Smith v Blanch

[2025] NSWCA 124

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Smith v Blanch [2025] NSWCA 124

Hearing dates:

2 June 2025

Date of orders:

2 June2025

Decision date:

05 June 2025

Before:

Adamson JA

Decision:

(1) Order pursuant to s 7(a) and (c) of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act) and upon the grounds that:

(a)   the order is necessary to protect prejudice to the proper administration of justice (s 8(1)(a) of the Act); and/or

(b)   the order is necessary to protect the safety of Stephanie Blanch (s 8(1)(c) of the Act).

there be no publication or disclosure of information that identifies or tends to identity the employment, occupation, residential address or financial position of Stephanie Blanch.

(2)   Order, on the same basis as order (1) that there be no publication, other than to the parties’ legal advisers, of the following parts of the affidavit of Stephanie Blanch affirmed 29 May 2025:

(a)   her address;

(b)   her occupation;

(c)   paragraph 11 except for the first five words;

(d)   all of paragraph 13;

(e)   all of paragraph 15; and

(f)   Annexures A and B.

(3) Order, pursuant to s 12 of the Act that orders (1) and (2) apply for a period of 2 years from the date of these orders and throughout the Commonwealth of Australia.

(4)   Grant leave to the first respondent to amend her notice of motion filed 19 May 2025 (the motion) by:

(a)   substituting “16 May 2025” with “29 May 2025” in prayer 2; and

(b)   substituting “s 8(1)(a), (c) and (d)” with “s 8(1)(a) and (c).

(5)   Refuse the applicant’s (the respondent to the motion) application for an adjournment in respect of prayer 3 of the motion filed 19 May 2025.

(6) Specify, pursuant to r 42.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), and subject to r 42.4(2) of the UCPR, that the maximum costs that may be recovered by the applicant, Kirralee Smith, from the respondent, Stephanie Blanch, is nil.

(7)   Extend the time within which the applicant is file and serve any submissions in reply, as set out in order 4 of the orders dated 22 April 2025, to 10 June 2025.

(8)   Make no order as to the costs of the motion.

Catchwords:

CIVIL PROCEDURE — suppression and non-publication — interlocutory issues — suppression orders — transgender woman — targeted by activist — Binary Australia — order sought suppressing information concerning employment, occupation, residential address and financial position — whether order “necessary to protect the safety of any person” — whether order “necessary to prevent prejudice to the proper administration of justice” — Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8

COSTS — application for protective costs order — appellant seeking capped costs — protective costs order made — factors to consider in making protective costs order — whether first respondent brought application in the public interest — protective costs order made — Uniform Civil Procedure Rules 2005 (NSW), r 42.4(1)

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW), ss 6, 7, 8, 12

Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 19, 84, 99, 99A

Judiciary Act 1903 (Cth), s 78B

Supreme Court Act 1970 (NSW), ss 46, 69

Uniform Civil Procedure Rules 2005 (NSW), r 42.4

Cases Cited:

AB (A Pseudonym) v R (No 3) [2019] NSWCCA 46

Blanch v Smith [2024] NSWDC 631

John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512; [2005] NSWCA 101

Rock v Henderson; Rock v Henderson (No 2) [2025] NSWCA 47

Sherborne Estate (No 2): Vanvalen v Neaves; Gilroy v Neaves (2005) 65 NSWLR 268; [2005] NSWSC 1003

Category:

Procedural rulings

Parties:

Kirralee Smith (Appellant)
Stephanie Blanch (First Respondent)
Attorney General of New South Wales (Second Respondent)
District Court of New South Wales (Third Respondent)

Representation:

Counsel:
K Kutasi (Appellant)
B O’Kane (First Respondent)
C Farrugia (Second Respondent)
Submitting appearance (Third Respondent)

Solicitors:
Solve Legal (Appellant)
Inner City Legal Centre (First Respondent)
Crown Solicitor’s Office (Second and Third Respondents)

File Number(s):

2025/107811

JUDGMENT

Introduction

1. By notice of motion filed on 19 May 2025, Stephanie Blanch applied for orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) (the NPO Act) for the non-publication of details of her address, occupation and financial position revealed in documents associated with the proceedings and an order that only the applicant’s legal adviser be permitted to see such details as are disclosed in her affidavit affirmed on 29 May 2025. She also sought an order for a protective costs order pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 42.4(1) that she not be liable for any costs ordered against her. In substance, the order she sought was an order that if she is unsuccessful in resisting Kiralee Smith’s application for judicial review of the order made on 20 December 2024 by Wass SC DCJ (the primary judge) her liability for Ms Smith’s costs be capped at nil.

2. I have power, as a single judge, to make such an order pursuant to s 46(2)(a) of the Supreme Court Act 1970 (NSW).

Background

3. The application arises in the following context. Ms Blanch, who identifies as a transgender woman, plays for a local soccer team in rural NSW. Ms Smith, who belongs to an association called Binary Australia, posted messages on Twitter and Facebook, referring to Ms Blanch as “a bloke” and “a bloke in a frock” and reported that Ms Blanch was playing in the women’s division. Ms Smith’s online messages generated a significant reaction online, which engendered fears in Ms Blanch for her safety.

4. Ms Blanch obtained legal representation from Inner City Legal Centre which acts for her on a conditional no-win, no-fee basis. The Centre is prepared to continue to act for her on that basis.

Ms Blanch’s unsuccessful application for an APVO in the Local Court

5. Ms Blanch applied to the Local Court for an Apprehended Personal Violence Order (APVO) pursuant to s 19 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (the Act). It was refused by the magistrate on the basis that Ms Smith’s conduct, which Ms Blanch had reasonable grounds to fear and did fear, was not sufficient to warrant the making of an APVO.

Ms Blanch’s successful appeal to the District Court

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 APVO could be made against her since any such order would transgress her freedom of political communication and would therefore be unconstitutional. She served a notice pursuant to s 78B of the Judiciary Act 1903 (Cth), following which the Attorney General of New South Wales was joined to the proceedings in the District Court as an intervener.

7. The primary judge found that Ms Smith’s conduct involved “a sustained campaign of belittling, harassment and intimidation” towards Ms Blanch (J [28]). Her Honour found that molestation could occur without physical contact and noted that Ms Smith accepted that “cyberbullying” was a “species of ‘non-physical’ molestation, allowing unwanted ‘pestering’ or ‘annoyance’ to be made directly to a complainant” (J [31]).

8. The primary judge found at J [58]:

Even if it is accepted that the purpose of the Act is to prevent personal violence between the parties, given [Ms Smith’s] willingness to identify and focus her rhetoric on [Ms Blanch] by using her photographs, by referring to the community in which she lives and where she is the only transgender playing soccer in a small community …, there is, in my view, a relationship between the parties in the community. It is a relationship where [Ms Blanch] is simply trying to play social soccer in her local community, in line with her identification, and consistent with Football New South Wales and Football Australia’s policies of tolerance, and [Ms Smith] is trying to stop that occurring by her political statements which include parodying, harassment and intimidatory conduct. I do not agree that any impugned communications need to be made directly to [Ms Blanch]. It is sufficient that they were published in a way that [Ms Blanch] became aware of them and held a reasonable fear as a result. In my view, the personal conduct in this case is neither” remote” nor “speculative.”

9. The primary judge found that there was no error in the magistrate’s finding that Ms Blanch feared harassment, particularly online harassment, and, further, that Ms Blanch had reasonable grounds for that fear (J [81]). Her Honour also found Ms Blanch’s fears of future intimidation and harassment to be well-founded (J [108]). Her Honour found that Ms Smith’s conduct was sufficient to warrant the making of an APVO.

10. The primary judge also found, at [80]:

[The magistrate] was without doubt that [Ms Blanch] was chosen by [Ms Smith] as a case study due to the ideological issues that remain important to [Ms Smith]. I agree.

11. As to the constitutional question, the primary judge found that the relevant provisions of the Act did not impose a burden on the freedom of political communication (J [141]-[156]). Her Honour noted that it was common ground that the relevant provisions of the Act have a legitimate purpose (J [157]-[159]). The primary judge found that the relevant provisions of the Act were suitable (J [162]-[166]), necessary (J [167]-[172]) and “adequate in the balance” (J [173]-[182]).

12. The primary judge declined to find that the Act was invalid on the basis of the implied freedom of political communication (J [193]), allowed the appeal (J [197]) and made an APVO against Ms Smith in favour of Ms Blanch (J [197]-[199]).

13. The order was made in the following terms for the protection of Ms Blanch, prohibiting or restricting the behaviour of Ms Smith for a period of two years (J [199]):

(1)   The Respondent must not do any of the following to the protected person, the Appellant, or anyone with whom she has a domestic relationship:

(a)   Assault or threaten her;

(b)   Stalk, harass or intimidate her; and

(c)   Intentionally or recklessly destroy or damage any property or harm an animal that belongs to or is in her possession.

(2)   The Respondent must not approach the Appellant or contact her in any way unless the contact is through a lawyer.

(3)   The Respondent must not approach Wingham Football Club or Taree Wildcats Football Club.

(4)   The Respondent must not go into:

(a)   Any place where the Appellant lives; or

(b)   Any place where the Appellant works; or

(c)   The Wingham Sporting Complex or soccer fields.

(5)   The Respondent is not to name or identify the Appellant by her name Stephanie Blanch or by [name redacted].

14. By summons filed on 19 March 2025 in this Court’s supervisory jurisdiction conferred by s 69 of the Supreme Court Act, Ms Smith seeks an order that the APVO be set aside and a declaration that the Act does not proscribe Ms Smith’s political communications. This application is listed for final hearing on 23 June 2025 with an estimate of two days.

Application for orders under the NPO Act

15. Ms Blanch sought orders under the NPO Act for the non-publication of information that tends to disclose her employment, occupation, residential address or financial position. I made these orders (which are set out at the end of these reasons) in the course of the oral hearing on 2 June 2025. These orders were not ultimately opposed by Mr Kutasi, who appeared on behalf of Ms Smith. However it is necessary to give reasons for the orders which I made.

16. Ms O’Kane, who appeared on behalf of Ms Blanch, relied on the affidavits of Ms Blanch affirmed 29 May 2025 and Katherine Green affirmed 14 May 2025 in support of the application. Exhibited to Ms Green’s affidavit is a witness statement of Ms Blanch made on 23 May 2023, which was relied on in the Local Court and in the Court below. Ms Blanch’s affidavit in support of the motion was not served on Mr Kutasi until the hearing of the matter. However, its substance and effect were amply disclosed in Ms Blanch’s submissions in support of the application and in correspondence which I find were sufficient to give Mr Kutasi notice of its contents. Further, Mr Kutasi did not seek to cross-examine Ms Blanch on her affidavit, having been invited by Ms Blanch’s solicitors to indicate whether he wished to.

17. The basis of Ms Blanch’s claim for a non-publication order appears from her affidavit affirmed 29 May 2025 in which she deposed:

20     I seek that my personal details, address, occupation and financial position as set out in this affidavit are prevented from publication, are supressed and that disclosure of that information be limited to the legal representatives for the parties for the purposes of these proceedings only.

21         I am scared that without protection of my personal and sensitive information, that it will be disseminated to the Applicant and potentially by the Applicant to third parties who are not involved in the proceedings.

22        I am fearful that due to these proceedings, I will be the subject of further targeted harassment.

23        I am concerned for both my physical and mental safety if my identify and personal details are not supressed.

24        I am scared that someone who hates transgender people or opposes our place in society will find out my identity, will find out where I live or work and will become angry and attack, intimidate or harass me.

25        I understand that there are already further publications or posts referring to me and including images of my face. Annexed hereto and marked with the letter “C” are the further publications or posts concerning me since the handing down of the District Court judgment.

18. Social media platforms attract the reasonable and the less so, the law-abiding and the disinhibited, the rational and those beset by conspiracy theories which may be the product of mental illness. The potential for online comment to deteriorate into verbal abuse and to give rise to a risk of physical assault or harassment is obvious: see, for example, AB (A Pseudonym) v R (No 3) [2019] NSWCCA 46. Some of the online material exhibited to Ms Blanch’s statement is abusive and intemperate and expressly referred to physical assault of Ms Blanch. I accept that the NPO is necessary to protect Ms Blanch’s safety.

19. Ms O’Kane also advanced a further ground in support of the application under the NPO Act: that if the order were not made, it might deter others in a similar position to Ms Blanch from seeking an order under the Act because the litigation might expose them to online criticism from those who hold similar views to those held by Ms Smith and members of Binary Australia. This, in turn, would interfere with the proper administration of justice because, say, an unsuccessful applicant for an order (as Ms Blanch was in the Local Court) may be disinclined to appeal to the District Court, for fear of the potential for online responses.

20. I accept this submission and agree that the order is also necessary to protect the proper administration of justice: s 8(1)(a) of the NPO Act.

21. In deciding whether to make an order under the Act, I am required, by s 6 of the NPO Act to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. The power to make an order is conferred by s 7 of the NPO Act. The duration of the order, which must be for no longer than is reasonably necessary to achieve the purpose for which it is made must be specified in the order: s 12 of the NPO Act.

22. While the making of the order, in the terms sought, affects the principle of open justice, it does so only to a very limited extent. The public interest in the litigation does not depend in any way on Ms Blanch’s occupation, financial position or address. Further, the duration sought, which broadly corresponds with the duration of the APVO, is reasonably necessary to achieve the purpose of the order.

23. I note, for completeness, that Mr Kutasi not only did not oppose the making of non-publication orders under the NPO Act but he did not submit that the grounds relied on by Ms Blanch (ss 8(1)(a) and (c) of the NPO Act) were inapplicable or that the duration sought by Ms O’Kane was longer than was reasonably necessary to achieve the purpose of the order.

24. Having satisfied myself that the orders sought were appropriate, I pronounced them in Court, with reasons to follow.

Ms Smith’s application for an adjournment of Ms Blanch’s application for a protective costs order

25. Mr Kutasi applied for an adjournment of prayer 3 of the motion, being the application for a protective costs order, on the basis that he needed time to put on submissions and had not had sufficient notice as he had only been provided with Ms Blanch’s affidavit in the course of the oral hearing on 2 June 2025.

26. Ms O’Kane opposed the application on the basis that the Court had made orders for the filing and service of submissions by both parties by 30 May 2025, with which, apart from the affidavit of Ms Blanch, Ms Blanch had complied. The only reason the affidavit of Ms Blanch was not provided was that Mr Kutasi did not have instructions to give an undertaking not to disclose its contents to Ms Smith and therefore the affidavit was not served. However, as referred to above, its contents were summarised in Ms Blanch’s written submissions. Mr Kutasi ultimately conceded that he did not propose to adduce evidence in response to Ms Blanch’s affidavit but he wanted a short time to put on written submissions.

27. I consider that Mr Kutasi was given ample notice of the substance of Ms Blanch’s application for a protective costs order. He decided not to put on written submissions in opposition to the application, notwithstanding directions made by the Registrar that they be filed and served by 30 May 2025. He was given time to speak with his client over the phone during the oral hearing (another matter was interposed during the adjournment). In those circumstances, and given the imminence of the hearing of Ms Smith’s substantive application before this Court, I refused Mr Kutasi’s application for an adjournment.

Application for a protective costs order

28. Although termed a protective costs order, the order sought by Ms Blanch was, in effect, that her costs be capped at nil pursuant to UCPR, r 42.4 which provides:

42.4   Power to order maximum costs

(1)     The court may by order, of its own motion or on the application of a party, specify the maximum costs that may be recovered by one party from another.

(2)     A maximum amount specified in an order under subrule (1) may not include an amount that a party is ordered to pay because the party—

(a)     has failed to comply with an order or with any of these rules, or

(b)     has sought leave to amend its pleadings or particulars, or

(c)     has sought an extension of time for complying with an order or with any of these rules, or

(d)     has otherwise caused another party to incur costs that were not necessary for the just, quick and cheap—

(i)     progress of the proceedings to trial or hearing, or

(ii)     trial or hearing of the proceedings.

(3)     An order under subrule (1) may include such directions as the court considers necessary to effect the just, quick and cheap—

(a)     progress of the proceedings to trial or hearing, or

(b)     trial or hearing of the proceedings.

(4)     If, in the court’s opinion, there are special reasons, and it is in the interests of justice to do so, the court may vary the specification of maximum recoverable costs ordered under subrule (1).

29. An application for such an order ought generally be made at the earliest opportunity: Sherborne Estate (No 2): Vanvalen v Neaves; Gilroy v Neaves (2005) 65 NSWLR 268; [2005] NSWSC 1003 (Sherborne) at [24]-[26] (Palmer J). Rule 42.4(1) is particularly apposite when parties may be fuelled by animosity or who may become “carried away by the desire to vindicate their positions publicly in a court of justice”: Sherborne at [27].

29. The bases on which Ms Blanch seeks an order limiting her costs to nil are as follows.

30. First, under the Act, Ms Blanch as the “protected person” could not be the subject of an order for costs in the Local Court or in the Court below unless either court was satisfied that her application was vexatious: s 99A. Section 99(2) provides that costs other than professional costs are not to be awarded in AVO proceedings. Professional costs are those relating to professional expenses and disbursements (including witnesses’ expenses) in respect of AVO proceedings before a court (but not court fees payable to a court): s 99(1). The court may, subject to s 99A, award professional costs to the applicant or the defendant in accordance with s 99: s 99(3).

31. Second, Ms Blanch’s financial position is such that were a costs order to be made against her, it would have ruinous consequences for her to the extent to which, if no order capping her maximum costs at nil is made, she is unwilling to participate further in the litigation.

32. Third, Ms Smith has an interest in the litigation which goes beyond Ms Blanch and extends generally to the participation of transgender women in women’s sport. As far as the evidence before me indicates, this is a topic of interest to several members of the public. Ms Smith’s challenge to the APVO granted to Ms Blanch by the primary judge is based not only on the Act but on the extent of her constitutionally guaranteed freedom of political communication. It can reasonably be inferred (and the magistrate and the primary judge found as much) that Ms Smith regards the APVO which Ms Blanch obtained against her to be an appropriate vehicle for her to test the bounds of that freedom. By contrast, Ms Blanch would appear to have no particular interest in the litigation save that she wants to retain the APVO for her own protection.

33. Fourth, Ms O’Kane submitted that, in circumstances where proceedings under the Act were, in the main, “no costs” matters for a protected person, it would be anomalous if this Court were not to give a respondent the protection of a capping order in circumstances where Ms Smith was challenging an APVO ordered against Ms Smith. She also submitted that proceedings such as the present could operate oppressively against someone such as Ms Blanch.

34. Mr Kutasi submitted that granting a protective costs order would be manifestly unfair. He made reference to metaphors, such as “having one’s cake and eating it too” (which I understood to be a reference to seeking costs in the Court below but seeking immunity for costs in this Court) and “if you hunt with the foxes, you hunt with the hounds” (which I understood to mean that if you want your costs paid if you win, you have to be willing to pay the other side’s costs if you lose). He submitted:

The only reason we’re here today is because Ms Blanch appealed to the District Court.

36. Further, Mr Kutasi contended that Ms Smith knew next to nothing about Ms Blanch’s financial position (despite the affidavit setting it out, in respect of which she was not required for cross-examination) and that there was no reason why the ordinary rules, that costs ought follow the event, ought not apply. He also submitted that costs ought be dealt with at the end of a matter and not in advance of the hearing. He submitted that Ms Blanch could have applied for a “maximum costs order” (a curious submission since the order on which Ms Blanch sought the protective costs order is UCPR r 42.4(1), which confers power on the Court to put a cap on the costs a party can recover).

37. Mr Kutasi also foreshadowed that, in addition to the constitutional question, Ms Smith sought to challenge the APVO in this Court on the basis that Ms Blanch’s application has never involved “any domestic violence of any alleged personal physical violence”.

38. Mr Kutasi described Ms Blanch’s application as “very premature [and] unsupported”.

Consideration

39. I was persuaded after hearing oral argument that it was appropriate to cap Ms Blanch’s liability for costs at nil under UCPR, r 42.4(1) (this needs to be read subject to UCPR, r 42.4(2)). My reasons for making the order are as follows.

40. Ms Smith is entitled to challenge the APVO made by the primary judge by invoking this Court’s supervisory relief and thereby to test the limits of her rights of political expression as well as the true construction of the Act (and whether it can apply in circumstances such as arise in the present case). She has a substantial personal and political interest in this litigation and can be taken to appreciate the public significance of her arguments, having regard to her service of s 78B notices and the intervention of the Attorney General of NSW. In so far as the online evidence reveals, she has significant support from a number of online followers. Both the magistrate and the primary judge were satisfied that Ms Smith had chosen Ms Blanch as a “case study due to the ideological issues that remain important to her”: J [80]. Thus, whether Ms Smith wins or loses, she will have had a kind of victory in making her point. If she loses, she may well, having regard to the importance of the issue to her and her followers, want to take it further, either to seek a political solution or a further judicial resolution.

41. By contrast, Ms Blanch has invoked first the Local Court’s jurisdiction and then the District Court’s jurisdiction under the Act to obtain an APVO against Ms Smith due to her fears of personal harm, which are accepted to be reasonably based. She has no interest in the litigation other than her personal private interest. Neither her application nor her appeal to the District Court ought be regarded as closely analogous either to civil (or criminal) proceedings and appear to have been commenced and prosecuted for a purely protective purpose.

42. In John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512; [2005] NSWCA 101, Spigelman CJ (Mason P and Beazley JA agreeing) said, referring to the repealed Pt 15A of the Crimes Act1900 (NSW):

[20]    The legislative scheme for apprehended violence orders serves a range of purposes which are quite distinct from the traditional criminal or quasi-criminal jurisdiction of the Local Court. The legislative scheme is directed to the protection of the community in a direct and immediate sense, rather than through mechanisms such as deterrence. Individuals can obtain protection against actual or threatened acts of personal violence, stalking intimidation and harassment. Apprehended Violence Orders constitute the primary means in this State of asserting the fundamental right to freedom from fear. The objects served by such orders are quite distinct from those that are served by civil adversarial proceedings or proceedings in which an arm of the State seeks to enforce the criminal law.

43. In Rock v Henderson; Rock v Henderson (No 2) [2025] NSWCA 47 (Rock), at [147], this Court (Kirk JA, myself and Ball JA) identified the objects of the Act, which include the following:

(1)   to protect the victims of, relevantly, domestic abuse, who are accepted to be generally women and who will, therefore, be those in need of protection and who therefore are more likely to be those for whose protection AVOs are made under the Act;

(2)   to ensure that access to courts is as safe, speedy, inexpensive and simple as is consistent with justice; and

(3)   the legislative intention that a person in need of protection who is unsuccessful in applying for an order under the Act will not be subject to an adverse costs order except where the application is vexatious, whereas costs may be awarded against a defendant or an applicant who is a police officer.

44. Also in Rock, this Court held that the tort of abuse of process did not apply to proceedings under the Act. While significantly different considerations apply to the tort of abuse of process from those which apply to persons seeking relief under this Court’s supervisory jurisdiction under s 69, the following extract from our reasons is apposite to the proceedings in this Court, particularly having regard to the constitutional element raised by Ms Blanch:

[T]he complainant would be subjected to relatively complex, expensive litigation which would … pose the threat that the complainant would be made liable for any costs expended by the other party. Such litigation has the potential to impose a ruinous financial burden through costs …. There would be a real risk that those in need of protection would be deterred from seeking it because of fear of reprisal ...

45. In Rock, the fear of reprisal derived from the fear of satellite litigation (proceedings for damages for the tort of abuse of process). In the present case, Ms Blanch’s fear is derived from her exposure to an adverse costs order (it was not suggested that the proceedings in this Court are brought by way of reprisal against Ms Blanch). This is not the occasion to dilate on the merits or otherwise of Ms Smith’s application in this Court, much less to opine on how well founded Ms Blanch’s fear of an adverse costs order is since these matters arise in the substantive proceedings in this Court.

46. The disparity between the interest Ms Smith has in ventilating, and seeking the limits of, her political rights on the one hand and Ms Blanch’s interest in retaining the protection of the APVO on the other is a weighty consideration in favour of making the order.

47. As referred to above, Ms Blanch has made it clear that if no order is made capping her liability for costs at nil (subject to UCPR, r 42.4(2)), she no longer wishes to participate in the proceedings in this Court. This will leave the Court without a contradictor for that part of the challenge to the APVO which does not rest on the constitutional challenge (it can be expected that the Attorney General will perform that role in respect of the constitutional challenge, as occurred in the Court below). It may be that, in that event, the Court would appoint a legal representative (possibly Inner City Legal Centre) to appear on behalf of Ms Blanch on the basis of an undertaking from Ms Smith not to seek costs against Ms Blanch. As the hearing is imminent, I regarded it as preferable to make an order under UCPR, r 42.4(1), which would have the effect of retaining Ms Blanch as an active party to the proceedings. Through her legal representatives, the Court will thereby have a contradictor to all matters raised by Ms Smith. I regarded this matter as another very weighty consideration in favour of making the order.

48. I considered that the matters I have referred to above, which I have weighed in the exercise of my discretion, favoured the making of an order capping Ms Blanch’s liability for Ms Smith’s costs at nil, subject to UCPR, r 42.4(2).

Orders

49. For the reasons given above, I made the following orders on 2 June 2025:

1. Order pursuant to s 7(a) and (c) of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act) and upon the grounds that:

1. the order is necessary to protect prejudice to the proper administration of justice (s 8(1)(a) of the Act); and/or

2. the order is necessary to protect the safety of Stephanie Blanch (s 8(1)(c) of the Act).

there be no publication or disclosure of information that identifies or tends to identity the employment, occupation, residential address or financial position of Stephanie Blanch.

2. Order, on the same basis as order (1) that there be no publication, other than to the parties’ legal advisers, of the following parts of the affidavit of Stephanie Blanch affirmed 29 May 2025:

(a)   her address;

(b)   her occupation;

(c)   paragraph 11 except for the first five words;

(d)   all of paragraph 13;

(e)   all of paragraph 15; and

(f)   Annexures A and B.

3. Order, pursuant to s 12 of the Act that orders (1) and (2) apply for a period of 2 years from the date of these orders and throughout the Commonwealth of Australia.

4. Grant leave to the first respondent to amend her notice of motion filed 19 May 2025 (the motion) by:

1. substituting “16 May 2025” with “29 May 2025” in prayer 2; and

2. substituting “s 8(1)(a), (c) and (d)” with “s 8(1)(a) and (c).

5. Refuse the applicant’s (the respondent to the motion) application for an adjournment in respect of prayer 3 of the motion filed 19 May 2025.

6. Specify, pursuant to r 42.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), and subject to r 42.4(2) of the UCPR, that the maximum costs that may be recovered by the applicant, Kirralee Smith, from the respondent, Stephanie Blanch, is nil.

7. Extend the time within which the applicant is file and serve any submissions in reply, as set out in order 4 of the orders dated 22 April 2025, to 10 June 2025.

8. Make no order as to the costs of the motion.

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Decision last updated: 05 June 2025