(2) The applicant is to pay the first respondent’s costs.
Catchwords:
CIVIL PROCEDURE — Court of Appeal — supervisory jurisdiction — whether primary judge denied applicant procedural fairness in contravention of rule in Browne v Dunn — where no such procedural unfairness
CIVIL PROCEDURE — Court of Appeal — supervisory jurisdiction — whether primary judge elided two components of test in s 19 of Crimes (Domestic and Personal Violence) Act 2007 (NSW) in deciding whether to make an apprehended violence order — where no such jurisdictional error established
CIVIL PROCEDURE — Court of Appeal — supervisory jurisdiction — whether primary judge applied incorrect standard of appellate review on an appeal against finding that conduct insufficient to warrant making of an apprehended personal violence order — where correctness standard applies to finding that the court has jurisdiction to make an apprehended violence order under s 19 of Crimes (Domestic and Personal Violence) Act 2007 (NSW) — where primary judge did not apply incorrect standard of appellate review
CIVIL PROCEDURE — Court of Appeal — supervisory jurisdiction — whether primary judge took into account irrelevant factors or failed to take into account relevant factors in applying s 19 of Crimes (Domestic and Personal Violence) Act 2007 (NSW) — where no such jurisdictional error made out
CIVIL PROCEDURE — Court of Appeal — supervisory jurisdiction — whether primary judge erred in finding that ss 7, 19 and 35(2)(f) of Crimes (Domestic and Personal Violence) Act 2007 (NSW) did not impermissibly burden the constitutionally protected implied freedom of political communication — where burden limited and of minor significance — where purpose accepted as legitimate in relevant sense — where impugned provisions suitable in relevant sense and burden outweighed by benefits
[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.
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Details
AGLC
Smith v Blanch [2025] NSWCA 188
Case
[2025] NSWCA 188
Decision Date
CaseChat Overview and Summary
The Court of Appeal of New South Wales, comprising Kirk, Stern and McHugh JJA, considered an appeal brought by Smith against Blanch. The appeal concerned the primary judge's decision regarding an apprehended violence order.
The central legal issues before the Court of Appeal were whether the primary judge had denied the applicant procedural fairness, contravened the rule in *Browne v Dunn*, elided components of the test under section 19 of the *Crimes (Domestic and Personal Violence) Act 2007* (NSW), applied an incorrect standard of appellate review, taken into account irrelevant factors or failed to consider relevant factors, or erred in finding that the impugned provisions did not impermissibly burden the constitutionally protected implied freedom of political communication.
The Court of Appeal found no jurisdictional error on the part of the primary judge. It held that the primary judge had not denied procedural fairness, nor had they contravened the rule in *Browne v Dunn*. The court determined that the primary judge had correctly applied the test under section 19 of the *Crimes (Domestic and Personal Violence) Act 2007* (NSW) and had applied the correct standard of appellate review, which was the correctness standard in relation to the jurisdictional finding. Furthermore, the court found that no irrelevant factors were taken into account, nor were relevant factors ignored. Regarding the constitutional challenge, the court concluded that the burden imposed by the relevant sections of the Act was limited and of minor significance, with a legitimate purpose and appropriate suitability, and that the benefits outweighed the burden.
Consequently, the Court of Appeal dismissed the summons dated 18 March 2025 and ordered that the applicant pay the first respondent's costs.
Orders
Orders of the court
(1) The summons dated 18 March 2025 is dismissed.
(2) The applicant is to pay the first respondent’s costs.