [13].
On appeal, Student A raised four grounds. The first two challenged the construction of “youth”. The third concerned the treatment of selected nineteenth-century newspaper articles. The fourth concerned the ancient documents rule and whether it could apply without a finding of ambiguity [17]-[19].
The Court of Appeal dismissed all four grounds. It granted leave to appeal to the extent that leave was needed and ordered Student A to pay the costs of the Council and the 26th respondent, the Attorney General [2], [53]. The Court did not decide the Council's and Attorney General's Notice of Contention. That notice argued that even if “youth” meant boys and young men, the object clause would not necessarily exclude co-education [20], [52].
The Court agreed with the primary judge's construction, saying that its view on rehearing accorded with his Honour's conclusion [38]. The reasoning began with the ordinary meaning of “youth”. The Court described the word as “on its face, gender-neutral” and noted that Student A did not contend that gender-neutral usage at the date of the Deed was heterodox [39]. The gender-neutral meaning was supported by most of the dictionaries considered, including the Oxford English Dictionary, which both parties accepted as the most authoritative [39].
The Court also considered the Deed's language as a whole. Elsewhere it used “children” and “pupils”, both gender-neutral expressions [40]. A construction limiting “youth” to boys would require those other terms to be read as effectively meaning “sons” and “boys”. The Court considered that especially problematic for the Deed's provision concerning ministers' children being educated at the school: if that included daughters, a boys-only meaning would not fit what the Deed said on its face [40].
The Court rejected the argument that “children” and “pupils” could simply be read as referring to boys. The Deed had to be construed as a whole, rather than giving one word a contested meaning and then making the rest of the instrument conform to it [41].
The object clause and admissions provisions also mattered. The reference to “an efficient course” of education left the Council with a measure of discretion about the education provided. The Council also had authority to set admissions regulations and conditions [42]. The Court treated those arrangements as consistent with the Deed's recitals, which placed control and management of the College in the Council [42]. The Deed did not compel the Council to admit girls, but neither did it prohibit their admission. The Council's historical choice to admit boys did not determine the scope of its power under the Deed [43], [47].
The historical evidence did not require a different construction. The Court considered the materials about girls' education to show fluidity and changing attitudes at the time, rather than a settled intention to exclude girls from the College's future use [44], [48]-[50]. It noted evidence of examinations for boys and girls under the auspices of the University of Sydney by 1871, and that it was not clear the Sydney University Act 1850 precluded women's admission [44]. The Court also referred to the change from earlier references to “sons” and “boys” to the gender-neutral terms “youth” and “children” in the relevant resolution and Deed [50].
The Court treated the other surrounding circumstances as insufficient to displace the ordinary meaning. The former Newington School, Kingswood and Woodhouse Grove were male-only schools, but the Court observed that this did not establish that their governing arrangements legally required male-only enrolment, or that the Deed imposed the same restriction [46]. The College's initial boys-only admissions likewise did not establish that the Council lacked power to admit girls [47].
The judgment addresses construction of this particular Deed. It does not purport to set out a complete test for interpreting every trust instrument. Its central holding is that, on the language and materials before it, “youth” in the 1873 Deed was gender-neutral [38]-[44].
Before the appeal, the primary judge had already reached that construction. The Court of Appeal's decision left that result undisturbed. It confirmed that, in this dispute, the Deed did not mandate a boys-only admissions policy [1]-[2], [51]. It also rejected the proposed use of the ancient documents rule to introduce evidence where the Court did not consider the relevant language ambiguous [31]-[36].
The Court described the ancient documents rule by reference to Sir Edward Sugden's statement in Attorney-General v Drummond (1842) 1 Dr & War 353. That statement permits resort to contemporaneous usage “for the construction of ambiguities in ancient instruments” [32]. The Court's qualification was important: such usage cannot be deployed to create an ambiguity that the judge construing the instrument does not consider to exist [33]. It also concluded that the gender-neutral meaning was not a recent development and that “youth” had not become obscure over time [33].
The judgment therefore supports a limited point about the interpretive method applied in this case. Historical conduct and usage did not displace the ordinary, gender-neutral meaning where the Court found no ambiguity and where the other language and context of the Deed supported that meaning. The Court also agreed that subsequent conduct is not automatically probative of an instrument's original meaning; the discussion at [34] refers to the danger of considering later conduct without other relevant material.
At [39], the Court said: “The word ‘youth’ is, on its face, gender-neutral.” In plain English, the Court considered the ordinary meaning of the word capable of including girls and young women, not just boys and young men. It also said that the parties' dictionary evidence supported that reading.
At [40], the Court relied on “children” and “pupils” elsewhere in the Deed. The practical significance was that the instrument's other words did not signal a boys-only scheme. A boys-only construction would make those terms function as if they said “sons” and “boys”, despite the Deed not using those narrower words.
At [41], the Court said the Deed “must be construed as a whole”. In plain terms, the meaning of one word cannot be decided in isolation and then imposed on every other provision. The whole instrument, including the admissions and ministers' children provisions, had to be read together.
At [43], the Court distinguished between discretion and compulsion. The Council had been able to confine admissions to boys, as it had done, but the Deed did not require that policy or prevent the admission of girls. The conclusion concerned the scope of the Deed, not whether the Council had to adopt co-education.
At [33], the Court explained that contemporaneous usage could not “create ambiguities” that the Court did not consider existed. In plain English, evidence about how people used a word around the time of an old instrument may assist in resolving a real uncertainty, but it cannot itself make clear language uncertain.
At [29], the Court found that the few newspaper quotations linking “youth” to boys were context-specific and stood against a substantially larger body of non-gendered uses. That was why those extracts did not establish a general male-only meaning.
The judgment is most directly relevant to disputes about the meaning of “youth” in this particular 1873 Newington College Deed. Its result depended on the Deed's wording, including its references to “children”, “pupils” and an “efficient course” of education, as well as the admissions discretion identified by the Court [40]-[43].
The reasoning may also be relevant where a party seeks to argue that a broadly worded educational trust instrument requires a single-sex institution. The judgment indicates that the surrounding provisions, the instrument as a whole, the ordinary meaning of its words, and the decision-making powers conferred by the instrument can all bear on that question [39]-[46]. It does not establish that every similarly worded deed permits co-education; the Court's conclusion was tied to this Deed and the evidence before it.
The evidentiary discussion is relevant to proposed reliance on isolated historical quotations to prove general word usage. The Court considered the number and selectivity of the extracts, their context, and the broader pattern in the material [23]-[30]. It is also relevant where a party invokes the ancient documents rule to rely on historical usage or later conduct: the Court required an ambiguity that the construing court itself recognised [31]-[35].
The decision does not resolve the broader proposition in the Notice of Contention that a boys-only meaning of “youth” would still not exclude co-education. The Court expressly found it unnecessary to consider that argument [20], [52].
The judgment is dated 20 October 2025. The supplied judgment contains no account of decisions made after it, so later judicial treatment cannot be identified from this source.
The authorities discussed in the judgment are earlier authorities. Attorney-General v Drummond is cited for the formulation of the ancient documents rule concerning ambiguities in ancient instruments [32]. Wickman Machine Tool Sales Ltd v L Schuler AG [1974] AC 235 is referred to in relation to whether a meaning had become obscure over time and to the limited value of subsequent conduct [33]-[34]. The judgment's headnote describes Wickman as distinguished.
The Court also referred to Student A v Council of Newington College [2025] NSWSC 534, the primary judgment under appeal [1]. It agreed with the primary judge's construction, but this is the Court of Appeal's own decision and reasoning, not later treatment by another court.
The Court expressly left the Notice of Contention undecided. It therefore did not determine whether an object confined to education for boys and young men would, without more, exclude co-education [20], [52]. That issue should not be treated as resolved by the dismissal of the appeal.
The judgment also did not determine whether the ancient documents rule could apply in circumstances where a court did find ambiguity in a trust instrument. It stated that the rule could not create ambiguity and concluded that this Deed was not ambiguous [33]-[36]. Its reasoning does not answer every possible question about the rule's reach in other cases.
The Court did not decide that the Council must admit girls. It held that the Deed did not compel a boys-only policy and that the Council's authority included discretion over admissions [42]-[43]. Whether particular future admissions arrangements comply with other applicable requirements was not the issue determined in this appeal.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Student A by his tutor Peter Johnston v Council of Newington College [2025] NSWCA 230
Hearing dates: 14 October 2025
Date of orders: 14 October 2025
Decision date: 20 October 2025
Before: Bell CJ; Ward P; Free JA
Decision: 1. To the extent that leave to appeal is needed, leave is granted.
2. The appeal is dismissed.
3. The Appellant is to pay the costs of the First and 26th Respondents.
Catchwords: EQUITY – Trusts and trustees – Trust instrument – interpretation – where the object of an 1873 deed was to “provide an efficient course of education for youth” – whether “youth” referred to boys only or was gender-neutral – unambiguous gender-neutral meaning – “ancient document rule” not enlivened – no compelling surrounding circumstances
Legislation Cited: Evidence Act 1995 (NSW) s 135
Newington College Council Act 1922 (NSW) ss 1, 6, 13
Sydney University Act 1850 (NSW)
University Extension Act of 1884 (NSW)
Cases Cited: Attorney-General v. Drummond (1842) 1 Dr & War 353
Wickman Machine Tool Sales Ltd v L Schuler AG [1974] AC 235
Texts Cited: Barclays Complete and Universal English Dictionary, new ed, (1848)
Oxford English Dictionary, 1st ed (1928)
Category: Principal judgment
Parties: “Student A” by his tutor Peter Johnston (Appellant/Applicant on the Summons)
Council of Newington College (First Respondent)
Mr Tony McDonald (Second Respondent)
Mr Chris Collings (Third Respondent)
Mr Andrew Walsh (Fourth Respondent)
Mr Tony Bosman (Fifth Respondent)
Rev. Punam Bent (Sixth Respondent)
Rev. Ian Diamond (Seventh Respondent)
Mr Tony King (Eighth Respondent)
Ms Rhys Kelly (Ninth Respondent)
Mr David Torrible (Tenth Respondent)
Mr Nicholas Heaton (11th Respondent)
Ms Justine Richardson (12th Respondent)
Rev. Radhika Sukumar-White (13th Respondent)
Ms Melissa Abu-Gazaleh (14th Respondent)
Ms Tina Morrell (15th Respondent)
Mr Denver Don Paul (16th Respondent)
Mr Peter Crawley (17th Respondent)
Rev. ‘Oto Faiva (18th Respondent)
Prof. Andrew Harris (19th Respondent)
Ms Rachel Stock (20th Respondent)
Mr Mario Peter Isaias (21st Respondent)
Mr Justin Papps (22nd Respondent)
Ms Sharon Tindall-Ford (23rd Respondent)
Rev. Jason Kioa (24th Respondent)
Mr Justin Bosilkovski (25th Respondent)
Attorney General of New South Wales
(26th Respondent)
Representation: Counsel:
M Izzo SC with D Barlin and A Mohseni (Appellant/Applicant on the Summons)
N Hutley SC with B Michael and D Reynolds (First Respondent)
Submitting Appearance (Second – 25th Respondents)
P Singleton (26th Respondent)
Solicitors:
Brown Wright Stein Lawyers (Appellant/Applicant on the Summons)
Minter Ellison (First Respondent)
Wotton Kearney (Second – 25th Respondents)
Crown Solicitor’s Office (26th Respondent)
File Number(s): 2025/243213
Publication restriction: N/A
[This headnote is not to be read as part of the judgment]
These proceedings arose out of the decision of the first respondent, the Council of Newington College (the Council), to introduce co-education and admit girls to the historically male-only school, Newington College (the College). A current student at the College (Student A) challenged that decision and sought declarations and other relief on the basis that it was contrary to the objects clause in an 1873 deed of trust (the Deed), namely “to provide an efficient course of education for youth”. Student A’s contention was that the Deed precluded the admission of girls because, understood in its historical context, its reference to “youth” was to boys and boys alone.
In support of that contention, Student A relied both at first instance and on appeal on the definition of “youth” in the 1848 edition of Barclays Complete and Universal English Dictionary, as well as a number of surrounding circumstances, including that the then existing Newington School (a different institution from the College instituted by the Deed) had always been a male-only School, that the Deed referenced other Schools also with male-only constituencies, and the status of both Church and government policies at the time.
Student A also sought to rely on the “ancient documents rule” to admit evidence of subsequent conduct, as well as contemporaneous evidence, said to inform the meaning or usage of the term “youth” as of 1873. The contemporaneous evidence comprised of approximately 30 newspaper articles stretching from the 1850s through to the 1880s (the newspaper articles), which had been selectively chosen from a much larger number of articles (around 500) attached to an expert report. Student A, both at trial and on appeal, brought the court’s attention to quotations in five such articles which were said to equate the meaning of “youth” with “boys”.
The primary judge found that the meaning of “youth” in cl 3 of the Deed was unambiguously gender-neutral, and dismissed the plaintiff’s claim for declarations and other relief. Student A appealed on four grounds. The first two challenged the ultimate conclusion as to the meaning of the term “youth” in the Deed. The third and fourth grounds of appeal contained discrete challenges, the third to the non-admission of the newspaper articles, and the fourth to the finding that the “ancient documents rule” was not enlivened.
The Court (Bell CJ, Ward P, Free JA) held, dismissing the appeal:
Attorney-General v. Drummond (1842) 1 Dr & War 353*,* cited*.*
Wickman Machine Tool Sales Ltd v L Schuler AG [1974] AC 235, distinguished.
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.
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.
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.
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”.
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 essence of the primary judge’s reasoning may be distilled as follows.
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:
“the ‘plain and ordinary’ meaning of the term, in the OED’s sense five, is gender-neutral. It includes young women and girls as well as young men and boys”.
The reference to “the OED’s sense five” was to the following definition of “youth”: “Young people (or creatures) collectively; the young. (With or without the; now always construed as plural.)”
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].
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.
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]:
“Providing an ‘efficient course of education’ plainly allowed for a great deal of judgment in deciding what to teach and how to teach it. The need to respond to changing educational theories as well as regulatory, social and economic pressures would have been readily foreseeable. Furthermore, the task was to provide ‘an’ efficient course of education, which implied that the course could be directed at a particular segment of ‘youth’. This in turn implied a judgment about who was to be admitted to the School, at what age, and what educational attainments were to be aimed at”.
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.
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].
His Honour’s ultimate conclusion at PJ [132] was that:
“the meaning of the term ‘youth’ in cl 3 of the Deed is unambiguous. There is nothing to qualify its ordinary gender-neutral meaning. It must be presumed that that was the meaning which the parties to the Deed intended to express”.
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].
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:
“1. The then existing Newington School, which had always been a male-only school, was referred to in the Deed with the new College being characterised as a continuation of it.
- Kingswood and Woodhouse Grove schools in England were referred to in the Deed in connection with the provision of education for the children of ministers, which was also to be a function of the new College. Those schools were likewise single-sex male schools.
- By the time the Deed was executed, the provision of schooling for girls and young women had been under consideration by the Church, but nothing had been decided, and the issue had been held over with female education, in counsel’s submission, being on a separate and different track from male education.
- Government policy for education at secondary level had not embraced coeducation at the time of the Deed and only single-sex-schools existed at secondary level.”
“1 The trial judge erred in finding that the word ‘youth’ as contained in the Deed of Indenture dated 23 October 1873 ("the 1873 Deed**"****)** was used in a gender-neutral sense.
2 The trial judge ought to have found that the word ‘youth’ as contained in the 1873 Deed refers to boys and young men.
3 The trial judge erred in finding that a collection of historical newspaper articles was inadmissible as evidence of the meaning of the word ‘youth’ in 1873.
4 The trial judge erred in finding that the ‘ancient documents rule’ cannot apply in the absence of a finding that the relevant Deed is ambiguous or obscure.”
The first two grounds of appeal are two sides of the same coin, challenging the primary judge’s ultimate conclusion.
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.
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:
“Even if the meaning of ‘youth’ in the 1873 Trust Deed were confined to boys and young men, the appellant has not demonstrated, and it is not the case, that the object set forth in the 1873 Trust Deed, ‘to provide an efficient course of education for’ (ex hypothesi) boys and young men, excludes co-education”.
The background to this ground of appeal can be stated in short detail.
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”.
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”.
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:
the corpus of documents identified by Dr Laugesen only represented a limited search of contemporaneous documents;
only a small and highly selective portion of articles from that limited search was proposed to be referred to;
this could not properly bear upon a consideration of usage of the word “youth” in the Deed, and would be of no assistance in the undertaking of a conventional question of construction;
it would be “beyond oppressive” to have to consider the entire corpus of articles identified not only by reason of their sheer number but by reason of the need to examine the context in which the term “youth” was used in each article; and
subject to limitations, dictionaries were the appropriate reference source rather than myriad newspaper articles.
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.”
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.
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:
“[114] It may be accepted that the Court is engaged in an exercise of determining the meaning the words in the Trust Deed would have had for a contemporaneous bystander. Ultimately it is a question of recognised usage rather than ‘correctness’.
[115] But that cannot mean that any publication in which the word has been used with the relevant meaning is admissible into evidence. Dr Laugesen’s research in the present case uncovered hundreds of contemporaneous quotations. Counsel for the College was right, in my view, to say that to admit those quotations could lead to an avalanche of further argument (and perhaps, further evidence) about each and every quotation, dealing with that quotation’s context or the idiosyncrasies of its writer.
[116] There is a sense in which it can be said that a dictionary is only a collection of such quotations. But the use of dictionaries as an aid to determining the meaning of words is well established (see the discussion by Mahoney JA in Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 at 560-562). It was accepted by all parties in the present case. The practice is based on the status of dictionaries as authoritative works of reference, and thus as being some evidence (albeit not binding: Provincial at 560G) of recognised usage.
[117] There is an analogy between a dictionary entry and an expert opinion. This is not to say that the requirements of s 79 must be satisfied. But there is still a qualitative difference between such an entry and an individual published quotation. In my view, the latter is inadmissible as evidence of meaning.”
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.
Appeal ground 3 must be dismissed.
“I think that the term ‘youth’ in cl 3 of the Trust Deed is neither ambiguous nor obscure. In its own terms, therefore, the ancient documents rule cannot apply. And even if the evidence in question were admissible on the question of interpretation of the 1873 Deed, I do not think it makes any difference”.
“One of the most settled rules of law for the construction of ambiguities in ancient instruments is, that you may resort to contemporaneous usage to ascertain the meaning of the deed; tell me what you have done under such a deed, and I will tell you what that deed means”. (emphasis added)
“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.
We agree entirely with the primary judge’s conclusion that “[i]n its own terms … the ancient documents rule cannot apply” and that:
[163] … “the fact that when the College began operating in 1881 it had a boys-only admissions policy says nothing about the question of power which is in issue in this case. The same is so for the establishment of MLC School in 1886. Indeed, all that these subsequent events do is underline that in 1873 the question of admissions policies in Church schools had not been settled in any permanent way, and that this was a good reason for the use of gender-neutral language at that point. The case illustrates another point made by Lord Simon in Wickman (at 268-269): ‘subsequent conduct is of no greater probative value in the interpretation of an instrument th[a]n prior negotiations or direct evidence of intention: it might, indeed, be most misleading to let in subsequent conduct without reference to these other matters’.”
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.
Appeal ground 4 must be dismissed.
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.
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.
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.
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.
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.
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.
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.
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Revision made at [34], within quote, third sentence "then" changed to "than".
Student A by his tutor Peter Johnston
Council of Newington College [2025] NSWCA 230
(1991) 25 NSWLR 541
Leave to appeal was granted to the extent necessary; the appeal was dismissed; the appellant was ordered to pay the costs of the first and 26th respondents. [53]
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.
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.
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.
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.
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".
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.
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".
Appeal grounds 1 and 2 must be dismissed.
In light of these conclusions, it is not necessary to consider the Notice of Contention.