Student A v Council of Newington College

Medium Neutral Citation: Student A v Council of Newington College [2025] NSWSC 534

Hearing dates: 15 May 2025

Date of orders: 28 May 2025

Decision date: 28 May 2025

Jurisdiction: Equity - Expedition List

Before: Parker J

Decision: See [168]-[170]

Catchwords: EQUITY — Trusts and trustees — Trust instruments — Trust language – interpretation – where 1873 deed of trust established church school – where the object was “to provide an efficient course of education for youth” – where school previously adopted male-only admission policy – whether coeducation permissible – meaning of “youth” in trust deed – “plain and ordinary” meaning – evidence of contemporaneous usage – dictionary definitions – quotations from individual publications – admissibility – contextual factors – nature of instrument – constitution for ongoing institution – whether ambiguous – recourse to “surrounding circumstances” – 19th century educational practice – boys-only predecessor school – prior deliberations of church authorities – parol evidence rule – recourse to subsequent conduct of parties – subsequent adoption of boys-only admission policy – subsequent establishment of separate girls-only school – “ancient instruments” rule

Legislation Cited: Evidence Act 1995
Newington College Council Act 1922
Public Instruction Act 1880

Cases Cited: Attorney-General v. Drummond (1842) 1 Dr & War 353
Bishop of Natal v Gladstone (1866) LR 3 Eq 1
Byrnes v Kendle (2011) 243 CLR 253
Clyde Navigation Trustees v Laird (1883) 8 App Cas 658
Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337
Commonwealth v Hazeldell Ltd (1918) 25 CLR 552
Dasreef Pty Ltd v Hawchar 243 CLR 588
Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104
Prenn v Simonds [1971] 1 WLR 1381
Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541
Re Ferguson (1995) 58 FCR 106
Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 240 CLR 45
Sheppard v Smith [2021] NSWSC 1207
Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528
Wickman Machine Tool Sales Ltd v L Schuler AG [1974] AC 235

Texts Cited: Gender and Merit: Coeducation and the Construction of a Meritocratic Educational Ladder in New South Wales, 1880–1912” (2007) 43(1) Paedagogica Historica 119
Robert F. Norton, A Treatise on Deeds (1st ed, 1906, Sweet and Maxwell Limited)
Robert F. Norton, A Treatise on Deeds (2nd ed, 1928, Sweet and Maxwell Limited
Sir Kim Lewison, The Interpretation of Contracts (8th ed, 2024, Thomson Reuters)
Sir Kim Lewison, The Interpretation of Contracts in Australia (2nd ed, 2024, Law Book Co of Australia)

Category: Principal judgment

Parties: “Student A” bht, Peter Johns (Plaintiff)
Council of Newington College (First Defendant)
Tony McDonald (Second Defendant)
Chris Collings (Third Defendant)
Andrew Walsh (Fourth Defendant)
Tony Bosman (Fifth Defendant)
Reverend Punam Bent (Sixth Defendant)
Reverend Ian Diamond (Seventh Defendant)
Tony King (Eighth Defendant)
Rhys Kelly (Nineth Defendant)
David Torrible (Tenth Defendant)
Nicholas Heaton (Eleventh Defendant)
Justine Richardson (Twelfth Defendant)
Reverand Radhika Sukumar-White (Thirteenth Defendant)
Melissa Abu-Gazaleh (Fourteenth Defendant)
Tina Morrell (Fifteenth Defendant)
Denver Don Paul (Sixteenth Defendant)
Peter Crawley (Seventeenth Defendant)
Reverend ‘Oto Faiva (Eighteenth Defendant)
Andrew T. Harris (Nineteenth Defendant)
Rachel Stock (Twentieth Defendant)
Mario Peter Isaias (Twenty-first Defendant)
Justin Papps (Twenty-second Defendant)
Sharon Tindall-Ford (Twenty-third Defendant)
Reverend Jason Kioa (Twenty-fourth Defendant)
Justin Bosilkovski (Twenty-fifth Defendant)
Attorney General of New South Wales (Twenty-sixth Defendant)

Representation: Counsel:
M A Izzo SC/D Barlin (Plaintiff)
N C Hutley SC/B Michael/D J Reynolds (First Defendant)
P F Singleton (Twenty-sixth Defendant)
Solicitors:
Brown Wright Stein Lawyers (Plaintiff)
Minter Ellison (First Defendant)
Wotton Kearney (Second to Twenty-fifth Defendants)
Crown Solicitors (Twenty-sixth Defendant)

File Number(s): 2024/473840

Publication restriction: Nil

JUDGMENT

1. Newington College is a well-known Sydney independent school. Since its foundation in the nineteenth century, it has operated (at primary and secondary level) as an all-boys school. The school council has decided to introduce coeducation and has begun taking the steps required to give effect to that decision. The question raised in these proceedings is whether that is permissible under the College’s governing statute.

2. The College in its present form was established under the auspices of the Methodist Church (then known as the “Wesleyan Methodist Church”) pursuant to a deed of trust in 1873 (“Trust Deed”). The Deed provided for the establishment of both a “Collegiate School” and a “Theological Institution” on a large block of land at Stanmore in Sydney’s inner western suburbs, which had been acquired, partly by way of bequest and partly by way of purchase, for that purpose (“Stanmore Land”). Some further adjoining land was purchased in 1907 and incorporated into the Stanmore Land.

3. In 1977, the Methodist Church in Australia combined with the Presbyterian Church and the Congregationalist Church to form the Uniting Church, and the College continues under the auspices of that Church. At no stage, however, has enrolment been confined to adherents of the Church.

4. The College officially opened at the Stanmore site in 1881. The Theological Institution was also established there, but had been discontinued by 1922. The Stanmore Land is now wholly occupied by the College. It features extensive educational, sporting and administrative facilities.

5. The College is governed by the Newington College Council Act 1922 (“NCC Act”). Among other things, the Act gave corporate status to the school council under the name “Council of Newington College” (“the College Council”). The Council is ultimately responsible for the school’s operations.

6. Over time the College has expanded its operations to other sites. There are now two separate junior (primary) schools (Years K to 6), one elsewhere in Stanmore and the other in Lindfield. There is also an early learning centre for 3- to 5-year-olds (both boys and girls) at another site in Stanmore. The Stanmore Land remains the site of the main school campus, including the senior (secondary) school (Years 7 to 12).

7. In November 2023, the Council announced that it intended to “transition” the College to coeducation. Under this process, coeducation is to begin at the junior schools next year and at the senior school (that is, on the Stanmore Land) in 2028.

8. The Council’s decision was reached after a process of consultation with members of the school community, but remained controversial among some parents and alumni. In particular, it was claimed that assurances had been given in the course of fundraising that the College would remain a single-sex school. Those particular allegations are not relevant for the purpose of these proceedings. The litigation before the Court is concerned only with the Council’s power to introduce coeducation, and not with the merits of that decision.

Claims for determination

9. The proceedings were begun in December last year for the purpose of challenging the Council’s decision, and in particular the allocation of the College’s financial resources to the “transition” process. The plaintiff is one of the pupils at the school. Pursuant to orders made at an early stage of the proceedings, he is known as “Student A”.

10. The anonymisation order was made to protect the plaintiff’s privacy. That is particularly appropriate in the present case, as the proceedings are being conducted on his behalf by an adult tutor. Student A’s personal feelings on the question of coeducation are not known and his participation as plaintiff is purely nominal. It is his tutor who has the conduct of the proceedings in his name, and who was ultimately responsible for the case presented to the Court.

11. As I will describe in more detail below, the NCC Act requires the College (at least so far as its operations on the Stanmore Land are concerned) to be conducted in accordance with the objects set out in the Trust Deed. The key provision in the Deed refers to the object of the College being “to provide an efficient course of education for youth”.

12. The principal contention made on behalf of Student A in these proceedings is that the word “youth” in the Trust Deed refers only to boys and young men, and does not include young women and girls. It is said to follow from this that it is not open for the Council to “transition” the College to coeducation as it is planning to do, or to expend the resources of the College on that plan.

13. The Council is the first defendant in the proceedings. The second to twenty-fifth defendants are members and office-bearers of the Council (“the Councillors”). The twenty-sixth defendant is the Attorney General, who has been joined in his capacity as the protector of charities.

14. Everyone agrees that it is important for this issue to be resolved promptly. The parties and the Court have cooperated to that end. Student A’s statement of claim was amended so as to seek a declaration in a form which squarely put the Council’s power to adopt coeducation in issue. By consent, the Court then ordered that the claimed entitlement to that declaration be determined as a separate and preliminary question in the proceedings, and that the hearing be expedited.

15. If the plaintiff succeeds, further questions may arise as to whether the male-only limitation applies to other property held by the Council for the purposes of the College (for example, later-acquired land). But it appears to be common ground that if the claim for the declaration concerning the Stanmore Land fails, then the plaintiff’s claim will likewise fail.

16. The parties to the separate question proceedings are Student A, the Council and the Attorney General. The Councillors did not actively participate, although they were represented at the hearing, which took place on 15 May.

Summary and analysis of evidence

17. There was no dispute between the parties as to the basic facts. Historical writings which described the development of the New South Wales educational system generally were tendered by consent. There was a body of historical documents describing the foundation of the College. The evidence also included extracts from a history of the College, Newington Across the Years by Mr Peter L Swain, which was published in 1998.

18. Some of the historical documents were put into evidence through formal affidavits filed by the solicitors acting in the proceedings. There was also an affidavit of the College’s archivist, Ms Julie Daly. The documents were admitted without objection (but subject, in some cases, to a debate as to their relevance) and there was no cross-examination of Ms Daly or the other deponents to the affidavits.

19. I was also presented with extensive extracts from dictionaries for guidance on the meaning of some of the terms in the Trust Deed, including the critical term, “youth”. Again, there was no dispute about the admissibility of this material, apart from potential arguments as to its relevance.

20. For the purposes of the proceedings, the solicitors for Student A commissioned a report from Associate Professor Amanda Laugesen of the Australian National University. She is a lexicographer and historian.

21. Dr Laugesen was asked a series of questions as to the meaning of the term “youth” as used in the Trust Deed. Her responses were presented as expert opinions as to matters of historical fact, relying upon her expertise both as a historian and as a lexicographer.

22. As part of the work she did in preparing her report, Dr Laugesen undertook research in a historical database of newspaper articles maintained by the National Library. The database is named “Trove”. The research involved identifying quotations in Trove from 1873 which used the word “youth” and making a quantitative analysis of the gender-neutral and gendered references in those quotations. Dr Laugesen also reproduced some of the quotations from Trove in her report to illustrate her reasoning.

23. In Sheppard v Smith [2021] NSWSC 1207 at [14]-[15] I decided that a report on a historical issue (dealing, in that case, with the development of a property at Birchgrove in Sydney since the nineteenth century) was not capable of being the subject matter of an expert opinion for the purposes of the s 79 of the Evidence Act 1995. I therefore concluded that the report was inadmissible as evidence (although historical documents and photographs collected in it could be admitted under the ordinary rules which govern documentary evidence).

24. After I had drawn this decision to the parties’ attention, counsel for Student A did not attempt to tender Dr Laugesen’s report into evidence. (There was another potential difficulty with the subject matter of the report. Dr Laugesen’s opinions dealt directly with the interpretation of the Trust Deed. Arguably this is a legal issue which likewise cannot be the subject matter for an expert opinion under s 79. But as the report was not pressed, the point need not be considered.)

Historical evidence

26. I had the benefit of detailed submissions from all parties on the historical evidence. As already noted, there was no dispute about the course of events. Any dispute was confined to the significance or otherwise of those events for the purposes of interpreting the Trust Deed. What follows is based largely on counsel’s submissions.

27. Education in New South Wales in the nineteenth century: In the first half of the nineteenth century, there were no government schools in New South Wales. Schooling, both primary and secondary, was left to private organisations, especially churches. At tertiary level, the University of Sydney was the first university to be established in New South Wales, in 1850.

28. The first government schools, mainly primary, were established in 1848. There followed a period where government and private schools operated alongside each other, with government subsidies being provided to most private schools.

29. That changed in 1880 with the introduction of the Public Instruction Act, which was designed to make education for all children between the ages of six and fourteen free, compulsory, and secular. As part of the reforms associated with the Act the government also established more secondary schools, including a class of “Superior Public Schools” which were to provide secondary education to matriculation standard. This class of schools developed into today’s selective high schools.

30. From 1848 onwards some elementary schools were single-sex and some were coeducational. Up until the 1870s, secondary schools offering higher education, of which there were relatively few, were only available for boys. The University of Sydney was open to men only. This changed in the 1880s. The first secondary school for girls in New South Wales was Sydney Girls’, a selective high school which opened in 1883. In 1884 the legislation governing Sydney University was changed to permit female undergraduates to study there. In Victoria the change came slightly earlier. The first secondary school for girls offering matriculation-standard education was Presbyterian Ladies College in Melbourne, which was established in 1875.

31. When the Public Instruction Act was passed there was a debate about whether the high schools to be established should be single-sex or coeducational. A sample of the sort of attitudes which existed at the time is described by Helen Proctor in “Gender and Merit: Coeducation and the Construction of a Meritocratic Educational Ladder in New South Wales, 1880–1912” (2007) 43(1) Paedagogica Historica 119:

By the 1880s mixed high schools were well entrenched in the United States and Canada, countries to which New South Wales might have looked for high school models, yet a question on the topic was dismissed out of hand by the Bill’s architect, Henry Parkes. When Arthur Onslow, the Member for Camden, asked whether there were plans for the new high schools to be coeducational, arguing that this would make the secondary schooling of girls less expensive, Parkes responded curtly, ‘We do not propose to teach courtship in these schools’. Onslow had cited the ‘American’ experience, arguing along the already conventional lines that coeducation had been proven to work well, the girls tending to ‘soften’ the boys; the boys to ‘strengthen’ the girls.

32. The first public high schools were thus single-sex institutions. It was not until 1906 that the first coeducational high school was established. But coeducation continued to exist in other areas of the education system before then. Proctor records:

[C]ity schools were either single-sex by enrolment, or were divided into girls’ and boys’ departments. Country and regional schools were mixed for economic reasons, though an understanding of exactly what this meant in practice, the exact terms and extent of mixing and segregation within classrooms, including the variations possible, requires further research. Coeducation, where it existed, was primarily a matter of economics and administration.

33. Methodist education – English origins**:** Methodism derives from the teachings of the 18th century English theologian and evangelist, the Reverend John Wesley. Methodist churches in England, having split from the established church (the Church of England), were self-governing, each taking the legal form of an unincorporated association of church members. In matters of administration, the governing body within such a church was an assembly of pastors and elders known as the “Conference”. Church property would be held by trustees under a trust for religious (and thus charitable) purposes, the terms of which would typically provide for the trustees to be appointed by the Conference.

34. As with other denominations, establishment of Church schools was seen as a central part of the Methodist mission. Typically, a school established under Church auspices would be established as a separate trust with its own body of trustees, but likewise subject to the ultimate control of the Conference.

35. Part of the responsibility of such church schools was to allow for the education of the children of the church’s ministers. Working ministers received allowances to help cover the costs of raising and educating their children, and measures were put in place to ensure that church schools would provide places for the children of such ministers at a cost which did not exceed the education allowances they received.

36. Methodist education – Australasian C****hurch: When Methodism came to the Australasian colonies, Methodist churches here adopted the same legal form of self-governance, using charitable trust structures, as existed in England. (In fact, all churches in English colonies, including colonial offshoots of the Church of England itself, took this legal form: see Bishop of Natal v Gladstone (1866) LR 3 Eq 1 at 35-36).

37. Prior to 1873, the governing body of the Wesleyan Methodist Church in Australasia was a “General Conference” covering all the Australian colonies and New Zealand. For the purpose of local administration, the colonies were divided into one or more Districts.

38. In February 1873, four regional Conferences were constituted, which were to be “comprised in and governed by the General Conference”. These conferences had jurisdiction over New South Wales and Queensland; Victoria and Tasmania; South Australia (which included Western Australia); and New Zealand. The new regional Conferences provided an intermediate layer of administration between the General Conference and local Districts.

39. Like their English equivalents, Methodist churches in the Australasian colonies saw it as part of their mission to establish and maintain church schools, and were concerned to ensure that the schools would be available for education of the children of church ministers. A system of allowances was adopted in accordance with the English model. Initially the education allowance which was paid for boys was higher than that for girls, but in 1871 that was changed. Thereafter the same allowance was paid for girls as it was for boys.

The members of the Wesleyan Church in New South Wales having long felt the need for a suitable establishment, to which to send their sons for superior education, and in which they could receive a training in accordance with their parents’ views of religious truth and [unintelligible] discipline, it is proposed to commence an institution, which will secure these objects, on the basis similar to Horton College, in Tasmania ….

The Wesleyans of New South Wales had long felt this want. Their people were not generally wealthy people, and some provision was made for the poor. But those of their members who were able to afford a superior education for their sons, had no institution for training them on purely Wesleyan principles. There must always be a bias given to the minds of their sons by those under whose charge they were put.

43. Consistently with Rev Manton’s reference to “sons”, only boys and young men were enrolled at the School when it opened, and that remained the case until it closed in 1881. Horton College in Tasmania, to which Rev Manton referred, was also a boys-only school at the time.

44. It seems that the School was not, when it was established, given a separate institutional structure within the Church. But from 1866 there was a “Newington Council” which oversaw the School’s operations. I will refer to this body as the “School Council”. It is unclear whether its activities were governed by a formal set of rules.

45. Foundation of the College: In time it became apparent that the Silverwater site was not suitable as a permanent location for the School. Newington House was not for sale and there was no security in the ongoing annual leasing arrangement. The School Council began looking to replace the institution at Silverwater with a new Collegiate School (and Theological Institute) at another site.

46. By the late 1860s the Stanmore Land had become the preferred site for the planned new Collegiate School. This came about in the following way.

47. Originally the Stanmore Land was a 20 acre estate known as the Stanmore Estate, taking its name from Stanmore, the house which was built on it (which later also gave its name to the suburb). The Estate belonged to a wealthy Wesleyan Methodist, Mr John Jones. During his lifetimes Mr Jones sold off four acres of the Estate to a Mr James Watson (the “Watson Subdivision”) but retained the remaining 16 acres for himself (the “Estate Residue”).

48. Mr Jones died in 1848. By his will he made a large bequest of property, which included the Stanmore Estate Residue, for the benefit of the Wesleyan Methodist Church. The gift was subject to a life interest in favour of his widow, who survived him. Upon her death, the property bequeathed to the Church was to be sold, and the proceeds handed over to the Church.

49. In the late 1860s Mr Jones’ widow (who had remarried) was still alive, but the idea took shape that after her death the bequest from Mr Jones could be used to establish the new Collegiate School and Theological Institute at Stanmore. In 1869 the Church bought back the Watson Subdivision so that it could be reunited with the Estate Residue when the time came.

50. The Watson Subdivision was purchased on behalf of the Church by three Sydney members or office bearers of the Church: Rev Henry Gaud, Rev Joseph Horner Fletcher, and Mr George William Barker (the “Church Trustees”). This would have been a typical way of purchasing and holding property for the benefit of the Church given that it was an unincorporated association operating under a charitable trust structure. The same practice was followed with the later conveyancing involving the Estate Residue: see [64] below.

I. That the whole of the Stanmore property devised to the Wesleyan Church be appropriated to Collegiate purposes.

II. That the one half be devoted to the purpose of a Wesleyan Theological Institution and the other half to a Collegiate School; provided that in the latter, as soon as practicable, the sons of Wesleyan Ministers labouring in New South Wales, shall receive education from the age of eight to fourteen years, or from nine to fifteen years, for the amount of the allowance to boys from the Children’s and Educational Funds, in accordance with the plan which prevails in England.

…

V. That the principles contained in the foregoing resolutions be embodied in the deed of settlement.

53. It seems from later evidence that the Council’s recommendation was considered by the Sydney District, which in turn made a recommendation to the Conference. No direct recommendation was made by the School Council to the Conference.

54. From the similarities between the Council’s recommendation and the eventual resolution passed by the Conference it seems that the recommendation made by the Sydney District to the Conference was in a similar form to the recommendation the District had received from the School Council. But no formal record of the Sydney District’s recommendation to the Conference appears to have been in evidence (if one still exists). The precise terms of that recommendation are therefore unknown.

55. The next session of the Conference took place in February 1873 (this was same session which established the regional Conferences: see [38] above). The Conference passed a resolution broadly along the lines proposed originally proposed by the School Council, but in a somewhat altered form.

56. Again, no formal record of the proceedings of the Conference appears to be in evidence. There is some secondary evidence of the proceedings of the Conference. A newspaper report of the Conference session contains a reference to the Stanmore appropriation. That report only purports to record the first two paragraphs of the resolution, and it is unclear whether it is a paraphrase of the recommendation made by the Sydney District, or the resolution of the Conference itself.

57. More usefully for present purposes, there is an undated, handwritten document, purporting to be a copy of the resolutions contained in the Conference journal for 1873 concerning the Stanmore Land. The document records:

Wesleyan Theological Institution and Collegiate School for New South Wales. The conference adopts the recommendations of the Ministers of New South Wales on this subject and resolves –

1. That the whole of the Stanmore Estate be appropriated to Collegiate purposes.

2. That all money received under the provisions of the will of the late Mr John Jones be appropriated to the erection of Collegiate buildings, one half of the proceeds of the legacy being devoted to the purpose of a Wesleyan Theological Institution and the other half to a Collegiate School provided that in the latter a certain number of the children of Wesleyan Ministers laboring in New South Wales, to be determined by a committee … shall receive education from the age of eight to fourteen years, or from nine to fifteen for the amount of the allowances from the [Children’s and Education Funds] in accordance with the plan which prevails in England.

…

5. That the principles contained in the forgoing resolutions be embodied in the deed of settlements.

58. The School Council minute book also contains what purports to be a record of the terms of the resolution passed at the Conference, made in March 1873. It is identical to the handwritten copy of the Conference journal which I have set out above.

59. The recitals to the Trust Deed (executed nine months later) also purport to state the terms of the Conference resolution. The second part of the resolution was marginally different from the purported copies of the resolution in the handwritten document and the Council minute book (underlining added):

That all the money received under the provisions of the Will of the late Mr John Jones be appropriated to the erection of Collegiate Buildings one half of the proceeds of the Legacy being devoted to the purpose of a Wesleyan Theological Institution and the other half to a Collegiate School provided that in the latter a certain number of the children of Wesleyan Ministers labouring in New South Wales to be determined by a committee … should receive education from the age of Eight to Fourteen years or from Nine to Fifteen years for the amount of the allowances from the children’s fund and the fund for the education of Ministers’ children in accordance with the plan which prevails in the Kingswood and Woodhouse Grove Schools in England

60. It is clear that the gendered language in the initial recommendation by the School Council (“boys” and “allowance to sons”) was changed in the final resolution of the General Conference so as to be gender neutral (“children” and “allowances”). It is however uncertain whether the change was made at Sydney District level or Conference level. The reference to the Conference adopting the recommendation of the Sydney District tends to suggest the former but it is impossible to be certain.

61. The additional reference to Kingswood and Woodhouse Grove schools in the version of the resolution which appears in the recitals to the Trust Deed is also mysterious in terms of provenance. On the one hand, those words are missing from both of the purported copies of the resolution. On the other, one would normally expect that a conveyancing lawyer drafting a deed of trust would have referred to the official record for the purpose of recording it in the recitals. It is also difficult to imagine why those words would have been added if they did not come from the official record. But again, it is not possible to be sure one way or the other.

62. The appropriation of the Stanmore Land for the purposes of the new College, in accordance with the Conference resolution, when it took place, was a somewhat complex process. It involved the execution of three separate deeds.

63. The first step was that a public auction was held, at which the property left by Mr Jones to the Church, including the Stanmore Estate Residue, was sold by the trustees of Mr Jones’s estate. At the auction, three Church Trustees, Rev Henry Gaud, Rev Benjamin Chapman, and Rev George Hurst, bid for, and purchased, the Estate Residue for £3,000. Presumably, no money changed hands, since the Church was to receive the proceeds of sale as beneficiary anyway. Mr Jones’s trustees paid over to the Church Trustees the proceeds of the other property which had been sold, which amounted to £2,046.

64. Following the auction, a deed of conveyance was executed for the conveyance of the Stanmore Estate Residue by Mr Jones’s trustees. This happened on 22 October 1873. Rather than the Estate Residue being conveyed to the Church Trustees as purchasers, it was, at their instruction, instead conveyed to a larger group of fifteen Church office-bearers and members who were to be the trustees for the new Institute and College (“the Newington Trustees”).

65. On the following day, 23 October, the deed of indenture which I have referred to as the Trust Deed was executed to give effect to the trust arrangement. The Deed took the form of an indenture between the Newington Trustees and the Church Trustees. The Church Trustees covenanted to make over the proceeds of sale of the rest of the Jones Estate property to the Newington Trustees. The Newington Trustees covenanted to hold the Jones Estate Subdivision, together with the further monies made over by the Church Trustees, on trust in accordance with the terms of the Deed for the establishment and operation of the new Institute and College.

… was designated to afford a higher class of education for the sons of our people and furnish an adequate training for the candidates for our University.

69. On 18 January 1880, the new College was formally opened. From the outset, it was a boys-only school. I was referred to reports of the speeches at the opening ceremony, which referred to candidates being “young men” and “boys” and that the College would be a “home of boys”.

70. Coeducation and Methodist schools for girls: Provision of education for girls was recognised as an important responsibility for the Australasian Church at least from the 1850s onwards, and this raised the question of coeducation. Again, Victoria seems to have taken the lead. By the late 1850s the majority of Church elementary schools in Victoria were coeducational.

71. In 1866 there was a Royal Commission into public education in Victoria. Reverend James Waugh, who was the chairman of the Victorian District, gave the following evidence:

Before replying to your communication I thought it expedient to consult the leading Wesleyan ministers in the colony, and also many experienced teachers, on the subject. The opinion which I now express is substantially that entertained by those with whom I have consulted, without any exception.

1st. I am of opinion that the tuition of scholars of both sexes at the same time does not tend in any degree to induce or promote immorality, but, on the contrary, the presence of female scholars has the tendency of humanizing, refining, and improving the manners of the male scholars, besides greatly promoting the spirit of emulation. In lessons of study, the female scholars, as a matter of course, should occupy separate desks and benches.

2nd. I am of opinion that while during the hours of tuition there cannot be any objection to a mixed school, yet there may be grave objections to the practice of allowing the whole of the scholars to occupy the hours of recess without any supervision. I think wherever it is practicable there should be separate playgrounds.

…

72. During the Commission hearings, Reverend Waugh expanded upon his letter with the following evidence:

2114. What is your opinion of the mixing of the boys and girls in one and the same school?—A few months ago a circular was issued by the Board of Education to the heads of denominations asking us to make inquiry, and to give an opinion regarding that subject; and I wrote to a great many masters and ministers who had to do with the schools, and I found that, with scarcely more than one or two exceptions, their opinion was in favour of the sexes being taught in the same school; they thought that the interests of morality did not, on the whole, suffer by the combination of the sexes in school.

…

2116. Would you be in favour of having the children separated – the boys from the girls – on leaving school, when they enter the playground?—Yes, where it is possible to have it done. Sometimes it is not possible; but I think that if they are allowed to associate in the same playground it should be under very careful superintendence; and I think that when thus guarded and carefully watched, the experience of our masters will show that no harm arises, and that the result of teaching boys and girls in the same school is on the whole advantageous.

2117. Do you think it is advisable that they should be taught in the same room as well as in the same school: suppose there is a mistress, would you have the master and mistress teach the boys and girls in the same room?—Yes. I think the letters that I received were based upon the supposition that they would be taught in the same room, and sometimes even in the same classes.

73. The lack of secondary education for girls was recognised as a problem in the Church. A report of proceedings at the annual session of the Conference in January 1872 states:

Mr J. Wilton moved, and Mr Cotton of Adelaide, seconded, this resolution, which was unanimously adopted by the Conference:-“That, in the opinion of this committee, the time has arrived for the superior education of the daughters of our people, and that the careful consideration of the conference be asked to this subject, and that a committee of ministers and laymen be appointed to report on the matter.

74. The issue was considered at a Sydney District meeting in November 1872. No immediate action was taken:

The question of higher female education, remitted by the last Conference for consideration, having been brought up, Rev. S. Wilkinson addressed the committee on the importance of the question, but it resolved that it could not make any recommendation on the subject to the Conference.

75. The issue however remained on the agenda after 1873. It is unnecessary to trace the course of events in detail. Eventually it was decided to set up a Wesleyan Methodist secondary school for girls in Sydney. The school was established in Croydon in 1886 and later took on the name “Methodist Ladies’ College”. It still exists and is now known as “MLC School”.

Dictionary evidence

76. The parties accepted that for present purposes the most authoritative dictionary is the first edition of the Oxford English Dictionary (“OED”), which was finalised in 1928. Its definition of the word “youth” identified six main senses in which the term was used (illustrative quotations omitted):

1. a. The fact or state of being young; youngness. (Often blending with sense 2.)

1. b. Newness, novelty, recentness.

2. a. The time when one is young; the early part or period of life; more specifically, the period from puberty till the attainment of full growth, between childhood and adult age.

2. b. Early stage or period of existence.

3. A quality or condition characteristic of the young; e.g. youthful freshness or vigour; youthful wantonness, folly, or rashness; youthful appearance or aspect.

4. Personified, or vaguely denoting any young person or persons (without article).

5. Young people (or creatures) collectively; the young. (With or without the; now always construed as plural.)

6. A young person; esp. a young man between boyhood and mature age; sometimes, esp. in earlier use, more widely.

77. Numerous other dictionary definitions of the word were in evidence. They are summarised in the following table:

| | Dictionary | Definition | | 1848 | Barclays Complete and Universal English Dictionary | ... that part of life which is between childhood and manhood; adolescence; a young man; Young men used collectively | | 1854 | Webster's Dictionary of the English Language | 1. The part of life that succeeds to childhood. In a general sense, youth denotes the whole early part of life, from infancy to manhood; but it is not unusual to divide the stages of life into infancy, childhood, youth and manhood. 2. A young man. 3. A young person, male or female. 4. Young persons collectively. | | 1872 | Chambers's Etymological Dictionary of the English Language | n., state of being young; early life; a young person; young persons taken together. | | 1882 | The Imperial Dictionary of the English Language | 1. The state or quality of being young; youthfulness; youngness. 2. The part of life that succeeds to childhood. In a general sense, youth denotes the whole early part of life, from infancy to manhood; but it is not unusual to divide the stages of life into infancy, childhood, youth and manhood. 3. A young person: especially if not invariably, a young man. In this sense it has a plural ... [youths] 4. Young persons collectively. | | 1884 | A Dictionary of the English Language with Supplement | n. 1. The part of life succeeding to childhood and adolescence, generally reckoned from fourteen to twenty-eight years. 2. A young man; one in youth. 3. Young persons collectively. | | 1885 | A Dictionary of the English Language | n. the part of life before manhood, usually reckoned from 14 years of age; the whole early part of life; a young person; especially, a young man; collectively, young persons | | 1891 | A Dictionary of Law | This word may include children and youth of both sexes. | | 190? | Dymock's large type pronouncing dictionary of the English language | n. the early part of life; young person; young persons collectively | | 1905 | Webster's International Dictionary | n., Youths or collectively Youth 1. The quality or state of being young; youthfulness; juvenility. 2. The part of life that succeeds to childhood; the period of existence preceding maturity or age; the whole early part of life, from childhood, or, sometimes, from infancy, to manhood. 3. A young person; especially, a young man. 4. Young persons, collectively. | | 1919 | A Modern Dictionary of the English Language with Australasian Supplement | n. the state or time of being young; a young person; the period from childhood to manhood | | 1919 | Concise Oxford Dictionary of Current English | Being young, adolescence, (the vigour or enthusiasm or weakness or inexperience or other characteristic of) the period between childhood & full manhood or womanhood | | 2017 | Australian Concise Oxford Dictionary | 1. the state of being young; the period between childhood and adult age. 2. the vigour or enthusiasm, inexperience, or other characteristic of this period. 3. an early stage of development etc. 4. a young person (esp. male). 5. young people collectively (the youth of the country). |

Permissibility of coeducation

78. As already noted, the hearing before me concerned a separate and preliminary question arising in the proceedings. The question for my determination is whether Student A is entitled to a declaration that:

the use of:

(a) the [Stanmore Land]; and

(b) any property, whether real or personal, which vested in Newington College pursuant to s 6 of the NCC Act;

for co-education would be a breach of the trust constituted by s 13 of the NCC Act.

79. It will be noted that the declaration is framed in terms of permissibility under the NCC Act. This is because, since the Act was passed, the use of the Stanmore Land has been governed by that legislation rather than by the Trust Deed as such.

80. As will be seen, however, the relevant provision of the Act picks up the language of the Deed. All the parties treated the question for determination by the Court as effectively being a question of interpretation of the Deed.

81. Comprehensive and lucid submissions, both written and oral, were presented on the interpretation question by the parties’ counsel. Although there were differences of emphasis and expression between counsel for the College Council and counsel for the Attorney General, their submissions ran along the same lines. For simplicity and convenience, and without intending to deprive them of proper credit for their individual contributions, I will refer to their submissions interchangeably as submissions by “counsel for the defendants”.

82. Four main areas of argument were developed in the submissions, which I will address below. Before doing so, I will set out the relevant provisions of the Trust Deed and the NCC Act.

Trust Deed

83. The original Trust Deed was not in evidence and appears to have been lost. A copy, certified to have been checked against the original and found correct by Rev Fletcher, the then President of the College, in 1885, is in evidence. The parties accept that it is an accurate record of the original indenture.

84. I set out below the relevant terms of the Deed. In doing so I have numbered both the recitals and the operative clauses. I have also standardised initial capitalisation and introduced punctuation in accordance with modern practice.

85. The Deed began by reciting the terms of Mr Jones’s will; the February 1873 resolution of the Conference appropriating the Stanmore Land for Collegiate purposes; and the further resolution of the Conference establishing and conferring jurisdiction on the New South Wales and Queensland Conference. Further recitals were as follows:

[5] The said Wesleyan Methodist Church in the colony of New South Wales have established a Collegiate School at Newington near Sydney aforesaid of which the governing body is a Council consisting of certain ministers and laymen annually elected by the Conference of the Australasian Wesleyan Methodist Church and Known as the Council of Newington College.

…

[7] It is intended that the said Collegiate School at Newington aforesaid shall be discontinued upon the completion of the said Collegiate School at Stanmore aforesaid and that thereupon the said New South Wales and Queensland Conference … shall appoint a new Council … under whose control and management the said Collegiate school [at Stanmore] shall be placed.

86. The Deed then contained the following operative clauses which relevantly provided (emphasis added):

[1] T****he [Newington Trustees] shall stand seized of the [Jones Estate Subdivision of the Stanmore Estate] upon trust to permit the erection and maintenance thereon of a Wesleyan Theological Institution and a Wesleyan Col****legiate School in manner hereinafter provided.

[2] The [Church Trustees] will appropriate all the moneys which have been received by them under the trusts of the Will of the late John Jones as aforesaid remaining in their hands after payment of the purchase money for the [Jones Block] in or towards erecting upon the said land at Stanmore aforesaid a Wesleyan Theological Institution and Collegiate School.

[3] The object of such School shall be to provide an efficient course of education for youth …

[3.1] No other religious doctrines under any circumstances shall be taught or expounded in the said Institution or School than those which are contained [in certain specified writings of Reverend Wesley], and in the catechism of the Wesleyan Methodists compiled and published by order of the [English Wesleyan] Conference …

[4] The Theological Institution shall be under the management of a Committee to be annually appointed by the Conference of the said Church having such jurisdiction as aforesaid and that the said Collegiate School shall be under the management and direction of the said Council of Wesleyan College or of such other Council as may from time to time be appointed for such purpose by the said last mentioned Conference.

…

[7] The said Council may subject to such rules and orders as aforesaid determine and regulate from time to time the course of study to be pursued in the said school and the terms conditions and regulations upon and subject to which the pupils thereof respectively shall be admitted and governed.

[7.1] Certain of the children of Wesleyan ministers laboring in N****ew S****outh Wales shall receive education at the same W****esleyan Col****lege School from the age of eight to fourteen years, or from the age of nine to fifteen years for and in consideration of the amount of the allowances for that purpose from the [Children’s Fund and Education Fund] in accordance with the plan adopted by the [English Conference] as the said allowances respectively shall from time to time be fixed by the Conference of the Australasian Wesleyan Methodist Church having jurisdiction in New South Wales as aforesaid and for whose board and education as aforesaid no other fee or premium shall be demanded and the children so to be educated shall from time to time be selected or approved by the aforesaid Conference during their annual session.

…

87. Further provisos went on to lay down various procedural rules to be followed by the members of the Council and the Trustees in the discharge of their duties. It is unnecessary to set them out in full. Counsel for the Defendants, however, pointed out that, when referring to individual members and office bearers of the Council, and to the Trustees, male pronouns were used.

NCC Act

88. The NCC Act provided, by s 1, for the incorporation of the existing Newington Council as a “body politic and corporate” under the name of the Council. The section conferred on the Council the usual features of a body corporate, including perpetual succession and the right to hold property. Section 6 vested the Stanmore Land, and all other property, upon trust for, or for the purposes of carrying on the College, in the Council. The Newington Trustees thus dropped out of the picture.

89. The provisions of the Act which deal with the operation of the College (in their current form) are ss 12, 13 and 14:

12 Council may make regulations

The council may, subject to the provisions of this Act, formulate and adopt regulations with respect to the conduct of the school and the course of education and religious instruction to be followed therein: Provided that such directions and regulations shall not contravene the teachings and tenets of The Uniting Church in Australia, and any such regulations shall be subject to review and alteration at any meeting of the Synod of The Uniting Church in Australia in New South Wales.

…

13 How property to be held by the council

The said council shall hold all the property at any time vested in it by virtue of this Act upon trust to carry or cause to be carried into effect the regulations hereinbefore referred to and the general objects for which the said collegiate school was founded as set forth in [the Trust Deed] …

…

14 Powers of the council

Subject to any regulations to be so formulated as aforesaid, the council shall have the general management and superintendence of the affairs, concerns, and property of the said collegiate school…

90. It is common ground that no regulations have been adopted by the Council which would prevent the College from becoming coeducational. The Council accordingly has power to make that change unless it would conflict with the “general objects for which the college was founded” referred to in s 13. All parties proceeded on the basis that these “general objects” were to be equated with the object stated in cl 3 of the Trust Deed, namely, “the provision of an efficient course of education for youth”.

Principles of interpretation

91. Counsel for Student A propounded a series of general propositions which, they argued, governed the interpretation of the Trust Deed for the purposes of the present case. Counsel for the defendants were apparently content to deal with the case on that basis. The propositions may be summarised as follows:

92. The principles which apply to the interpretation of a trust instrument such as the Trust Deed are generally the same as those which apply to the interpretation of contracts: Byrnes v Kendle (2011) 243 CLR 253 at [102]-[113] (Heydon & Crennan JJ).

93. In accordance with those principles, the Court is concerned with the objective meaning of the language used by the parties in the Deed. Their subjective intentions, as manifested in the prior negotiations or in subsequent conduct, are generally irrelevant: Codelfa Construction Pty Ltd v State Rail Authority *(*NSW) (1982) 149 CLR 337 at 352.

94. The starting point is the “plain and ordinary” meaning of the language used in the Deed, within the context of the rest of the Deed. Identifying that meaning is a question of ordinary common usage, which may be assisted by recourse to dictionary definitions. But if the Court can see that the parties to the Deed used the term in some special sense of their own, it is that meaning which will govern.

95. If the language is ambiguous or susceptible of more than one meaning, the Court may go beyond “internal linguistic considerations” derived solely from the Deed. In particular, the Court may have regard to relevant “surrounding circumstances” leading up to the Deed’s execution: Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 240 CLR 45 at [9]-[10].

96. The meaning of the language in the Deed is to be determined as at the date on which the Deed was executed, that is, October 1873: Commonwealth v Hazeldell Ltd (1918) 25 CLR 552 at 561. The question therefore is: what meaning would be placed on the language of the Deed by an objective contemporaneous observer having knowledge of all relevant surrounding circumstances in which the Deed was executed.

Ordinary meaning and ambiguity

92. Submissions: Counsel for Student A did not go so far as to submit that the “plain and ordinary” meaning of “youth” in 1873, considered on its own, was necessarily confined to young male persons. Instead, counsel presented a two-step argument concerning the use of the word in the Deed.

93. Step one in counsel’s argument was that the word “youth”, as it appeared in the Deed, was ambiguous. It might have been gender-neutral or it might have had an exclusively male connotation. The second step in the argument was that, given that ambiguity, the Court needed to consider the “surrounding circumstances” to resolve it. Reference to those surrounding circumstances would, so counsel argued, demonstrate that the word was used in the Deed with an exclusively male meaning.

94. In support of the first step in the argument, counsel initially referred to dictionary entries dealing with the word “youth” when used to denote an individual young person. This meaning corresponds with OED sense six ([76] above). As the OED entry states, when used in that sense the term may, and often does, mean a young man.

95. But in cl 3 of the Trust Deed the word “youth” is used collectively, corresponding with OED sense five. The real question is whether the use of the term in that sense means, or at least might mean, young maleness exclusively. In the end, as I understood it, counsel for Student A accepted this and “youth” in OED sense six was put aside.

96. The OED entry for “youth” in sense five is stated in gender neutral terms. None of the quotations given in the entry as examples of use in that sense are exclusively male. The same is so for all the other dictionary entries for the word, as used in that sense, except for Barclays’ definition. That entry defines that sense of the word as “young men used collectively” ([77] above).

97. Counsel for Student A submitted that this was sufficient for their purpose. Barclays definition demonstrated that the term was at least capable of an exclusively male meaning.

98. Counsel sought to reinforce this argument by some specific Trove quotations initially obtained by Dr Laugesen. In particular, counsel referred me to a newspaper report of proceedings in the Legislative Assembly in April 1873. The proceedings included a debate which touched on the remuneration of Members of Parliament. Mr Raphael MLA was reported to have said:

It was a libel upon the youth of New South Wales to say that we could not get men of ability to sit in Parliament without being paid.

99. At the time Mr Raphael spoke, only men could be elected to Parliament. His reference to “youth” could only be read as a reference to young men (as the reference to “men” of ability confirmed).

100. Counsel for the defendants did not accept that that the word “youth”, used in the collective sense in which it was used in the Deed, was in any way ambiguous. In counsel’s submission the word was, and had always been, a gender-neutral one. As already noted, all the other dictionaries in evidence supported a gender-neutral meaning. Illustrative quotations given in those dictionaries included uses of the term which clearly applied to female and male alike. The OED lists, among other examples, the following from Century Magazine in 1883 (emphasis added):

There was a native innocence in the New York youth of both sexes that was pleasing to our pride.

101. Counsel submitted that in the face of this evidence, the single entry in Barclays dictionary was insufficient to establish ambiguity. Counsel described the entry as simply wrong.

102. As already mentioned, counsel objected to the Trove material, including the quotation from Mr Raphael, being admitted into evidence at all. In counsel’s submission, such quotations were irrelevant. That the collective word “youth” had been used in a male-gendered way by one Member of Parliament in one debate proved nothing. The evidence did not prove that such a usage was commonly employed by anyone else, let alone by those who had actually framed the Trust Deed.

103. Counsel for the defendants developed their argument further by reference to other provisions of the Deed. Counsel referred in particular to what they submitted must have been a deliberate choice to use gender-neutral terms such as “children” and “pupils” elsewhere in the Trust Deed, rather than “sons” and “boys” (or even “youths”). Counsel contrasted this gender-neutral terminology with the male pronouns used whether referring to the Trustees and members of the Council.

104. Counsel made a further point about the nature of the Deed itself. They submitted that its purpose had been to create a new institution which was to last into the indefinite future, for decades or even (hopefully) centuries. The parties would have known that it might, and likely would, be necessary to accommodate social, educational, and financial changes in the future, the nature of which could not be predicted. These considerations militated against any interpretation of the Trust Deed which would limit the scope of the powers conferred on the Council to manage the College’s operations, including its enrolment policy.

105. As counsel noted, a principle of this type has been applied in constitutional law: see Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309 at 367-368 (O’Connor J). Counsel pointed out that in Re Ferguson (1995) 58 FCR 106, Branson J applied similar reasoning to the interpretation of a company’s memorandum and articles (see at page 111).

106. Counsel submitted that a similar approach should be followed in the present case. Counsel submitted that it would have been readily foreseeable to the parties to the Deed that circumstances might arise where it would become desirable or even necessary to admit girls or young women as pupils. This provided a further reason to treat the gender-neutral language used as meaning what it said.

107. Finally, counsel for the defendants submitted that, even if there were a male connotation to the word “youth” as used in cl 3 of the Deed, that would by no means necessarily answer the question in the present case in favour of Student A. As counsel pointed out, apparently gendered terms can be used in a gender-neutral sense. A clear example is the term “man”, which, at least until the last few decades, was frequently used as a gender-neutral term referring to all persons, male or female.

Recourse to surrounding circumstances

133. On the conclusions which I have just reached, there is no occasion to consider the “surrounding circumstances” for the purpose of clarifying the Deed’s meaning. But in case I am wrong in my view, I will address the issue.

134. Submissions: Counsel for Student A relied upon the following “surrounding circumstances” as indicating a male-only meaning for “youth” in cl 3 of the Trust Deed.

135. The existing Newington School was referred to in the Deed. Counsel characterised the new College as a continuation of it. The School was, and had always been, a male-only school.

136. 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.

137. 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. In counsel’s submission, female education was on a separate and different track from male education.

138. Similarly, Government policy for education at secondary level had not embraced coeducation. Only single-sex-schools existed at secondary level.

139. Counsel for the defendants took issue with the characterisation of the College as a continuation of Newington School. They pointed out that the intention recited in the Deed (and it was only a then-current intention) was that the School would be “discontinued” once the College had been opened. The College, in counsel’s submission, was clearly seen as a new and independent institution.

140. Counsel added that in any event there was no significance to the mere fact that Newington School had been a boys-only school. All that Rev Manton’s speeches and the advertisements proved was that that had been the practice which had been adopted at the time. They said nothing about whether the School would have had power to enrol girls if its Council had wanted to do so.

141. For similar reasons, counsel submitted, the references in the Trust Deed to the Methodist schools in England went nowhere. Even if they had only been enrolling boys at the time, this said nothing about whether they would have had power to enrol girls.

142. Counsel noted, and it appears to be accepted, that at least one of the English schools referred to in the Deed is now coeducational. Of course, as counsel acknowledged, the explanation might be that this had been permissible under the school’s constitution, or the constitution might have been changed. But this only underlined the point that past practice at other schools said nothing about the way in which the powers in the College’s Trust Deed should be understood.

There may perhaps be one situation in which evidence of the actual intention of the parties should be allowed to prevail over their presumed intention. If it transpires that the parties have refused to include in the contract a provision which would give effect to the presumed intention of persons in their position it may be proper to receive evidence of that refusal. After all, the court is interpreting the contract which the parties have made and in that exercise the court takes into account what reasonable men in that situation would have intended to convey by the words chosen. But is it right to carry that exercise to the point of placing on the words of the contract a meaning which the parties have united in rejecting? It is possible that evidence of mutual intention, if amounting to concurrence, is receivable so as to negative an inference sought to be drawn from surrounding circumstances.

141. Counsel acknowledged that, as at 1873, the Church authorities had shelved, at least for the moment, any decisions about secondary education for girls. But again, counsel submitted that this was a point in their favour. It was a concrete reason why it would have been undesirable to limit the enrolment policy which might be pursued by the College in the future.

142. Nor, in counsel’s submission, did the argument for Student A derive any support from the evidence about the development of the New South Wales education system generally. By 1873, coeducation was well established as an option at elementary level. The introduction of single-sex government schools did not in fact occur until 1880, after the execution of the Deed. And the government practice was not set in stone. It was departed from where practicality required, particular in rural and regional areas where single-sex schools would not have been financially viable.

143. Counsel submitted that it was particularly fraught to try to draw an inference from general government policy, assuming such a policy could be discerned, when considering what would have been contemplated by members of a particular religious denomination. In the nineteenth century, political and social radicalism were not unknown in what were then called (in England) Dissenting and Nonconformist churches. For all the Court knew, Methodist views on this issue might have been outside the political mainstream.

144. Counsel for the defendants made a wider point about trying to interpret the Deed by reference to “surrounding circumstances”. It was hardly likely that those circumstances could be accurately reconstructed by trawling through records from 150 years ago which were almost certainly incomplete. Nor could interested parties reasonably be expected to do so when they did not have the records in their possession. Counsel drew an analogy with the restrictions on the use of “surrounding circumstances” in the interpretation of an instrument creating a registered easement under the Torrens land system: Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528 at [37]-[45].

145. Counsel also submitted that such an exercise would never have been in the contemplation of the parties in 1873. The conveyancer who drafted the Deed would have done so on the understanding that any external facts and circumstances which might be needed to explain the “surrounding circumstances” would need to be stated in the recitals, so that they would be available for that purpose in the future.

146. In this regard, counsel submitted, the recitals were significant for what they did not say. Although the existing Newington School was referred to, there was no mention of it (or either of the English schools) being a boys-only school. Nor did the recited facts include the Council’s 1872 recommendation with its gendered language. Instead, reference was confined to the gender-neutral resolution of the General Conference in February 1873.

Recourse to subsequent conduct

153. Submissions: Generally speaking, it is not permissible to interpret a conduct by reference to the later conduct of the parties. Counsel for Student A, however, relied upon an exception to this principle in the case of “ancient documents”.

154. One frequently cited statement of the rule is that of Sir Edward Sugden (later Lord St Leonards LC), then Lord Chancellor of Ireland, in Attorney-General v. Drummond (1842) 1 Dr & War 353. His Lordship said:

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.

155. As counsel pointed out, when, in Wickman Machine Tool Sales Ltd v L Schuler AG [1974] AC 235, the House of Lords affirmed the general rule that a contract cannot be construed by reference to the parties’ subsequent conduct, the ancient documents rule was noted as an exception ((although it was not relevant on the facts of the case): see Lord Wilberforce at page 261 and Lord Simon of Glaisdale at page 270). Their Lordships referred to the exposition of the rule in Norton on Deeds (Robert F. Norton, A Treatise on Deeds (1st ed, 1906, Sweet and Maxwell Limited) at 138-149; Robert F. Norton, A Treatise on Deeds (2nd ed, 1928, Sweet and Maxwell Limited) at 150-163). The rule continues to be recognised in modern texts, for example Lewison’s works on the interpretation of contracts: Sir Kim Lewison, The Interpretation of Contracts (8th ed, 2024, Thomson Reuters) at [3.18]; Sir Kim Lewison, The Interpretation of Contracts in Australia (2nd ed, 2024, Law Book Co of Australia) at [3.198]-[3.202].

156. Counsel for Student A relied on two matters. The first was the subsequent development and opening of the College as an all-boys school ([45] above). The second was the continued separate development of girls’ education within the Church, culminating in the establishment of MLC as a separate all-girls school in 1886 ([75] above).

157. In response, counsel for the defendants seized on the reference by Lord Wilberforce to the exception applying “when the meaning of a word may have become obscure”. Counsel submitted that this was not the present case. In their submission, the meaning of “youth” in the relevant sense had not changed since 1873, and there was no relevant ambiguity to enliven the rule. Furthermore, recourse to subsequent events did not alter the conclusion derived from the terms of the Trust Deed (supplemented, if necessary, by reference to the “surrounding circumstances” which existed in 1873).

158. Conclusions: Counsel for the College did not, in their argument, dispute the continued existence of the ancient documents rule. The rule appears however somewhat out of step with the modern law on the interpretation of contracts.

159. The rule operates as an exception to the more general “rule” that evidence of the parties’ subsequent conduct cannot be received as an aid to interpretation. But, as both Lord Wilberforce (at 261) and Lord Simon (at 269) emphasized in Wickman, that general “rule” is not really a freestanding rule of contractual interpretation at all. It is simply an illustration of a yet more fundamental principle that, in determining the interpretation of a contract, the court is concerned with objective factors and not the parties’ subjective intentions.

160. It is difficult to see why the fact that the instrument in question is an “ancient” one should immunise it from this fundamental principle. As Lord Simon observed in , Sir Edward Sugden’s dictum in “really contains a logical flaw: if you tell me what you have done under a deed, I can at best tell you only what that deed means” (emphasis added).

Coeducation as a means of efficient education of male youth

165. Counsel for the defendants presented a final fall-back argument to cover the possibility that I might find that the word “youth” in the Trust Deed had an exclusively male connotation. Counsel submitted that it would still be open to the Council to conclude that the education of boys and young men would be improved or facilitated by coeducation alongside girls and young women. This argument did not depend upon the Court accepting that this would in fact be so; but it was something that the College Council might legitimately consider to be the case.

166. Counsel for Student A did not accept that this argument was legitimate. Counsel submitted that if the admission of girls and young women to the College was not itself permitted by the Trust Deed as an object in itself, it could not be achieved indirectly, under cover of a supposed advantage to the education of boys and young men. Counsel pointed that, to the extent that female participation was desirable (for instance, in a case where it was necessary to pool the College’s resources with another school so as to be able to offer a wider range of subjects), this could be done without enrolling the female students from the other school and educating them on exactly the same footing as the (male) pupils at the College.

167. Given the conclusions which I have already reached, it is unnecessary to deal with this issue. In any event I am unwilling to do so because it expands the debate beyond the pure question of power with which I am concerned. It is far from clear, even if it would have been open to the Council to decide to introduce coeducation solely as an aid to educating male students, that the Council actually made its decision on that basis. If the Court is to go into the merits of the Council’s decision, then it must do so on a proper factual basis, rather than speculate about hypothetical reasoning the Council may not in fact have applied.

Conclusions and orders

168. I have concluded that the word “youth” in the 1873 Trust Deed was used in a gender-neutral sense, and does not mandate male-only enrolment at the College. The claim for a declaration to the contrary which was the subject of the separate hearing fails and must be dismissed. The balance of the proceedings may be mentioned before me at a convenient time for the purpose of determining what, if anything, remains for determination in the light of my decision.

169. I see no reason why the costs of the separate hearing should not follow the event. I will make an order accordingly. Any application for any different or varied order may be made in accordance with the Rules.

170. The orders of the Court are:

171. Order that the plaintiff’s claim for the declaration specified in prayer [3A] in the statement of claim be dismissed.

172. Order that the plaintiff pay the defendants’ costs of the separate hearing pursuant to the orders of the Court made on 11 February 2025.

**********

Amendments

13 June 2025

[11] Change of abbreviation [17] grammatical error