Blanch v Smith

Case [2024] NSWCATAD 20

Civil and Administrative Tribunal


New South Wales

  • Amendment notes
Medium Neutral Citation: Blanch v Smith [2024] NSWCATAD 20
Hearing dates: 23 November 2023
Date of orders: 22 January 2024
Decision date: 22 January 2024
Jurisdiction:Administrative and Equal Opportunity Division
Before: L Andelman, Senior Member
Decision:

The Tribunal declines to deal with the application as it involves an exercise of federal jurisdiction.

Catchwords:

PRACTICE AND PROCEDURE – Appropriate orders where claim involves federal jurisdiction - summary dismissal of proceedings under s 55(1)(b) of the Civil and Administrative Act 2013

HUMAN RIGHTS – Transgender vilification –aiding and abetting

CONSTITUTIONAL LAW (Cth) – Whether Tribunal has jurisdiction to hear and determine complaint – federal jurisdiction - where respondents raised constitutional claim of implied freedom of communication on political matters – whether s38S of the Anti-Discrimination Act 1977 imposes an unjustified burden on the implied freedom of political communication – whether the respondents’ claim was genuinely raised – whether the respondents’ claim was not capable on its face of legal argument.

Legislation Cited:

Anti-Discrimination Act 1977

Civil and Administrative Act 2013

Cases Cited:

Burns v Corbett [2018] HCA 15; (2018) 265 CLR 304

Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; 96 ALJR 476

Clubb v Edwards [2019] HCA 11; (2019) 267 CLR 171

Comcare v Banerji [2019] HCA 23; (2019) 267 CLR 373

David Cawthorn and Paraquad Association of Tasmania Incorporated v Citta Hobart Pty Ltd and Parliament Square Hobart Landowner Pty Ltd [2019] TASADT 10

Farm Transparency International Ltd v New South Wales [2022] HCA 23; 96 ALJR 655

Gleeson v Cavers:Cavers v Gleeson [2021] NSWCATCD 158

Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520

McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178

Sunol v Collier [2012] NSWCA 44

Texts Cited:

Nil

Category:Procedural rulings
Parties: Stephanie Blanch (Applicant)
Kirralie Smith & Binary Australia Ltd (Respondents)
Attorney General of NSW (Intervenor)
Representation:

Counsel:
C Gregory (Applicant)
F Maghami (Respondents)

Solicitors:
Solve Legal (Respondent)
Crown Solicitor (Intervenor)
File Number(s): 2023/00257857
Publication restriction: Nil

REASONS FOR DECISION

Background

  1. On 22 March 2023, Ms Blanch made a complaint to Anti-Discrimination NSW (ADNSW) against Ms Smith and Binary Australia Ltd in regard to conduct that occurred between 20 December 2022 and 22 March 2023. Ms Blanch alleged that Ms Smith posted information on multiple internet platforms using her image and her details of her sporting club. The information contained material which it was alleged constituted misgendering of Ms Blanch, hate speech, harassment and comments which amounted to vilification against transgender people thereby contravening ss 38S(1)(a) and 52 of the Act.

  2. ADNSW received the last material on 23 July 2023 and on 11 August 2023, ADNSW referred the complaint to this Tribunal under s93C(a) of the Anti-Discrimination Act (NSW) (the Act) because the President’s Delegate was of the opinion that the complaint could not be resolved by conciliation.

  3. Pleadings, evidence and submissions were filed by the parties in this…

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AGLC
Blanch v Smith [2024] NSWCATAD 20
Case
[2024] NSWCATAD 20
Decision Date

CaseChat Overview and Summary

Blanch v Smith involved a dispute between the parties concerning allegations of vilification on the basis of transgender status, with an additional constitutional challenge raised by the respondents. The proceedings were before the Anti-Discrimination Tribunal of New South Wales. The central issue was whether the Tribunal had jurisdiction to hear and determine the complaint, particularly given the respondents' assertion that the Anti-Discrimination Act 1977 imposed an unjustified burden on the implied freedom of political communication. Furthermore, the court had to decide if the respondents' constitutional claim was genuinely raised and if it was capable of a legal argument.

The court examined the nature of the complaint and the jurisdictional boundaries of the Tribunal. It assessed whether the federal jurisdiction was implicated due to the respondents' constitutional argument and whether the complaint involved matters of federal law. The court considered the seriousness and merit of the constitutional claim, as well as the potential implications for the implied freedom of political communication. It also evaluated whether the respondents' claim was genuinely raised and if it possessed the requisite legal substance to warrant further consideration.

Upon reviewing the arguments, the Tribunal concluded that the application involved an exercise of federal jurisdiction, given the constitutional issues raised. The court found that the respondents' claim, although raised, did not possess a basis capable of legal argument on its face. Consequently, the Tribunal declined to deal with the application. The decision hinged on the jurisdictional constraints and the nature of the constitutional claim, leading to the summary dismissal of the proceedings.

Orders

Orders of the court

The Tribunal declines to deal with the application as it involves an exercise of federal jurisdiction.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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