Secretary, Department of Family and Community Services v Smith

The case of *Secretary, Department of Family and Community Services v Smith* concerned an application for leave to appeal to the Court of Appeal of New South Wales. The applicant sought to appeal the refusal of a permanent injunction that would have restrained the disclosure of a child's identity, who was under the parental responsibility of the Minister and placed in foster care. The applicant had conceded at the trial that the court was engaged in a balancing exercise between the child's interests and other competing interests.

The legal issues before the Court of Appeal included whether the applicant could raise new arguments on appeal that contradicted a concession made at trial. Further, the court considered whether the primary judge's construction of a strict liability offence under section 105 of the *Children and Young Persons (Care and Protection) Act 1998*, which prohibits the publication of a child's name, was arguably wrong. Finally, the court had to determine whether the primary judge's exercise of discretion in refusing to grant the injunction had arguably miscarried.

The Court of Appeal dismissed the summons seeking leave to appeal. The judges found that the applicant was not entitled to raise new arguments on appeal that were contrary to concessions made in the court below. They also concluded that the primary judge's construction of the offence and exercise of discretion were not arguably wrong, and therefore, leave to appeal was refused.

The summons seeking leave to appeal was dismissed, and the applicant was ordered to pay the first respondent's costs of the summons.