On 14 October 2025, the Court heard an appeal from a decision of Parker J. He found that the term “youth” in a 1873 trust deed establishing Newington College was gender-neutral. It did not need the school to admit only boys (Student A v Council of Newington College [2025] NSWSC 534).In other words, his Honour held that the Deed did not prohibit the admission of girls. As a result, Parker J dismissed the plaintiff’s application for declarations and related relief. The appeal was dismissed promptly after the hearing on 14 October 2025. The issue was significant to the public. The Court was ready to decide and reasons were to follow. The appeal was dismissed promptly after the hearing on 14 October 2025. The issue was significant to the public. The Court was ready to decide and reasons were to follow.
Background
The dispute stemmed from the Council of Newington College’s decision to transition the historically all-boys institution to co-education. This change will start with the junior schools in 2026 and the senior school in 2028. The appellant is a current student named Student A. Student A challenged this decision through an adult tutor. The argument was that the Deed’s object clause—“to offer an efficient course of education for youth”—referred exclusively to boys. This interpretation is based on its 19th-century context.
Newington College operates under the Newington College Council Act 1922 (NSW). This act grants corporate status to the Council. Section 13 also has specific requirements. It mandates that the Council hold all property on trust. This is to fulfill the College’s founding objects as set out in the 1873 Deed. It was accepted at trial and on appeal. Those objects are encapsulated in cl 3 of the Deed: “the provision of an efficient course of education for youth.”
Arguments and Evidence
Student A relied on:
- An 1848 dictionary definition of “youth” said to mean “boys”;
- Historical context, including that predecessor and related schools were male-only and that church and government education policies of the era were focused on boys; and
- A body of 19th-century newspaper articles consists of around 500 articles. About 30 of them are selected. These articles intended to show that “youth” was commonly used to mean “boys.”
Student A also invoked the “ancient documents rule.” This rule allows the use of contemporaneous materials to decide the Deed’s meaning.
The ancient documents exception to the hearsay rule allows statements in very old documents to be admitted as evidence. These documents are typically at least 20 years old. This exception applies when the author is no longer available to testify. For such a document to be admissible, it must be authenticated (its genuineness proven) and show no signs of unreliability. The rule permits the acceptance of factual assertions within the document for their truth without calling the original author. Nevertheless, if the document holds multiple layers of hearsay, each must independently satisfy an exception. The rationale for this rule is twofold:
- it recognises that witnesses with first-hand knowledge are unlikely to be found after many years; and
- it assumes older documents are generally more reliable because they were not created with future litigation in mind.
Primary Judgment
The primary judge rejected Student A’s arguments, holding that:
- “Youth” was unambiguously gender-neutral;
- The selected newspaper extracts were inadmissible or of no probative value, as most contemporaneous uses of “youth” were non-gendered; and
- The ancient documents rule did not apply because the deed was clear and unambiguous.
The appellant argued that the trial judge made an error. The judge incorrectly concluded that the term “youth” in the 1873 Deed of Indenture was used in a gender-neutral sense. Parker J should have determined that “youth” specifically referred to boys and young men. This finding would have precluded the admission of girls to Newington College. The appellant further submitted that his Honour was wrong. He should not have treated a collection of 19th-century newspaper articles as inadmissible evidence of the word’s meaning in 1873.
Parker J held that admitting such quotations would invite extensive, unhelpful arguments about individual contexts and authors. He stated that dictionaries, recognised reference sources, were the appropriate means of determining historical usage. Finally, the appellant argued that his Honour made an error. He found that the “ancient documents rule” could not apply without first establishing ambiguity or obscurity in the Deed. Parker J reasoned that because the term “youth” was clear. It was unambiguous, so the rule did not apply. Even if the evidence were admissible, it would not have altered the outcome.
Appeal
Student A appealed on four grounds:
1–2. That the primary judge erred in construing “youth” as gender-neutral;
3. That the judge erred in excluding or giving no weight to the newspaper evidence;
4. That the judge erred in finding the ancient documents rule inapplicable.
Court of Appeal (Bell CJ, Ward P, Free JA)
The Court dismissed the appeal, holding that:
Newspaper articles: The primary judge was correct not to rely on them. Only a small and selective number connected “youth” with “boys.” These were outweighed by the majority. Most used the term non-genderedly. Dictionaries were the appropriate reference source, not random contemporaneous publications.
Ancient documents rule: Properly rejected. The rule can only clarify existing ambiguities, not create them. The meaning of “youth” was clear and had not become obscure with time.
Meaning of “youth”: The ordinary and historical meaning was gender-neutral, supported by:
- Contemporary dictionaries (especially the Oxford English Dictionary);
- The Deed’s use of gender-neutral terms like “children” and “pupils”;
- The broad discretion conferred on the College Council about admissions; and
- Historical evidence showing evolving attitudes towards girls’ education in the 1870s.
The Court also found that:
The Deed’s wording deliberately avoided gender-specific terms (“sons” and “boys”) used in earlier drafts;
The College’s later practice of admitting only boys did not restrict the Council’s future power to admit girls; and
The Deed’s purpose was to offer flexibility for the education of all youth, not merely boys.
Conclusion
All four appeal grounds were dismissed. The Court confirmed that “youth” in the 1873 Deed is gender-neutral, permitting the Council to admit girls. Costs were awarded to the Council and the 26th respondent.