Smith v Blanch

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.