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Blanch v Smith

Blanch v Smith

Case [2024] NSWDC 631 20 December 2024

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: Blanch v Smith [2024] NSWDC 631
Hearing dates: 18 October 2024, 12 December 2024
Decision date: 20 December 2024
Jurisdiction: Civil
Before: Wass SC DCJ
Decision:
See [197] – [199]

Catchwords:
APPEAL — Appeal Against Dismissal of Application for Apprehended Personal Violence Order — Appeal Allowed — Transgender Woman — Targeted by Activist — Binary Australia — Offensive Belittling and Parodying — Genuine Fear of Harassment and Intimidation — Reasonable Fears — Justifies the Making of an Order Protecting the Appellant from Further Harassment – No Constitutional Impediment

Legislation Cited:
Anti-Discrimination Act 1977 (NSW)
Crimes (Domestic and PersonalViolence) Act 2007 (NSW)
Interpretation Act 1987 (NSW)
Judiciary Act 1903 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Coleman v Power (2004) 220 CLR 1
Comcare v Banerji (2019) 267 CLR 373
Farm Transparency International Ltd v New South Wales [2022] HCA 23
Hogan v Hinch (2011) 243 CLR 506
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Lee vR (2023) NSWCCA 70
McCloy v New South Wales (2015) 257 CLR 178
Minnesota v Barber (1890) 136 US 313
Murdoch v Hadley [2011] NSWLC 11
PE v MU [2010] NSWDC 2
R v Songcuan(No 3) [2023] NSWSC 183
Sunol v Collier (No 2) (2012) 260 FLR 414
Veness v Hodge [2015] NSWCA 20
Wotton v Queensland [2012] HCA 2

Category: Principal judgment
Parties: Stephanie Blanch (Appellant)
Kirralie Smith (Respondent)
Attorney-General of New South Wales (Intervener)
Representation:
Counsel:
T O’Rourke (Appellant)
F Maghami and J Charlton (Respondent)
L Moretti (Intervener)
Solicitors:
Inner City Legal Centre (Appellant)
Solve Legal (Respondent)
New South Wales Crown Solicitor’s Office (Intervener)

File Number(s): 2023/75275
Decision under appeal

Court or tribunal:

Local Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

31 January 2024

Before:

Hawkins LCJ

File Number(s):

2023/75275

JUDGMENT

Background and Introduction

Introduction and Parties

This is an appeal, filed on 23 February 2024, from a refusal by Local Court Judge Hawkins at Taree to make an Apprehended Personal Violence Order (“APVO”) pursuant to s 19 of the Crimes (Domestic and PersonalViolence) Act 2007 (NSW) (“the Act”), for the protection of the Appellant arising from alleged reasonable fear of intimidation and harassment by the Respondent.
The parties rely on a joint Court Book and have filed written submissions. The appeal was heard primarily on 18 October 2024.
Ms T O’Rourke of Counsel appeared on behalf of the Appellant, instructed by Inner City Legal Centre.
Mr F Maghami and Mr J Charlton of Counsel appeared for the Respondent, instructed by Solve Legal.
Given the potential constitutional issues, the New South Wales Attorney-General (“the Attorney”) was given leave to intervene. Mr L Moretti of Counsel appeared for the Attorney, instructed by the New South Wales Crown Solicitor’s Office.
The matter was relisted on 12 December 2024, when the Court was due to give judgment. Ms Beashel solicitor appeared for the Appellant. Mr Shamsabad solicitor appeared for the Respondent. No appearance…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Blanch v Smith

Details

AGLC: Blanch v Smith [2024] NSWDC 631
Case: [2024] NSWDC 631
Decision Date: 20 December 2024

CaseChat Overview and Summary

Blanch v Smith was an appeal against the dismissal of an application for an apprehended personal violence order, heard in the Supreme Court of Queensland. The appellant, Blanch, a transgender woman, sought protection from Smith, who had engaged in a campaign of offensive and belittling behaviour directed at her, including parodying her gender identity. The primary judge had dismissed the application on the basis that the appellant's fears were not reasonable. Blanch appealed this decision, arguing that the conduct amounted to harassment and intimidation that justified the making of an apprehended personal violence order.

The court was required to determine whether the appellant's fears of harassment and intimidation were reasonable, and whether such fears justified the making of an apprehended personal violence order. This involved examining the nature and extent of the conduct by the respondent, as well as the context in which it occurred. The court also had to consider whether there was any constitutional impediment to making such an order.

The court found that the respondent's conduct, which included making derogatory comments about the appellant's gender identity and publishing her personal information, amounted to harassment and intimidation. The court held that the appellant's fears of further harassment and intimidation were reasonable, and that this justified the making of an apprehended personal violence order. The court also dismissed any suggestion that there was a constitutional impediment to making such an order, as the making of the order did not infringe upon any constitutional rights or freedoms. The appeal was allowed, and the order sought by the appellant was made.

Orders

Orders of the court

See [197] – [199]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

Blanch v Smith [2024] NSWDC 631

Most Recent Citation

Blanch v Smith [2025] NSWDC 94

Cases Citing This Decision

Smith v Blanch [2025] NSWCA 188
Citation 1 (Para 5)

…On 20 December 2024 Wass DCJ upheld the respondent’s appeal and made an APVO against the applicant: Blanch v Smith [2024] NSWDC 631 (J).…
Smith v Blanch [2025] NSWCA 124
Citation 2 (Para 6)

…Ms Blanch successfully appealed to the District Court (the Court below) pursuant to s 84(2)(a1) of the Act: Blanch v Smith [2024] NSWDC 631 (J). In the Court below, Ms Smith argued that her online activities and posts were made in her capacity as a political advocate for Binary Australia and that, accordingly, no A…
Blanch v Smith [2025] NSWDC 94
Citation 3 (Para 1)

…nst a judgment of the Local Court, declining to grant her an apprehended violence order in the circumstances set out in my judgment of Blanch v Smith [2024] NSWDC 631 (“the Judgment”) delivered on 20 December 2024.…

See all citing cases →

Cases Cited

R v Songcuan (No 3) [2023] NSWSC 183
Citation 1

…257 CLR 178 Minnesota v Barber (1890) 136 US 313 Murdoch v Hadley [2011] NSWLC 11 P E v M U [2010] NSWDC 2 R v Songcuan (No 3) [2023] NSWSC 183 Sunol v Collier (No 2) (2012) 260 FLR 414 Veness v Hodge [2015] NSWCA 20 Wotton v Queensland [2012] HCA 2 Category: Principal judgment Parties: Stephanie Blanch (Appellant…
Farm Transparency International Ltd v New South Wales [2022] HCA 23
Citation 2 (Para 142)

…submitted that this is so when one has regard to the legal and practical operation of the law: Farm Transparency International Ltd v New South Wales [2022] HCA 23, per Kiefel CJ and Keane J. The freedom is burdened, not only how it may operate in this case, which is but an illustration of its operation, but how…
Comcare v Banerji [2019] HCA 23
Citation 3 (Para 164)

…e control of prohibition of “mere” political communications does not advance the purpose of the statute in any rational manner: Comcare v Banerji (2019) 267 CLR 373 at 395-396 [20].…
McCloy v New South Wales [2015] HCA 34
Citation 4 (Para 160)

…r or not the Act is a proportionate response to its purpose, ascertained by a structured method of proportionality analysis: McCloy v New South Wales (2015) 257 CLR 178 at 193-195 [2], 217 [79].…
Veness v Hodge [2015] NSWCA 20
Citation 5

…NSWLC 11 P E v M U [2010] NSWDC 2 R v Songcuan (No 3) [2023] NSWSC 183 Sunol v Collier (No 2) (2012) 260 FLR 414 Veness v Hodge [2015] NSWCA 20 Wotton v Queensland [2012] HCA 2 Category: Principal judgment Parties: Stephanie Blanch (Appellant) Kirralie Smith (Respondent) Attorney-General of New South Wales (Interv…
Sunol v Collier (No 2) [2013] NSWCA 196
Citation 6 (Para 159)

…nally prescribed system of representative government (in fact it may enhance it having regard to the matters considered in Sunol v Collier (No 2) (2012) 260 FLR 414 (“ Sunol v Collier ”), to which I will return).…
Sunol v Collier (No 2) [2012] NSWCA 44
Citation 7 (Para 159)

…This matter is not in issue. It is accepted, and I find, that the purpose of the Act is “legitimate,” in that it is compatible with the maintenance of the constitutionally prescribed system of representative government. It is to ensure the safety and protection of all persons who experience personal…
Wotton v Queensland [2012] HCA 2
Citation 8 (Para 144)

…It is submitted by the Respondent to be analogous to the circumstances of Wotton v Queensland [2012] HCA 2. It is submitted that it is difficult to see what “significant legal distinction exists in the difference between a citizen subject to control while on parole and those (such as the Respondent) who have ne…
Hogan v Hinch [2011] HCA 4
Citation 9 (Para 126)

…The Respondent submitted that the implied freedom in practical terms is wide: Hogan v Hinch (2011) 243 CLR 506 at 543-544 [49] per French CJ and captures all communications and that to the extent the Act is intended to be utilised to stifle and control political communications, it effectively burdens the implied free…
Murdoch v Hadley [2011] NSWLC 11
Citation 10

…520 Lee v R (2023) NSWCCA 70 McCloy v New South Wales (2015) 257 CLR 178 Minnesota v Barber (1890) 136 US 313 Murdoch v Hadley [2011] NSWLC 11 P E v M U [2010] NSWDC 2 R v Songcuan (No 3) [2023] NSWSC 183 Sunol v Collier (No 2) (2012) 260 FLR 414 Veness v Hodge [2015] NSWCA 20 Wotton v Queensland [2012] HCA 2 Cat…
PE v MU [2010] NSWDC 2
Citation 11

…70 McCloy v New South Wales (2015) 257 CLR 178 Minnesota v Barber (1890) 136 US 313 Murdoch v Hadley [2011] NSWLC 11 P E v M U [2010] NSWDC 2 R v Songcuan (No 3) [2023] NSWSC 183 Sunol v Collier (No 2) (2012) 260 FLR 414 Veness v Hodge [2015] NSWCA 20 Wotton v Queensland [2012] HCA 2 Category: Principal judgment…
Coleman v Power [2004] HCA 39
Citation 12

…W) Interpretation Act 1987 (NSW) Judiciary Act 1903 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Coleman v Power (2004) 220 CLR 1 Comcare v Banerji (2019) 267 CLR 373 Farm Transparency International Ltd v New South Wales [2022] HCA 23 Hogan v Hinch (2011) 243 CLR 506 Lange v Australian Broadcasting C…
Lange v Australian Broadcasting Corporation [1997] HCA 25
Citation 13 (Para 125)

…The freedom of communication on matters of politics and government is well recognised in cases such as Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 (“ Lange v Australian Broadcasting Corporation ”). That way citizens are able to exercise a free and informed choice as electors in accordance with the…
Minnesota v Barber (1890) 136 US 313
Citation 14 (Para 158)

…er, the Respondent asks the Court to consider the long-established judicial caution authoritatively articulated by Harlan J in Minnesota v Barber (1890) 136 US 313.…

Legislation Cited

Anti-Discrimination Act 1977 (NSW)
1 mention
Constitution of Australia (Cth)
1 mention (from Para 123)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
1 mention (from Para 1)
Interpretation Act 1987 (NSW)
1 mention
Judiciary Act 1903 (Cth)
1 mention (from Para 16)
Uniform Civil Procedure Rules 2005 (NSW)
1 mention (from Para 16)

Medium Neutral Citation:	Blanch v Smith [2024] NSWDC 631
Hearing dates:	18 October 2024, 12 December 2024
Decision date:	20 December 2024
Jurisdiction:	Civil
Before:	Wass SC DCJ
Decision:	See [197] – [199]
Catchwords:	APPEAL — Appeal Against Dismissal of Application for Apprehended Personal Violence Order — Appeal Allowed — Transgender Woman — Targeted by Activist — Binary Australia — Offensive Belittling and Parodying — Genuine Fear of Harassment and Intimidation — Reasonable Fears — Justifies the Making of an Order Protecting the Appellant from Further Harassment – No Constitutional Impediment
Legislation Cited:	Anti-Discrimination Act 1977 (NSW) Crimes (Domestic and PersonalViolence) Act 2007 (NSW) Interpretation Act 1987 (NSW) Judiciary Act 1903 (Cth) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Coleman v Power (2004) 220 CLR 1 Comcare v Banerji (2019) 267 CLR 373 Farm Transparency International Ltd v New South Wales [2022] HCA 23 Hogan v Hinch (2011) 243 CLR 506 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Lee vR (2023) NSWCCA 70 McCloy v New South Wales (2015) 257 CLR 178 Minnesota v Barber (1890) 136 US 313 Murdoch v Hadley [2011] NSWLC 11 PE v MU [2010] NSWDC 2 R v Songcuan(No 3) [2023] NSWSC 183 Sunol v Collier (No 2) (2012) 260 FLR 414 Veness v Hodge [2015] NSWCA 20 Wotton v Queensland [2012] HCA 2
Category:	Principal judgment
Parties:	Stephanie Blanch (Appellant) Kirralie Smith (Respondent) Attorney-General of New South Wales (Intervener)
Representation:	Counsel: T O’Rourke (Appellant) F Maghami and J Charlton (Respondent) L Moretti (Intervener) Solicitors: Inner City Legal Centre (Appellant) Solve Legal (Respondent) New South Wales Crown Solicitor’s Office (Intervener)
File Number(s):	2023/75275
Decision under appeal	Court or tribunal: Local Court of New South Wales Jurisdiction: Civil Date of Decision: 31 January 2024 Before: Hawkins LCJ File Number(s): 2023/75275