Smith v Blanch; Smith v Dennis [2026] NSWSC 879 | Case summary | Zoe

NSWNSWSC

Smith v Blanch; Smith v Dennis

[2026] NSWSC 879

Supreme Court of NSW|2026-07-24|Before: Rigg J

View on NSW Caselaw

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2026-07-24

Before

Rigg J

Catchwords

APPEALS – appeal from Local Court as of right on questions of law, and by leave on questions of mixed fact and law, under ss 39, 40 of the Local Court Act 2007 (NSW) – where grounds involve only assertions of factual error, or contend errors “in law and fact” in an ultimate conclusion with multiple discrete errors of law, and of fact, alleged by way of submission – questions of law should be pursued independently ANTI-DISCRIMINATION LAW – constitutionality of ss 38R, 38S, prohibiting transgender vilification, and s 108, providing relief therefor, of the Anti-Discrimination Act 1997 (NSW) – whether Sunol v Collier (No 2) [2012] NSWCA 44; 289 ALR 128, upholding constitutional validity of equivalent provision on homosexual vilification, is binding – whether error in enjoinder, public notice and damages for default ordered under s 108

Catchwords

APPEALS – appeal from Local Court as of right on questions of law, and by leave on questions of mixed fact and law, under ss 39, 40 of the Local Court Act 2007 (NSW) – where grounds involve only assertions of factual error, or contend errors “in law and fact” in an ultimate conclusion with multiple discrete errors of law, and of fact, alleged by way of submission – questions of law should be pursued independently ANTI-DISCRIMINATION LAW – constitutionality of ss 38R, 38S, prohibiting transgender vilification, and s 108, providing relief therefor, of the Anti-Discrimination Act 1997 (NSW) – whether Sunol v Collier (No 2) [2012] NSWCA 44; 289 ALR 128, upholding constitutional validity of equivalent provision on homosexual vilification, is binding – whether error in enjoinder, public notice and damages for default ordered under s 108

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Smith v Blanch; Smith v Dennis [2026] NSWSC 879

Hearing dates: 25 and 26 May 2026

Date of orders: 24 July 2026

Decision date: 24 July 2026

Jurisdiction: Common Law

Before: Rigg J

Decision: See [261]-[262]. Appeal upheld on limited grounds regarding relief ordered in the Local Court. Plaintiffs’ summonses otherwise dismissed

Catchwords: APPEALS – appeal from Local Court as of right on questions of law, and by leave on questions of mixed fact and law, under ss 39, 40 of the Local Court Act 2007 (NSW) – where grounds involve only assertions of factual error, or contend errors “in law and fact” in an ultimate conclusion with multiple discrete errors of law, and of fact, alleged by way of submission – questions of law should be pursued independently
ANTI-DISCRIMINATION LAW – constitutionality of ss 38R, 38S, prohibiting transgender vilification, and s 108, providing relief therefor, of the Anti-Discrimination Act 1997 (NSW) – whether Sunol v Collier (No 2) [2012] NSWCA 44; 289 ALR 128, upholding constitutional validity of equivalent provision on homosexual vilification, is binding – whether error in enjoinder, public notice and damages for default ordered under s 108

Section 104 of the Act makes clear that the onus of proving the exception in s 38S(2) is on the party claiming its operation. A definition of public act is given in s 38R.
Stephanie Blanch is a transgender woman who has played in a women’s football team since 2016. Riley Dennis is a transgender woman who has played in a women’s football team since 2022. They were each a plaintiff in Local Court proceedings seeking redress for alleged vilification by the current plaintiffs in the Blanch proceedings, and the first plaintiff only in the Dennis proceedings, which was contended to be unlawful by virtue of the above legislative provision. Ms Blanch and Ms Dennis are the current first defendants. The current first plaintiff is Kirralie Smith, who is a director and spokesperson of the second plaintiff, Binary Australia, later known as Gender Awareness Australia Ltd trading as Binary Australia (“Binary”). The NSW Attorney General intervened in the proceedings in the Local Court and is now the second defendant.
On 20 January 2023 the first plaintiff wrote an article concerning Ms Blanch and including a photograph of her (“the January article”) which was posted by the second plaintiff on its website with other communications by the second plaintiff. Between 20 January and 17 February 2023 the first plaintiff posted to Facebook and Twitter on numerous occasions regarding Ms Blanch, not naming her but including photographs of her and naming her football club, and on a number of these occasions including a link to the January article. Between 29 and 31 March 2023 the first plaintiff posted (to Facebook and Twitter) on a number of occasions regarding Ms Dennis, including naming her by nominating where her name fell on a reproduced leaderboard of sporting results. The posts regarding Ms Blanch and Ms Dennis are referred to as the social media posts.
Both proceedings commenced initially in the NSW Civil and Administrative Tribunal (“NCAT”), with complaints received by the Anti-Discrimination Board having been referred there pursuant to s 93C(a) of the Act. On 13 November 2023 the plaintiffs filed a notice of a constitutional matter under s 78B of the Judiciary Act 1903 (Cth) in relation to the Blanch proceedings, and the first plaintiff filed the same on 20 December 2023 in relation to the Dennis proceedings. On 22 January 2024 and 9 April 2024 respectively NCAT declined to hear the applications in the Blanch and Dennis proceedings, as they involved an exercise of federal jurisdiction: Blanch v Smith [2024] NSWCATAD 20; Dennis v Smith [2024] NSWCATAD 91. Proceedings in each were then instituted in the Local Court pursuant to s 34B of the Civil and Administrative Tribunal Act 2013 (NSW), by summons dated 23 February 2024 in the case of Ms Blanch, and summons of 14 June 2024 in that of Ms Dennis. The primary judge, Deputy Chief Judge Freund, heard the two proceedings on 7 February 2025.
On 26 August 2025 in separate judgments as to liability, the primary judge found that the plaintiffs had unlawfully vilified Ms Blanch in the January article and social media posts relating to her, and had unlawfully vilified by Ms Dennis in the social media posts relating to her. I will refer to the liability judgment in Ms Blanch’s proceedings as BLJ and that in Ms Dennis’ proceedings as DLJ. The relevant public acts were found to have had the capacity to incite hatred towards, serious contempt for, or severe ridicule of each on the ground that she is a transgender person.
Her Honour held in both judgments that it is uncontroversial that debate and discussion about whether transgender women should play in women’s sport falls within the exception of s 38S(2)(c) of the Act, and accepted that it was and is the aim of the plaintiffs to generate discussion in order to change the policies of Football NSW and Football Australia. Her Honour further accepted that the acts of the plaintiffs bore a rational relationship to the protected activity, but were disproportionate to what was necessary and accordingly not reasonable, and lacked good faith.
The primary judge also found that ss 38R and 38S of the Act are not constitutionally invalid and did not make the declarations of constitutional invalidity in relation to s 38S sought by the plaintiffs.
Although s 38S of the Act describes transgender vilification as unlawful, it does not attract criminal sanctions. A complaint proved in NCAT or a Court gives rise to the power to make orders under s 108 of the Act including power to award damages. Section 108 of the Act relevantly provides as follows:

In the event that the Defendant does not comply with orders (1) – (3) above, the Defendant is to pay the Plaintiff $40,000 by way of non-compliance.
Unless otherwise agreed by the parties, I order the Defendants pay the Plaintiff the ordinary costs of the proceedings.
Annexure A to each damages judgment was described in the judgment as a correction notice. That annexed to BDJ is similar to Annexure A to this judgment, except that it named Ms Blanch as the person who had brought the Local Court proceedings, and named her in the first paragraph as the person vilified, rather than referring to “a soccer player”. An equivalent notice relating to Ms Dennis was annexed to DDJ.
By one summons in relation to Ms Blanch (“the Blanch summons”) and one in relation to Ms Dennis (“the Dennis summons”) the plaintiffs raise a number of grounds of appeal. The two summonses have significant overlap and are conveniently dealt with together. The following orders are sought in relation to each matter:
The Plaintiff be granted an extension of time, pursuant to r 50.12(1)(c) of the Uniform Civil Procedure Rules 2005 (NSW), to appeal the judgment of the Local Court of NSW dated 26 August 2025;
Leave be granted to appeal on matters of fact and law from the decisions below.
Appeal allowed.
Judgment of the court below be set aside.
A declaration that ss 38R, 38S and 108 of the Anti-Discrimination Act 1977 (NSW) are unconstitutional and ultra vires the Commonwealth Constitution’s implied freedom of political communication.
Costs.
The extension of time was sought because the summonses seeking leave to appeal were filed outside the time frame of 28 days from the material date, required by r 50.12(1)(a) and (b) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). The liability judgments in each case were handed down on 26 August 2025, and the summonses were filed on 23 December 2025, being approximately three months out of time.
In relation to BDJ, on 10 April 2026 Deputy Chief Judge Freund corrected a slip in relation to the amount of damages referred to in a paragraph of the judgment which did not accord with the order made. As a result a sub-ground of appeal in the Blanch summons and a notice of contention filed for Ms Blanch fell away from requiring determination.
On 31 December 2025 Faulkner J ordered, relevantly to the Blanch summons, that orders 1 and 4 and, to the extent that it applies to orders 1 and 4, order 5 of the Local Court made on 5 December 2025 be stayed: Smith v Blanch; Smith v Dennis [2025] NSWSC 1614. His Honour noted the undertaking by the first plaintiff that, for the duration of these proceedings, they will refrain from making any further posts or commentary that identify the first defendant by name or by any other personal information; and refrain from posting or re-sharing any images of the first defendant. In relation to the Dennis summons, his Honour ordered that orders 1 and 3 and, to the extent that it applies to orders 1 and 3, order 4 of the Local Court made on 5 December 2025 be stayed. Undertakings equivalent to those given in relation to the Blanch summons were noted.
Division 4 of Part 3 of the Local Court Act 2007 (NSW) provides for appeals from decisions of that Court. Sections 39 and 40 are in the following terms:

There is no provision for an appeal based on asserted factual error. This is a fundamental point. The plaintiffs’ constitutional grounds of appeal against liability are pursued under s 39 of the Act and do not require leave. With one possible exception, the remainder of the grounds on liability are framed as applications under s 40. The damages grounds are mixed. As will be seen, the plaintiffs’ arguments on the grounds framed as applications for leave under s 40 of the Local Court Act are to a very significant extent based on assertions of factual error.
The plaintiffs submit that if leave is granted on those grounds that raise questions of mixed fact and law, the matter is to proceed by way of rehearing: r 50.16 of the UCPR and s 75A of the Supreme Court Act 1970 (NSW). It was submitted that then the powers of the Court on rehearing are the same as those of the primary judge, including in respect of making findings of fact and drawing inferences, referring to the judgment of Adamson JA in J and E Vella Pty Ltd v Hobson [2023] NSWCA 234 at [117]. This was an appeal to the Court of Appeal from a decision of a judge of the Equity Division of this Court, on an asserted error of fact. The principal issue was whether the primary judge had erred in her Honour’s findings as to what occurred at a particular meeting, and argued by reference to asserted error in relation to four intermediate facts.
Adamson JA, in dissent as to the outcome in that case, was articulating in the paragraph relied upon, in uncontroversial terms, the obligations of an appeal court on a rehearing where factual error is asserted. This has no relevance to the situation now before the Court where the plaintiffs have no right of appeal, nor avenue for leave to appeal, from asserted factual error in the judgments of the Local Court judge. Section 75A(4) of the Supreme Court Act states that “This section has effect subject to any Act.” Importantly that includes the limitation in the Local Court Act to appeals on questions of law (which may extend, with leave, to grounds involving a question of mixed law and fact).
Section 41 of the Act provides for the determination by the Supreme Court of an appeal under s 39(1) or, where leave has been granted, s 40. It states:

In the plaintiffs’ primary written submissions at paragraph 222 the leave required by s 40 of the Local Court Act was submitted to be warranted because the proceedings “involve matters of principle and questions of general public importance, specifically as they relate to the operation of the Act, and its constitutionality.” This does not address why leave should be granted in relation to the grounds on which it is sought. Leave is not required or sought in relation to the constitutional grounds. Had there been any important legal issue regarding the operation of the Act (such as the example described below at [28] of whether intention to incite is required to prove unlawful vilification) leave would not have been required either.
It is further submitted that “Moreover, there are several elements of the judgments of the Local Court (particularly in respect of relief), which we submit exemplify injustice, including the quantum of damages, and its doubling upon instances of default.” Again, however, it is noted that ground 12 which addresses damages for default is pursued as of right under s 39 of the Local Court Act.
In written submissions in reply it was submitted that all the paragraphs prior to paragraph 222 of the primary submissions had sufficiently elucidated issues of principle and of general public importance so as to not require specific repetition. It was submitted, regarding injustice, that the primary submissions had clearly set out how the primary judge erred as a matter of mixed fact and law in her Honour’s award of damages (to wit, that the quantification did not accord with the compensation principle). As will be seen, there are issues related to the relief awarded which warrant intervention on those grounds pursued as of right and one pursued under s 40 of the Local Court Act. However there is nothing that has been put forward which would justify the grant of leave in relation to the grounds of appeal relating to liability or damages otherwise that are said to involve questions of mixed fact and law.
A ground does not involve a question of mixed law and fact by contending that the Local Court erred “in law and fact” in an ultimate conclusion, with multiple errors of law and multiple errors of fact relevant to that conclusion alleged by way of submission. Here, for example, ground 1 in the Blanch summons asserts that her Honour “erred in fact and/or law” in finding that the January article published by the plaintiffs met the definition of incitement of hatred towards, serious contempt for, or severe ridicule of, the first defendant, and leave pursuant to s 40 is sought in relation to that ground. The submissions advanced in support of that ground assert multiple legal errors, and multiple factual errors.
Pure questions of law should be pursued as of right under s 39 of the Act. They do not belong in a potpourri of submissions traversing the whole case, advanced in furtherance of a ground which is framed, seeking leave under s 40, as the Local Court having erred in a significant or ultimate determination. The consequence of including questions of law which could have been raised as independent grounds pursued as of right, as part of an application for leave to pursue a ground said to raise a question of mixed law and fact, could, if acceded to, obviate what would be the result of success on the point as a s 39 ground (remittal to the Local Court), by seeking new findings in this Court. Such an approach should not be countenanced, and in my view weighs strongly against granting leave in relation to a ground that had been argued in that way.
A stark example is the contention which in filed written submission was limited to the social media posts, but during oral submissions was extended to apply to ground 1 of the Blanch summons (in respect of the January article), contending that the primary judge erred in not requiring proof of an intention to incite before the public acts could be found to amount to unlawful vilification. Whether proof of an intention to incite a requisite emotion is required for conduct to be unlawful under s 38S is clearly a question of law which could be argued in this Court as of right under s 39 of the Local Court Act.
In Rose v Tunstall [2018] NSWCA 241 Payne JA (Basten JA and Simpson AJA agreeing) held at [32] that demonstration of error under s 39 of the Local Court Act does not, by reference to s 75A of the Supreme Court Act, empower the Court to make factual findings. In World Avenue Pty Ltd v Kenichiro Tsunashima [2013] NSWSC 502 Harrison J described at [29] the limitations on fact finding even where a question of mixed law and fact is pursued as follows:

As will become apparent, I have found there to be considerable force in the submission made by Mr Gregory, appearing for the first defendants, that the plaintiffs’ applications for leave were based mostly on asserted errors of fact, and that the case was very difficult to respond to given the variations between the grounds, written submissions and oral submissions. It was submitted (in response to a question from me) that this lack of clarity was relevant to whether leave should be granted.
An additional factor relevant in these proceedings to whether leave should be granted is the significant amount of time which has elapsed since the public acts of the plaintiffs regarding the first defendants. The proceedings were commenced over three years ago. Although the plaintiffs seek orders that the judgments of the Local Court be set aside, there are a number of issues which, if the plaintiffs are correct regarding error, would require remitting the matters to the Local Court for factual determination.
In the context of appeals permitted on grounds involving a question of law, the existence of the question of law is not merely a qualifying condition to the statutory right of appeal, but also the subject matter of the appeal: Osland v Secretary to the Department of Justice (No 2) (2010) 241 CLR 320; [2010] HCA 24 at [21] (French CJ, Gummow and Bell JJ). The requirement for identification of a question of mixed law and fact in relation to grounds pursued under s 40 of the Local Court Act may have more flexibility, but identification of the relevant question is still important in not only founding jurisdiction but confining the issue for determination, and identifying whether demonstration of error results without more in the decision of the Local Court being set aside or the remittal of the proceedings to the Local Court. Many of the plaintiffs’ grounds have been argued on the premise that if there is a legal issue referred to in the submissions advanced in support of them then I will grant leave and then decide the whole case for myself on the basis of the evidence in the Local Court. This is contrary to authority.
The plaintiffs also apply pursuant to r 50.12(1)(c) of the UCPR to appeal from the BLJ and DLJ out of time. Four factors of general relevance arise in considering the application for an extension of time: the length of the delay, the reason for the delay, whether the applicant has a fairly arguable case, and the extent of any prejudice suffered by the respondent to the application.
I have determined that, to the extent it may be required, leave should be granted for an extension of time. The circumstances were unusual in that when the orders were made and reasons given on 26 August 2025 there remained a prospect that the Local Court would decline to take any further action in the matter, despite finding the complaints substantiated: s 108(2)(g), or would award nominal damages only. In either case the plaintiffs may well have made the decision to not pursue an appeal. Although the evidence and submissions for the plaintiffs framed the issue somewhat differently (in effect as not understanding there to have been any order affecting the plaintiffs’ rights as at 26 August 2025), I am satisfied that the staged determination of the outcome of the proceedings constitutes a sufficient explanation for the delay. It is not extremely long. The constitutional grounds potentially raise an important matter of principle. The merit of the balance of the grounds regarding liability is conveniently addressed by reference to whether leave should be granted pursuant to s 40 of the Local Court Act. The plaintiffs are pursuing grounds of appeal against damages where an extension of time is not required, some as of right. The first defendants were vindicated by the liability judgments but the proceedings were not finalised from their perspective either until 5 December 2025.
A decision to which repeated reference will be made is the decision of the Court of Appeal in Sunol v Collier (No 2) [2012] NSWCA 44; 289 ALR 128 (“Sunol”). Grounds 7 and 8 challenge the constitutional validity of ss 38R and 38S of the Act and, indirectly, s 108. Sunol was concerned with a challenge to the constitutional validity of s 49ZT of the Act, a provision equivalent to s 38S but addressing homosexual vilification. The definition of “public act” in s 38R is relevantly the same as that provided by s 49ZS, and the relief available was also that provided for by s 108. The Court of Appeal unanimously found the legislation to be constitutionally valid. As outlined below at [143], a fundamental step in that process was the construction of the legislation, which is why the decision has application in relation to the operation of the equivalent provisions relevant to these proceedings.
I propose to deal firstly with the grounds of appeal which do not raise constitutional issues, then those that do, and finally deal with the grounds relevant to relief.

The plaintiffs argued that Bathurst CJ had left the issue open, and that the decision of Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 was distinguishable. The plaintiffs relied on no authority in support (directly or indirectly) of their contention that intention to incite must be proved, and advanced no consideration of the consistent line of authority Bathurst CJ had referred to, the authority her Honour relied upon, nor the continued application of an objective test since Sunol was decided. There was no meaningful articulation of any principle of statutory construction, including regarding requisite mental states for unlawful acts.
It was submitted for the plaintiffs that s 38S(2)(c) demonstrated that Parliament intended the section to not apply to journalists or advocates of policy change, requiring the Court to look at intentions. The submission did not grapple with why the exception would be needed if intention to incite was required to make out the terms of s 38S(1), and the problem of the onus. When the prospect was raised that the exception in fact indicated against the requirement in s 38S(1) for proof of intention to incite, the response was “…whilst I don’t make the concession, I make this submission that it is open to the Court to find that intention is not a key ingredient. I accept that. We say the better view is that intention is a required element.”
I take it to have been presumed that I would go on to find that there was no intention to incite in this case. Written submissions referred to one aspect of the first plaintiff’s evidence. During the course of the hearing two other answers were referred to, in which the first plaintiff described herself as a political advocate addressing what she regarded as a terrible policy of who is allowed to play in female football teams, with the submission then orally advanced that “Nothing that she has done was an act that targeted, intentionally targeted, a particular person or a class of persons for any reason other than policy discussion or an attempt to cause policy change.” This left unaddressed the reasons given by the primary judge for finding that the article focused on Ms Blanch, and sought to evoke fear of her playing in a women’s football team, and the more fundamental problem as to why I would engage in making findings of fact.
Had there been a serious issue to be argued regarding whether intention to incite is required in proof of unlawful vilification, this should have been pursued as a standalone ground on a question of law, and the consequence of success would have been remittal to the Local Court to determine whether this had been proved in this case.
The third possible assertion of legal error seems to be that the act (of publishing the January article) needs to be taken as a whole and in context “For the conjunctive between the ‘encouragement’ (incitement) and the desired state of emotion (hatred, serious contempt or severe ridicule) to be established”. It was submitted that this conjunctive was not established. This ultimately was an assertion of error of fact, referred to further below. Her Honour did not make a finding that the article did not need to be taken as a whole, albeit it was not found that the whole of the article vilified Ms Blanch. There was also consideration given by her Honour to the relevant context, although considering whether the January article individually was unlawful.
In the plaintiffs’ written submissions in reply it was contended, of the finding that the plaintiffs had sought in the January article to evoke fear in the audience, that the article had been read selectively by the primary judge, thereby erring in her Honour’s application of the test in Sunol (per Allsop P at [61] regarding the “whole context of the public act” to be considered) as a matter of mixed fact and law. Reference was also made to Allsop P’s judgment at [62] requiring “the act to be assessed by reference to the context in which it takes place, including the audience or likely audience”. The issue of the audience is dealt with further below, as is the plaintiffs’ submission as to alternative factual inferences that should be drawn from the article. There is no suggestion that her Honour did not have regard to the whole article. There was no requirement that the whole article vilify Ms Blanch.
In oral submissions when it was pointed out that the plaintiffs had not grappled (in written or oral submissions) with her Honour’s finding that the January article sought to evoke fear in the reader regarding the fact that Ms Blanch was playing in a women’s sports team, it was submitted that such conclusion simply cannot be reached. It was conceded that there was no submission that this (or any other) factual finding was not open to her Honour, and there were no further submissions advanced on this issue.
Fourthly, there are hints of a complaint of inadequate reasons in the plaintiffs’ submissions (at paragraphs 69 and 78) in support of ground 1, such as that her Honour’s reasoning “failed to establish” how the article constituted relevant incitement. However it was confirmed at the hearing that the plaintiffs were not pursuing a ground of appeal relying on inadequacy of reasons constituting legal error.
Fifthly, her Honour is said to have failed to apply the “ordinary person” standard: at paragraph 70 of the plaintiffs’ written submissions. I accept that a misapplication of or failure to apply a correctly stated legal principle may involve a question of mixed law and fact: R v PL [2009] NSWCCA 256; (2009) 199 A Crim R 199 at [26]. The plaintiffs’ written submissions cite the judgment of Bathurst CJ in Sunol at [32] and [34], in which his Honour preferred the requirement to consider the effect of the words or conduct by reference to an ordinary member of the class to whom the public act is directed. The plaintiffs’ submissions continued at paragraphs 72-73:

The plaintiffs do not contend that this finding was not open on the evidence, and have not identified any error in the way that her Honour reached it. The first ground of appeal in the Blanch Summons, directed to [61]-[65] of the liability judgment, completely fails to address these other parts of the judgment that address the issue of identifying the nature of the relevant audience.
Her Honour thereafter set out in detail the aspects of the January article she regarded as salient to the issue of meeting the statutory test, concluding that she was satisfied on balance that the January article had the capacity to encourage or spur others to harbour emotions of hatred towards, severe contempt for and / or severe ridicule of Ms Blanch on the grounds she is transgender: BLJ [65]. The plaintiffs did not address how the primary judge made an error at BLJ [61]-[65], where her Honour set out in detail the facts on which she based her consideration that the article was particularly focused on Ms Blanch, why it sought to evoke fear, and why she considered the article had the capacity to encourage the relevant audience to harbour feelings of hatred towards, severe contempt for and / or severe ridicule of Ms Blanch.
The plaintiffs’ written submissions rather contended that a number of factual conclusions regarding the substance of the January article should be drawn, and that these make apparent that the Court erred in its finding on the “ordinary person” standard. This strikes as the nub of the error advanced under ground 1 for the plaintiffs. The factual findings urged are in essence:
The substance of the article is directed at the gender policies of the sports club and organisations involved;
The article recounts enquiries made to club representatives about gender policy;
The first plaintiff’s repeated statement of opposition to policy was done in a political manner;
The first defendant did not name Ms Blanch and referred to her attendance in the team only vaguely;
There is no call to action, urging, rousing, command, request, proposition or encouragement, for the community to take any particular action or feel any way in respect of Ms Blanch; and
In cross-examination Ms Smith claimed that she was motivated by Ms Blanch taking advantage of a bad policy.
Similarly the plaintiffs’ written submissions in reply, in response to the first defendant’s written submission which pointed out the plaintiffs had not addressed the primary judge’s finding that the article sought to evoke fear of Ms Blanch playing in a female football team, advanced numerous factual findings that the Court should make if the January article is viewed as a whole including that it is written as a “journalist-style article”, reporting conversations with a representative of Football Australia and the alleged refusal of that representative to answer certain questions, and expressing additional opinions to those expressly referred to by the primary judge.
I would, if it were necessary to do so, reject a number of these submissions (such as the “political manner” of the article, references to Ms Blanch being “vague”, and there being no encouragement to the audience to feel any way in respect of Ms Blanch), or note their irrelevance to the issue of whether the article was capable of inciting the requisite emotions (such as whether there were some parts of the article that did not vilify Ms Blanch, and Ms Smith’s answers in cross-examination regarding her motivation). However it is not necessary to do so. These are simply questions of fact.
The ultimate submission thereafter advanced as to the conclusion reached upon those intermediary facts accordingly does not raise a question of mixed law and fact. It was expressed this way in the plaintiffs’ primary written submissions:

The asserted error regarding the “ordinary person” test was confirmed in the course of oral submissions to be the crux of the plaintiffs’ first ground. It was submitted that the plaintiffs did not know what test her Honour had applied. When the judgment of Bathurst CJ in Sunol at [34] was raised, and counsel for the plaintiffs was reminded that her Honour had quoted this very passage, the response was that quoting it and actually engaging with the process are two different things.
In oral submissions it was firstly said that her Honour had assumed that there is a class of people around the plaintiffs, and the difficulty was the failure to consider the ordinary person. Contrary to what came to be articulated as the plaintiffs’ primary submission, the requirement to assess the actual audience was at times acknowledged (as it had been in written submissions): “The test, we say, is not an ordinary person at large in the community – and, of course, I think Sunol is pretty clear on that – it is the ordinary person in the class of peoples that the particular public act was either conducted or the words said to.”
It was acknowledged on questioning that this was exactly the test her Honour said she was applying, but submitted that her Honour had wrongly assumed the particular characteristics of the class of people. When asked whether this was then an assertion of factual error, there was agreement, but also submission that there was an additional assertion of legal error in that her Honour was required to look at the ordinary person within that subset.
It was accepted firstly that the relevant audience was clearly people who are engaged with the issues advocated by the plaintiffs, but submitted that “But the people engaged in this area, the people engaged on these issues are wide and varied, not zealots who hate transgender people playing in women’s sport, they’re not limited to that category.” It was conceded that her Honour had not made such a finding. It was nonetheless contended that her Honour had not determined the correct subset.
A new argument was advanced orally on the first day of hearing, said to be relevant to the January article and the social media posts, acknowledged not to have been made in writing. This was that her Honour’s finding that “This audience is more likely than not to be aroused, stirred up or spurred on by the acts of the defendant” was in error because determining the audience was made up of those engaged with the issue of transgender women playing in women’s sports teams was too narrow a category or too narrow a segment and “This is a policy issue that engages the society at large.” It was submitted that therefore the audience that the Court was required to be concerned with is the absolute public at large, and the fallback point was that the audience was not entirely limited to the people who follow the plaintiffs’ social media accounts because there may be shares, reshares or news articles written about the plaintiffs’ posts. It was submitted “This is an article to the public at large”.
The oral submission made reference then to the judgment in Sunol of Allsop P at [61] quoted in the written submissions in reply as to the social media posts (see below at [101]). The plaintiffs seem to have thus introduced in relation to ground 1, during the course of oral submissions, a suggestion that the public at large should have been considered as the audience (contrary to the earlier acceptance of the reference by Bathurst CJ to an ordinary member of the class to whom the pubic act is directed). It was never made clear whether this was an asserted legal error (that is, that this paragraph of Allsop P’s judgment sets out the test correctly and Bathurst CJ’s does not) or whether this was a factual error (that the audience of the January article was in fact the public at large).
At one stage during the oral argument for the plaintiffs it was contended that people who are against transgender women playing in female sports are a much wider subset of society than people who have hate or can easily be incited on the topic, but counsel for the plaintiffs accepted that her Honour had not referred to any such audience. It was submitted (seemingly regarding the January article and the social media posts) that a subclass of zealots should not be assumed (accepting this had not been found) and there was no reason to limit the audience to a subset that is overly zealous when it comes to this topic.
At another stage during oral submissions for the plaintiffs, referring to paragraphs 29 and 30 of their reply submissions (relevant to the social media posts), reference was made to the ordinary reasonable person within the subset. It is not clear whether this was intended to pertain to ground 1 regarding the January article as well as the grounds relating to the social media posts.
Ultimately counsel for the plaintiffs accepted that her Honour had clearly indicated that it was the combination of the engagement and interest in the issue, and the following of it, with the content of the article and posts, that was relied upon to find the statutory test made out. It was not argued that on these facts as found the statutory test was not met or that it was not open to find that it was met.
A sixth possible legal error is asserted in the plaintiffs’ written submissions at paragraphs 79 to 86 where it is contended that her Honour failed to consider the plaintiffs’ argument as to “degree.” However there was not, and could not have been, any argument developed that there had been a denial of procedural fairness. Rather, in arguing this proposition, the plaintiffs’ written submissions set out part of the judgment of Bathurst CJ in Sunol at [28], that of Alsop P at [59]-[60] regarding the high value of freedom of expression warranting a conservative approach to the construction of s 49ZT, and Basten JA’s statement that “Mere insults, invective or abuse will not engage the prohibition.” However the primary judge set out all of this, and more, on the requirement for the public act to not only express the requisite emotion, but incite it, and the need for caution to not find mere insult unlawful vilification. The written and oral submissions refer to only part of what her Honour identified as problematic in the article, submitting that to the extent that these references were “insults” they did not contravene s 38S. There was no acknowledgment of the extensive recitation of the relevant law on this issue by her Honour, recognition that her Honour did not find “insults”, nor reference to the other parts of the article relied upon by her Honour as proving vilification.
As addressed to some extent above at [63], through the written submissions in support of ground, peppered with propositions of law, there was an ongoing submission advanced as to what the correct determination should have been. This was that the January article did not satisfy the test, including because a “contextual reading” of it with the oral evidence of Ms Smith evidence reveals that the encouragement was for the “ordinary person” in the audience to share her policy concern: at paragraphs 73-74 of the plaintiffs’ written submissions. At paragraphs 76-77, the plaintiffs submitted it was erroneous to find that the “ordinary person” would have been incited to hatred, severe ridicule or serious contempt of Ms Blanch, rather than roused to advocate for policy change in football, given the substance of the article, other matters set out in the article beyond those representations found to have vilified Ms Blanch, the political manner of exposition of the issue in the article, there being only vague references to Ms Blanch as male, no call to action against Ms Blanch being expressed in the article, and what Smith’s evidence showed about her motives. It was contended at paragraphs 83-86 of the plaintiffs’ written submissions that a number of the phrases were insults, rather than serious enough to attract the operation of the Act.
As indicated above, it was not argued that any intermediate or ultimate findings were not open to her Honour. It was not contended that on the facts as found by her Honour the statutory test was not met. There was one submission advanced in the plaintiffs’ written submissions in reply that the characterisation of the article as inciting hatred, severe ridicule or serious contempt is glaringly improbable and an unreasonable conclusion, citing Fox v Percy (2003) 214 CLR 118. This authority is not apposite to the nature of the application for leave made by the plaintiffs regarding ground 1 (nor any ground).
I accept the submission advanced for Ms Blanch regarding this ground that:

I am not of the view that ground 1 involves a question of mixed law and fact. If it does (such as the suggestion that her Honour misapplied the “ordinary person” test), it is not one warranting a grant of leave, in light of the lack of clarity or cogency in the ground and its articulation, the inclusion within it of questions of law which should have been argued as of right as standalone grounds which would have resulted if successful in remittal of the matter to the Local Court, the lack of any issue of principle or general importance otherwise, and the absence of clear injustice.
Erring further against the grant of leave is the significant time which has elapsed since the publishing of the article and the damage done to Ms Blanch, the reasonably small amount of damages awarded and the disproportion of this to the costs involved.
I do not accept the submission advanced for the plaintiffs that this last mentioned factor should be disregarded as the first defendants are represented on a pro bono basis. This is firstly because there is the prospect of payment of costs to those acting on a pro bono basis in some circumstances: where a pro bono lawyer has been appointed by the Court under the UCPR. Rule 7.4(1)-(2) of the UCPR provide that where a costs order has been made in favour of a litigant legally assisted under that scheme, the barrister or solicitor is entitled to recover that amount. During the course of the hearing however Mr Gregory indicated that a costs order was not sought on behalf of the first defendants because he and his instructing solicitor were acting on a pro bono basis. Even if the defendants’ counsel and solicitor are not to be paid, they have been required to perform a very large amount of work responding to this application for leave to appeal and the Court is greatly assisted by pro bono work of this kind. Further, the time of the Court and the costs incurred by the plaintiffs or extent of legal work undertaken for them is not proportionate to the amount of damages awarded.
Leave is refused in relation to ground 1.
The second ground of appeal in the Blanch summons is also submitted to be directed at the primary judge’s decision concerning the January article, and contends that:

At paragraphs 90 to 91 of the plaintiffs’ written submission there is criticism of the finding at BLJ [59] that Smith and Binary’s audience are “clearly people who are engaged with respect to the issues” followed immediately by a conclusion that “Therefore, I am satisfied that this audience is more than likely than not to be roused, stirred up or spurred on by the acts of the Defendant and/or Second Defendant”.
It was similarly submitted that at DLJ [48] her Honour stated that she is “satisfied that the audience of the Social Media Posts are people or organisations who are engaged with respect to the issue of transgender women playing on women’s sports teams” then immediately proceeded to conclude that “this audience is more likely than not to be roused stirred up or spurred on by the acts of the Defendant”.
It was submitted that in each instance her Honour thereby did not apply the “ordinary person” test or provide reasons as to how the audience was incited. Again, counsel for the plaintiffs made clear that legal error for inadequate reasons was not relied upon.
In the paragraphs of the DLJ and BLJ impugned by these submissions in support of these grounds (which are different paragraphs, in relation to the Dennis proceedings, from the paragraphs specified in ground 3), her Honour did not make findings regarding whether the relevant class of person would or could be incited to hatred, serious contempt for or severe ridicule of the plaintiffs. At the point of both judgments around these passages (BLJ [58]-[59], DLJ [46]-[48]) her Honour set out aspects of the evidence regarding the plaintiffs’ activities as political lobbyists and activists, and the methods of actively recruiting people to join their campaigns. No submission has been advanced as to why there was error in this approach. Her Honour was not making a finding as to whether the particular impugned acts of the plaintiffs did in fact (or have the capacity to) rouse, stir up or spur on the audience, or whether the class of persons were being incited to hatred, serious contempt or severe ridicule. Her Honour was only there stating that as an engaged audience on the issue of transgender women’s participation in women’s sport, the audience was one who was likely to be activated when sent public notices, newsletters or articles by the plaintiffs on that issue.
The written submissions in reply for the plaintiffs contended at paragraph 30 that each of the social media posts were made to the public at large (primarily on X / Twitter), not a limited list of supporters nor a small room of activists. Allsop P’s statement in Sunol at [61] (citations for the relevant authorities in his Honour’s judgment omitted) that “If the general public is being addressed, bearing in mind the approach conformable with Brown and Coco, the ordinary and reasonable members of the public may be appropriate to consider” was quoted. It was submitted that “They were not considered by the Local Court.” I have dealt with the prospect of the absolute public at large being the relevant audience in connection with ground 1, and do not propose to address this aspect of the plaintiffs’ argument again.
During oral submissions regarding the social media posts it was contended that “the ordinary person test (of a class), was not the test applied. And that’s the error.” Reliance was placed on the judgment of the Court of Appeal in Margan v Manias at [77]-[78] (referred to in part above at [96]) and it was submitted that even if the Court was against the plaintiffs’ contention that “the class of people is the public at large”, it is required to determine what the ordinary person in that particular subset would make of the impugned public acts (which the primary judge was submitted not to have done).
The test stated by Bathurst CJ in Sunol and the Court of Appeal in Margan v Manias at [77] (which the plaintiffs at times put forward as the correct test) is not an “ordinary person test” but “an ordinary member of the class to whom the public act is directed”, which the primary judge specifically referred to and addressed at DLJ [44]-[48] and at BLJ [56]-[59]. The plaintiffs’ submission that the Court did not apply an “ordinary person test” is thus inapt, as it does not correctly express the test the plaintiffs seem to be endorsing, and because her Honour clearly turned her mind to and applied the relevant test.
It was submitted for the plaintiffs that her Honour’s finding that the audience members were more than likely to be incited by the posts assumed incorrectly that such audience members are easily incited to emotions of vilification or are of a class of people who are easily aroused to anger. It was submitted that the negative responsive comments in evidence (posts by followers of the plaintiffs who were in fact incited to hatred towards, serious contempt for and severe ridicule of the first defendants) were not shown to be rationally connected with the impugned posts. It was submitted in the plaintiffs’ primary written submissions that the posts “need to be textually and contextually considered in an objective manner, when applying the ordinary person test that might apply to Smith’s nearly 38,000 followers on X (formerly Twitter).”
Part of the judgment in Harou-Sourdon v TCN Channel Nine Pty Ltd (1994) EOC 92-604 at 77,238 was then quoted in the plaintiffs’ written submissions, considering the “ordinary reasonable person”, which of course would be a more demanding test than that preferred by Bathurst CJ in Sunol and propounded by the plaintiffs in relation to ground 1 of the appeal and in part in relation to these two grounds, and as described by the Court of Appeal in Margan v Manias at [14]-[16] and [77], otherwise raised in support of these grounds by the plaintiffs. During the plaintiffs’ oral submissions this 1994 decision of the Equal Opportunity Tribunal was said to be instructive although not binding.
The written submissions for the plaintiffs culminated in a submission at paragraphs 102-103 that:

This is a straightforward assertion of factual error. The paragraphs which follow endeavour to develop the above claim, by reference to limited aspects of the evidence, with assertions that the primary judge “ought to have” made certain findings, such as that the plaintiff is in every post voicing a political opinion directed at the policy of Football Australia (a proposition that is not inconsistent with vilification).
The submission that her Honour failed to address the issue of how the posts could incite the audience to hatred, serious contempt or severe ridicule fails to acknowledge the relevant parts of the judgments where her Honour addressed this issue, including at BLJ [72]-[82] and at DLJ [33]-[55] and [59]-[60].
The plaintiffs’ written submission at paragraph 96 that the primary judge had assumed incorrectly that the plaintiffs’ audience was “easily incited to emotions equated with vilification” makes no reference to particular parts of the judgments where her Honour is alleged to have made this assumption. As noted above, her Honour’s findings at BLJ [59] and DLJ [48], were findings in relation to the identification of the particular ordinary member of the relevant class. It is only subsequently, in each of the BLJ and DLJ, after her Honour considered all of the factors relevant to assessing the social media posts, that her Honour found that an ordinary member of that class would have been aroused to a requisite emotion and that the social media posts met the criteria of vilification in s 38S(1) of the Act.
A specific complaint is made in furtherance of ground 3 in the Dennis summons that her Honour failed to consider whether a number of the posts identified Ms Dennis to the plaintiff’s audience. Again, this is a straightforward assertion of factual error. Nonetheless it can be immediately noted that the only example given was of social media posts on 27 March 2023, which do not refer to or mention any particular person. Her Honour’s judgment at DLJ [51] refers only to social media posts between 29 and 31 March 2023, and although the conclusion of this section at [55] refers to the social media posts set out at [4] (which had included posts from 27 March), that specific exemption of the social media posts of 27 March would suggest this was an oversight. This is confirmed by her Honour’s specific finding at DLJ [59], which was that each social media post between 29 and 31 March vilified Ms Dennis on the basis she was a transgender person. The order related only to social media posts between 29 and 31 March 2023. The 27 March 2023 posts were nonetheless relevant context, as the plaintiff submitted and acknowledged.
Although the written submission included a suggestion that her Honour failed to explain how Ms Blanch was identified, this submission was not developed. Unlike the complaint referred to above in Ms Dennis’ proceedings it was not particularised by reference to any social media post or evidence, and is not compatible with the evidence of the photographs of Ms Blanch and the naming of her football club.
Leave is refused in relation to ground 4 in the Blanch summons and ground 3 in the Dennis summons.
Ground 5 in the Blanch proceedings asserts:

Her Honour found (at BLJ [120] and DLJ [86]) that certain aspects of the January article and social media posts that had vilified the defendants, to illustrate the plaintiffs’ position as a “sticking point” (including but not limited to identifying the defendants), were disproportionate to what was necessary, and thus not reasonable. Her Honour clearly addressed the legal requirement as articulated in a number of authorities including Bathurst CJ’s judgment in Sunol, rather than finding only that things could have been done differently.
The third way in which her Honour was said to have erred was in failing to consider the motivations of the plaintiffs as subjective good faith, quoting aspects of the first plaintiff’s evidence as to her stated motivations. Her Honour referred to significant aspects of the first plaintiff’s evidence in both judgments, and it is not clear what is intended by quoting this and other aspects of her evidence in the submissions. As noted above, her Honour found in both matters that the plaintiffs’ acts were done with the aim of generating discussion in order to change policy.
In both judgments her Honour took into account Ms Smith’s own evidence, which her Honour described as “steadfast”, regarding the acts having been done in good faith with the aim of facilitating public debate and discourse on policy issues as a spokeswoman for Binary. It is not tenable to suggest that her Honour erred by failing to consider the plaintiffs’ motives.
There was a further submission in writing that the Court erred as to objective good faith by determining that the posts showed a disregard for the feelings of the defendants. At DLJ [91], after referring to aspects of Ms Smith’s evidence, her Honour held that Ms Smith acted with “careless disregard” with respect to the effect the social media posts would have on Ms Dennis, namely “the hurt that the Social Media Posts would have had on the Plaintiff”. Similar findings were made at BLJ [124] based on the evidence of Ms Smith in Ms Blanch’s proceedings.
The written submissions for the plaintiffs do not state how her Honour erred in considering as relevant to good faith the question of whether it mattered to the first plaintiff that her conduct might hurt Ms Blanch or Ms Dennis. There was no elaboration of any issue of principle contending that that this is not a relevant factor to be considered in determining whether a public act was done reasonably and in good faith.
The proposition developed at the hearing suggested that her Honour was in error to consider the subjective feelings of the defendants. Counsel for the plaintiffs ultimately agreed that this was not the point her Honour was considering; that it was instead Ms Smith’s evidence of not turning her mind to the issue of whether serious hurt would be likely caused. There was thereafter no submission developed that Ms Smith’s lack of regard for causing hurt to Ms Blanch or Ms Dennis was not relevant to whether she had established the exception in s 38S(2)(c).
I am not satisfied ground 6 in the summonses involves a question of mixed law and fact. If it does, it is not one that warrants the grant of leave in light of the principles apposite to the same that I have earlier identified.
Leave to appeal in relation to ground 6 in each summons is refused.

The same grounds are pursued in the Dennis summons, except the corresponding paragraph numbers are [102]-[108] and [112]-[130] respectively of DLJ. The first defendants adopted the submissions of the second defendant on the constitutional grounds.
The first matter to note is that her Honour did not make any determination the subject of ground 7 or 8 regarding s 108 of the Act. No constitutional challenge to s 108 of the Act was notified in either of the Judiciary Act notices given prior to her Honour’s liability judgments, the plaintiffs’ filed defences, or the plaintiffs’ written submissions in the Local Court. These all challenged only the constitutional validity of s 38S. The written submissions contained one sentence which referred to s 108 as part of the burden imposed by s 38S. The written submissions filed for the Attorney General in the Local Court however submitted that both ss 38R and 38S of the Act are constitutionally valid, and her Honour found in both matters that ss 38R and 38S are not constitutionally invalid.
The next matter to record is that there is no need to determine ground 7. Upholding it could not support the relief sought in this Court unless ground 8 is successful. For the reasons that follow, ground 8 cannot succeed. The standard of appellate review for the purposes of ground 8 is the correctness standard. It is in the circumstances of this case not necessary to canvas in any detail the reasoning of the primary judge in declining to declare ss 38R and 38S of the Act unconstitutional.
I am bound by the decision of the Court of Appeal in Sunol to conclude that ss 38R and 38S of the Act are not constitutionally invalid. Further, I do not regard there having been a serious issue raised regarding the constitutional validity of s 108 of the Act in this Court in respect of any matter that is before the Court for determination.
In the 2012 decision of Sunol the Court of Appeal considered the constitutional validity of s 49ZT of the Act. The Administrative Decisions Tribunal Appeal Panel filed a summons seeking the determination of a number of legal questions including, as described in the judgment of Bathurst CJ, “Whether s 49ZT of the Anti-Discrimination Act 1977 (NSW) should be read down so as not to infringe or be construed so as to conform with the constitutional implication of freedom of communication about government and political matters?”. Basten JA described the amended summons as seeking “A declaration that s 49ZT of the Anti-Discrimination Act 1977 (NSW) is invalid.”
The appellant in Sunol submitted that unless read down s 49ZT is a law which infringes the implied freedom of communication about governmental or political matters having regard to the test stated in Lange v Australian Broadcasting Commission (1997) 189 CLR 520; [1997] HCA 25 (“Lange”) at 567 as modified in Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 (“Coleman v Power”).
The Court unanimously held that s 49ZT was not invalid.
Section 49ZT of the Act makes vilification on the ground of homosexuality unlawful. It is in relevantly identical terms to s 38S, namely “(1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.” There is an exception equivalent to s 38S(2) in s 49ZT(2). The same relief provisions in s 108 of the Act are available in the event of conduct amounting to unlawful vilification being proved.
Bathurst CJ and Allsop P, consistently with a concession made on behalf of the Attorney General during the course of oral submissions, accepted that the law effectively burdened the freedom of communication about government and political matters. Their Honours accordingly addressed the second question posed by the High Court in Lange at 567-568, as modified in Coleman v Power at [93]-[96], [196] and [211], to the following effect “… is the law reasonably appropriate and adapted to serve a legitimate end [in a manner] which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedures prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people”. Bathurst CJ referred at [44] to the power available pursuant to s 108 of the Act in determining the existence of an effective burden and had also referred to the power in s 108 at [12].
The first step required being the construction of s 49ZT, Bathurst CJ undertook this task in a way which has been partially referred to already in relation to the non-constitutional liability grounds. At the end of a detailed analysis, his Honour set out a concluding paragraph on construction at [41] as follows:

The submission for the plaintiffs is that I am not bound by Sunol as the issue of proportionality is now to be ascertained by the structured proportionality analysis, a three-part test of suitability, necessity and adequacy, established by the High Court in McCloy v New South Wales (2015) 257 CLR 178; [2015] HCA 34 (“McCloy”) at 193-195 and 217. The argument advanced was that because Sunol was decided prior to McCloy, it applied the test from Lange being whether the law is reasonably appropriate and adapted to achieving that legitimate purpose, which was submitted to have been “overtaken” by the structured proportionality test in McCloy. Given the change in the approach of the High Court, the plaintiffs advanced the submission that Sunol is not binding.
In written reply to the second defendant’s submissions on this point, the plaintiffs accepted the High Court has recently indicated the McCloy test can be flexibly applied, but submitted that it was still held to be the modern test, and a different outcome may be produced under it. Additionally the plaintiffs noted there was limited reference to s 108 in Sunol, except by Bathurst CJ at [44] in determining the potential liability for damages and injunctions arising by virtue of s 108 could effectively burden communication, although its proportionality was not considered.
As submitted on behalf of the Attorney General, structured proportionality is a tool for analysing whether a law is reasonably appropriate and adapted to the achievement of a legitimate purpose that is compatible with our system of representative and responsible government, and that is the very question which was considered by all members of the Court in Sunol.
This proposition can be seen as confirmed in the recent decision of the Court of Appeal (Kirk, Stern and McHugh JJA) in Smith v Blanch (2025) 118 NSWLR 70; [2025] NSWCA 188, in which the constitutional validity of ss 7(1)(b), 19 and 35 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), by which an Apprehended Personal Violence Order (“APVO”) was made against Ms Smith for the protection of Ms Blanch was upheld.
At [136]-[139] the Court described the relevant issues this way:

The manner in which the plaintiffs argue the constitutionality point is relevant to my determination that I am bound by Sunol, and that there is no other reason for determining that s 108 of the Act is not constitutionally valid. There are three features of the plaintiffs’ case to consider.
Firstly, although the plaintiffs contest the constitutional validity of s 38R, and submit that the equivalent definition of “public act” in s 49ZS was not directly challenged in Sunol, the wide definition of public acts in s 49ZS of the Act was squarely taken into account in Sunol in determining that s 49ZT did not impermissibly burden the implied freedom. It was an essential part of the scheme that was addressed by the Court. Furthermore, the plaintiffs have put forward no argument that the definition of public acts in s 38R does impermissibly burden the implied freedom, on the basis that there can legitimately be a prohibition against vilification on the grounds of a person’s status as a transgender person, which the plaintiffs do not contest.
Secondly, the only submission which seeks to utilise the tool of analysis of structured proportionality regarding the prohibition of vilification by s 38S of the Act (as distinct from the relief available in the event of prohibited conduct, to which I will come) is that in relation to necessity. The plaintiffs suggest a narrower civil vilification scheme that aligns with s 93ZAA of the Crimes Act 1900 (NSW) which prohibits as a criminal offence publicly inciting hatred on the grounds of race. In the plaintiffs’ submission, it was open to the legislature to confine liability to only public acts done intentionally. I will address that submission shortly, but will firstly confirm what it is that the plaintiffs do not take issue with.
The plaintiffs did not cavil with s 38S of the Act having a legitimate purpose. The plaintiffs’ primary written submissions quoted from what was said to be the judgment of Allsop P in Sunol at [89] as follows:

Paragraph [89] of Sunol was part of the judgment of Basten JA, explaining why the protected freedom is not effectively burdened by s 49ZT of the Act. His Honour took this reasoning into account again, as well as his Honour’s acceptance of the reasons of Bathurst CJ and Allsop P, in further finding that the law was reasonably appropriate and adapted to achieving the legitimate purposes identified.
The plaintiffs did not refer to the statements otherwise in Sunol regarding the legitimate purpose of legislation of this kind, captured in the parts of the judgment quoted above at [147]-[150] being, in the case before the Court in Sunol, to:
Prevent homosexual vilification;
Discourage (by making unlawful) public acts that vilify members of the community because of their homosexuality, to reduce or remove instances of public acts that may foster a climate or atmosphere in which violence may arise;
Promote tolerance and harmony in a society in which human rights, including those concerning sexuality, are respected;
Ensure care is taken in discussion of certain subject matters such as race, religion and sexuality in order that forces of anger, violence, alienation and discord are not fostered; and
Maintain respectful and harmonious relations between racial and religious groups and seek to minimise violence and contemptuous behaviour directed towards minorities, including those based on sexual orientation, in a diverse society, by requiring civility or reason and good faith in the discussion of certain topics. Those topics are, at least in the first instance, for Parliament to choose.
These same identified purposes are directly relevant to vilification on the ground that the person is a transgender person. Although the plaintiffs did not expressly acknowledge these purposes, they accept that there is a legitimate purpose in prohibiting vilification of a person on the ground that the person is a transgender person, and advanced no argument against these articulations of legitimate purpose identified in Sunol. There was understandably no submission advanced that these stated purposes had any different role to play in connection with public acts concerning a transgender person as compared to a homosexual person.
As noted above, it was submitted for the plaintiffs that s 38S is in its terms not necessary in the sense that there is an obvious and compelling alternative, reasonably practicable means of achieving the same purpose which would have a less restrictive effect on the freedom, namely s 937AA of the Crimes Act.
Section 93ZAA of the Crimes Act is in the following terms:

The submission was advanced for the plaintiffs that this path “achieves the same result, and whilst the degree might slightly vary, ultimately it doesn’t matter.” It was submitted that intention may be proved by inference.
As outlined earlier, the Court of Appeal in Sunol expressly took into account the absence of a requirement to prove intention to incite in finding that s 49ZT is reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedures prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people.
That the analytical tool of structured proportionality (including the concept of necessity as explained above) was not used to determine this issue by the Court of Appeal does not in my view prevent a single judge of this Court from being bound by the decision in Sunol.
If I am wrong in this regard, I reject the plaintiffs’ submission that the suggested alternative of a model like s 93ZAA of the Crimes Act indicates the tool of analysis of structured proportionality raises the prospect of a different result. Given the difficult onus of proving intent, and the requirement of proof that the act would cause fear, this model plainly does not provide an obvious and compelling alternative, reasonably practicable means of achieving the same purpose.
The plaintiffs did not address the third limb of adequacy in their written submissions and simply contended orally (of the scheme generally) that the law “goes too far and is not an adequate outcome”.
I accordingly remain of the view that I am bound by Sunol. The plaintiffs have failed to establish that consideration of structured proportionality would or may produce a different result in relation to s 38S to that arrived at in Sunol in relation to s 49ZT.
Thirdly, the plaintiffs’ attack on the relief afforded by s 108 of the Act is focused on the ability to compel an apology, said to amount to compelled speech, and to compel conduct which is not agreed with, which is contended to place a very heavy burden on the freedom of political communication. The plaintiffs accept the constitutional validity of a legislative provision which authorises at least some forms of relief, such as the awarding of damages and orders to bring the vilification to an end or prevent its repetition. In Sunol Bathurst CJ took into account the power to make orders pursuant to s 108 in a general way as part of the burden imposed by s 49ZT, but did not give specific consideration to whether any individual aspect of s 108 unjustifiably burdens the freedom of political communication.
Given that s 108 was taken into account in relation to the constitutional validity of s 49ZT in Sunol, and the plaintiffs do not contend that all aspects of s 108 are constitutionally invalid, I do not regard the plaintiffs’ additional argument that limited aspects of s 108 of the Act are constitutionally invalid as a reason to find that Sunol is not binding in relation to ss 38R and 38S. I do not regard Sunol as binding on the issue of whether a particular type of order available pursuant to s 108 is constitutionally invalid.
As I indicated at the outset the constitutional validity of s 108 of the Act was not argued or determined in the Local Court. Given my conclusion as to being bound by Sunol in relation to ss 38R and 38S, ground 8 must be dismissed and the plaintiffs’ claim for a declaration that ss 38R and 38S of the Act are unconstitutional and ultra vires the Commonwealth Constitution’s implied freedom of political communication must fail.
I acknowledge the comprehensive argument advanced on behalf of the Attorney General, relying on Basten JA’s judgment in Sunol, that s 38S does not effectively burden the freedom of political communication. As the determination by Bathurst CJ and Allsop P to the contrary was a conclusion of law against the successful party, and was not fully argued, I may not be bound by the determination by Bathurst CJ and Allsop P as the ratio of the case: AC v The King (2023) 111 NSWLR 514; [2023] NSWCCA 133 at [34], [50]. This would have been important if I had been required to determine ground 7. However for reasons already explained I am not. It would otherwise only be a secondary consideration in relation to ground 8 had I not accepted the primary position advanced for the Attorney General that I am bound by the decision in Sunol to dismiss ground 8.
My finding that ground 8 must be dismissed and no declaration granted that ss 38R and 38S of the Act are unconstitutional does not necessarily resolve completely the plaintiffs’ application for an order that the judgment of the Court below be set aside, or a declaration that s 108 of the Act is unconstitutional and ultra vires the Commonwealth Constitution’s implied freedom of political communication. However the former could only relate to an order made pursuant to an aspect of s 108 found to be constitutionally invalid, and the latter could only relate to a source of power used by the Local Court. Counsel for the Attorney General argued and counsel for the plaintiffs accepted that s 108 is amenable to being read down or disapplied if a particular part of it is unconstitutional.
The plaintiffs argued that specific parts of s 108 impose a burden on the freedom which is unjustifiable when assessed by reference to the tool of structured proportionality. Had this argument been seriously advanced in relation to any part of s 108(2) utilised by her Honour, I would have been first obliged to identify the burden upon the implied freedom before undertaking that assessment. I would have been required to address the argument for the Attorney General that there is no effective burden because vilification is not a protected form of speech. However for the reasons that follow I do not regard the plaintiffs as having in fact argued that the provisions relevant to the orders made in this case (s 108(2)(c) and (7)) are constitutionally invalid.
The plaintiffs’ submission on suitability was expressly limited to s 108(2)(c)-(e) and (7), which powers were contended to bear no rational connection to the asserted legitimate purpose of protecting individuals from vilification. Although the written submissions in reply refer to s 108(2)(b)-(e), I take this to be a typographical mistake in circumstances where the argument had been so clearly directed to s 108(2)(c)-(e) in the primary written submissions, there was no statement of a change of approach, the plaintiffs have otherwise taken no issue with preventing unlawful conduct, there was no argument advanced that could be linked to s 108(2)(b), and as submitted for the Attorney General there could obviously be no incremental burden imposed by s 108(2)(b) beyond the making of the conduct unlawful in s 38S.
The plaintiffs cited Jarrett at [145]-[146] to the effect that the constitutional system of representative and responsible government entails the possibility of disharmony, incivility and disruption, and various kinds of uncivil and objectionable behaviour are protected by the implied freedom. The plaintiffs then submitted:

The problem with the plaintiffs’ argument regarding suitability is that s 108(2)(c) and (7) are the only subsections which were utilised in these proceedings which are even theoretically included in the submission as to what is not suitable. The focus of the plaintiffs’ oral submissions, like the written submissions, was related to compelling an apology (s 108(2)(d)) or conduct that is not believed in (s 108(2)(e)), in the future. Her Honour did not order the plaintiffs to publish an apology pursuant to s 108(2)(d) (although this had been sought), and did not order the plaintiffs to develop and implement a program or policy aimed at eliminating unlawful discrimination (which was initially sought but withdrawn).
In such circumstances, there is no basis for me to determine anything regarding s 108(2)(d) or (e). Whether this is because there is no jurisdiction, the plaintiffs have no standing, or alternatively in the exercise of the orthodox prudential approach to constitutional issues is not important. Prudential considerations at least dictate that I not determine anything in these respects.
Section 108(2)(c) authorises making an order that the respondent to an application perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant. There was ultimately no argument advanced that s 108(2)(c) is not suitable for the legitimate purpose of the legislative scheme. The plaintiffs accept that some form of prohibition and prevention, and the availability of monetary damages as compensation for loss or damage suffered by reason of vilifying conduct, are proportionate to the legitimate purpose. It is not clear then how a reasonable act or course of conduct found to be suitable to redress loss or damage suffered by the complainant could be said to unjustifiably burden the freedom. The scope of the section’s relief may be seen as broad, but focused as damages is on redressing loss or damage suffered.
The plaintiffs in arguing ground 14, dealt with below regarding relief, submitted that the Court did not have power under s 108(2)(c) of the Act to make order 4 in the Blanch proceedings and order 3 in the Dennis proceedings, which required the plaintiffs to publish a notice of the Court outcome. In the course of doing so, the plaintiffs submitted in writing that s 108(2)(c) “plainly works” without construing it so as to authorise these impugned orders. During the course of the hearing the submission was advanced for the plaintiffs that the section should be used for orders such as removing vilifying graffiti. For reasons set out below, I have found the type of order made in these proceedings by the primary judge to be relief that may be afforded pursuant to the section. However for present purposes, it is important that these submissions accept the suitability of the section. The plaintiffs’ real argument is with the breadth of power authorised by it. Section 31(1) of the Interpretation Act 1987 (NSW) provides that an Act or instrument shall be construed as operating to the full extent of, but so as not to exceed, the legislative power of Parliament. The plaintiffs ultimately presented no argument that s 108(2)(c) is not suitable.
There was no submission advanced by the plaintiffs regarding the suitability of s 108(7) in serving the legitimate purpose of the legislative scheme. It allows compensation for default of other orders which the plaintiffs accept to be constitutionally valid (such as an order enjoining a respondent from continuing or repeating unlawful conduct).
The necessity argument in relation to the relief allowed by s 108, like the suitability argument, was expressly limited to s 108(2)(c) to (e) and (7). It was submitted that the legislature could have accomplished its remedial purposes of preventing vilification of minorities without conferring upon the Tribunal the powers to positively compel conduct and speech as found at s 108(2)(c)-(e) and (7). There was no alternative to s 108(2)(c) or (7) suggested by the plaintiff. These provisions are explicitly compensatory, and not concerned with compelling speech or conduct that is not believed in.
As noted above regarding ss 38R and 38S, the plaintiffs did not address the third limb of adequacy in their written submissions and simply contended orally (of the scheme as a whole) that the law “goes too far and is not an adequate outcome”. The only ways in which relief was contended to go too far was by compelling future speech and conduct not believed in.
For these reasons I do not regard any argument actually having been advanced that either s 108(2)(c) or 108(7) is constitutionally invalid, despite the technical inclusion of these subsections within the range of subsections set out in the written submissions as the subject of complaint, namely s 108(2)(c)-(e) and (7).
Had there been a challenge to the constitutional validity of s 108(2)(c) or (7) articulated I would have been required to determine the argument advanced for the Attorney General that the freedom of political communication is not effectively burdened by the legislative scheme. However in the circumstances of this case as argued I do not regard this as necessary.
Grounds 7 and 8 will accordingly be dismissed, and the declarations sought not granted.

The submissions advanced in writing and orally contended at times that there was no evidence to support the findings of her Honour as to loss suffered by the plaintiffs. A subheading in the plaintiffs’ written submissions was “No Evidence for Loss”. It was however not seriously contended that there was literally no evidence to support her Honour’s findings as to loss and damage suffered by reason of the plaintiffs’ conduct, which would amount to legal error. Rather, the submissions more often criticised the quality of the evidence. For example there followed under the heading “No Evidence for Loss” a submission that there was a “near complete lacuna of evidence as to loss and harm”.
These submissions are untenable. The damages judgment in each case documents over a number of pages the evidence adduced for the first defendants and the findings made based on it. The evidence of each of the first defendants plainly supported those findings. The evidence was in the case of Ms Blanch not challenged at all, and in the case of Ms Dennis not relevantly challenged as to damage. Both Ms Blanch and Ms Dennis adduced extensive personal evidence of the loss occasioned as a result of the plaintiffs’ conduct.
At the hearing of the appeal oral submissions for the plaintiffs acknowledged that no issue was taken with the evidence as set out by her Honour, but it was contended that there was difficulty in the “weighting of that evidence and the quantification of damages that arises from it”. Asked how this asserted an erroneous answer to a question of mixed law and fact rather than a factual question, it was submitted that “as a matter of law her Honour erred as to the test that she was applying in the compensatory principle that was being applied”, and that by that error her Honour had considered factors or facts, or drawn inferences, that were not available and would not have been accepted or drawn had her Honour applied the compensatory principle correctly.
The submission then made was that there was no evidence of economic loss, and although there may be some non-economic loss, it should be seen as nominal. There was no articulation of which facts would not have been accepted or inferences drawn if the compensatory principle had been applied correctly.
In the Blanch proceedings, the impugned acts were numerous, occurred across a number of months, and were described by Ms Blanch as having a profound impact on her. Her photograph was continuously posted online and commented on, leading to numerous instances of the plaintiffs’ followers making threats against her and making demeaning, threatening and derogatory comments about her. Ms Blanch was required to obtain an APVO against the first plaintiff, Ms Smith’s challenge to which failed in the Court of Appeal prior to the damages judgment in the Local Court being delivered. Ms Blanch’s evidence described the impact on her personally, at her workplace, in her relationships, in her study and in her ability to play soccer without interruption. She felt her pre-existing depression had worsened. Her evidence was unchallenged and supported by evidence from her counsellor and a screenshot of the safety plan she implemented as a consequence of the vilification.
Her Honour accepted that the January article and social media posts caused Ms Blanch hurt feelings, embarrassment and humiliation, to fear for her safety as a transgender woman, and to be somewhat depressed. Her Honour was satisfied that the acts were numerous and occurred over a sustained period of just over two months, and the social media posts had profound impact on Ms Blanch in terms of her safety and mental health.
There were over 10 impugned acts which identified Ms Dennis over a number of days, and resulted in considerable hurt, stress and humiliation. The content of the posts led to police being on standby for and on one occasion patrolling Ms Dennis’ soccer games, and the presence of security at the games organised by Football NSW and Football Australia, whereas previously there were few spectators at the games. An unknown person shouted “Fucking homo” at her from a car while she was training. There was a complete change in her ability to enjoy a sport she once loved. She suffered ongoing fear for her safety and that of her family, anxiety, and stress, as well as damage to her self-esteem and reputation. An APVO was obtained for her protection by the police but later withdrawn by the police. The social media posts were on her mind constantly for 12 months or so and she found it very difficult to relax and enjoy her free time. She had fears interacting with her local community, and felt obliged to come out as transgender to her team. Again, this evidence was not challenged.
Her Honour referred to the relevant evidence in Ms Dennis’ case and the fact that it was not relevantly challenged. Her Honour was satisfied on the balance of probabilities that the social media posts caused Ms Dennis hurt feelings, embarrassment and humiliation, fear for her safety and a negative effect on her enjoyment of the sport she regularly participated in. Her Honour was satisfied that despite only being posted over a short period of time, the social media posts remained visible on social media and were shared, reposted and commented on over an extended period of time, and the social media posts had a negative impact on the plaintiff in terms of her fear for her safety and caused her stress and anxiety.
The written submissions filed for the plaintiffs acknowledged none of this evidence. A few paragraphs of the affidavit evidence of each of Ms Dennis and Ms Blanch was referred to in the course of oral submissions at the hearing to contend that it was vague. It was further submitted in reply that the primary submission on damages which had been advanced in the Local Court, and which was maintained on appeal, was that “people can’t turn up to court and say ‘we’re vilified, our feelings are hurt, give us some money’”.
Contradictory submissions were advanced regarding the relevance of four cases referred to by the primary judge in the damages judgments, being: Carter v Brown [2010] NSWADT 109, Burns v Sunol [2012] NSWADT 246, T**rad v Jones & A**nor (No. 3) [2009] NSWADT 318 and Margan v Taufaao [2017] NSWCATAD 216. The written submissions contended at paragraphs 136-137, under a subheading “Disproportionality”, that her Honour held in both judgments that the circumstances before her Honour were “significantly more serious” than these other cases. This was submitted to have been erroneous as damages are not assessed as proportionate to the “seriousness of the conduct”, but rather as proportionate to the loss inflicted on the victim as evidenced in the case. It was contended that to treat them otherwise would be to transform an order pursuant to s 108(2)(a) into a punitive measure, rather than a compensatory one. This culminated in a submission that:

In advancing the plaintiffs’ primary oral submissions on the grounds relating to relief, Mr Shamsabad of counsel submitted that her Honour’s treatment of other decided cases was wrong in principle because the assessment was not proportionate to loss, but to the seriousness of other cases of a similar nature. It was submitted that this would be more akin to punishment, where a spectrum of offending was relevant (an objective seriousness matrix), rather than compensatory. It was submitted that it was by virtue of this error that her Honour awarded an excessive amount for what should have been viewed as warranting only nominal damages.
In oral submissions in reply for the plaintiffs Mr Maghami submitted on the other hand that the cases nominated in paragraph 136 of the written submissions under the heading “Disproportionality” were provided to the Court by the plaintiffs because the vilification in those cases was found to be highly hurtful, such that “They are the extreme examples of what occurred”, yet the damages awarded were less than that awarded to Ms Blanch and Ms Dennis. It was also submitted that I was required to consider the evidence, and “arrive at a figure looking at what the cases in the past have done”. It was submitted that although I was not bound by these four decisions, they are instructive and offer a framework as to the figure I should arrive at.
The contradictory nature of these submissions exposes the lack of cogency in the grounds, weighing against a grant of leave even if a question of mixed law and fact can be identified. However it should be stated that her Honour dealt with these four cases, raised for her consideration by the parties, only after extensively reviewing the evidence for Ms Blanch and Ms Dennis on the damage suffered by the vilification and making findings regarding the same, and analysing case law relevant to the assessment of damages including by repeatedly stating and quoting authorities which state that the award was compensatory. Contrary to the oral submission in reply for the plaintiffs, these four cases were plainly less serious instances of vilification than that suffered by Ms Blanch or Ms Dennis. There was nothing put forward in the Local Court or in this Court suggesting that even though the vilification was less serious, the victims in those four cases were more seriously harmed than Ms Blanch or Ms Dennis. Contrary to the submission put forward in writing and in oral submissions in chief for the plaintiffs, her Honour was not diverted from an assessment of damages on a compensatory basis by this check or comparison by reference to the cases that had been the subject of the parties’ submissions.
I note the terms of grounds 9 and 11(a) and (b). Paragraphs 150 to 154 of the plaintiffs’ written submissions fell under the subheading “Causation of Loss was not proven”. The effect of these submissions was a comparison with Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Ltd [2021] NSWCATAD 107, where NCAT ordered damages in the amount of $100,000.00. This award was submitted to have been made in circumstances unlike those now before the Court because the claim was supported by: multiple lay witnesses who gave corroborative evidence, expert evidence in respect of diagnosed psychological injuries and their long-term prognosis, evidence of the loss of income and cost of ongoing needs, and there was a claim for aggravated damages. None of this bears upon causation in this case, in circumstances where the relevant evidence, accepted by the primary judge, was unchallenged.
There then followed one sentence referring to BDJ [31] and DDJ [30], contending that “the Court goes so far as to find that Smith and Binary were capable of being held responsible for loss arising from ‘third party comments’, for which she had no control, but which were not ‘too remote*’*, which is a complete error of law.” There was no development of this proposition further in writing or orally.
There was no development of ground 11(c) in either case. There was one sentence in the plaintiffs’ written submissions alleging inadequate pleading in the Local Court – which might relate to ground 11(b) – but this was not developed. There was no articulation of how the quantum was contended to be legally unreasonable and arbitrary in any sense other than the submissions I have already outlined.
I am not satisfied that any of grounds 9 to 11 involve a question of mixed law and fact. Misapplication of the compensatory principle could, but it was argued in a contradictory way and is without merit. There is no ground which warrants a grant of leave.

The Dennis summons contains the same ground, absent the second asserted error.
Despite the terms of the ground, the written submissions did not focus on either of these suggested errors other than by way of a re-statement of the asserted inconsistency, but addressed a different error altogether (which could have been pursued as of right as involving a question of law), which was that her Honour did not have power to make the relevant order. Despite the absence of a ground in the summons asserting this being raised on a number of occasions at the hearing, there was no application to amend the summons.
It is nonetheless necessary for me to consider the issue of power, as counsel for the first defendants concedes that the order in Ms Blanch’s case was erroneous in the failure to take into account Ms Smith’s obligations pursuant to the APVO. The relevant APVO made by her Honour Wass SC DCJ in Blanch v Smith [2024] NSWDC 631, upheld by the Court of Appeal, was for a period of 2 years from 20 December 2024 until 19 December 2026. As well as prohibiting the first plaintiff from assaulting, threatening or stalking Ms Blanch, and engaging in other related behaviour, it requires her to not name or identify the Ms Blanch. The notice in Annexure A to BDJ included Ms Blanch’s name, and so compliance with the order to publish it would involve Ms Smith contravening this APVO.
Before imposing a varied order to remedy this, I should consider the arguments advanced regarding the power to make such an order.
The primary judge indicated that the order had been sought pursuant to s 108(2)(d) of the Act. However in the Local Court the first defendants sought that an apology be ordered pursuant to s 108(2)(d), but also submitted that if the Court did not order an apology, it could order a corrective notice pursuant to s 108(2)(c). Reliance was placed then, and in this Court, upon Lamb v Campbell [2021] NSWCATAD 103, in which NCAT, while finding that an apology was warranted, nevertheless considered that a public statement was more appropriate. NCAT (Senior Member Easton and General Member Murray) stated at [55] to [59]:

Given that the course taken by the primary judge in the current proceedings was similar to that taken in Lamb v Campbell, I take the submission quoted immediately above as one that Lamb v Campbell was wrongly decided – not that it was a case where the Tribunal had been found to be in error in making the relevant order.
In the plaintiffs’ primary oral submissions it was contended that orders must be narrowly tailored and cannot be exercised to compel speech of an individual to express an opinion which the individual themself does not hold or agree with. It was submitted that s 108(2)(d) did not comprehend making the sort of corrective notice ordered by her Honour and the alternative power under s 108(2)(c) raised by the first defendants did not authorise it either, including because such broad power under s 108(2)(c) would make the specific power to order an apology in s 108(2)(d) unnecessary.
Counsel for the plaintiffs submitted in oral submissions in reply that no compensatory purpose (which is required for s 108(2)(c)) for a notice of the kind ordered by her Honour had been identified, and such a notice could achieve nothing of compensatory value.
I reject the submission that a notice of the kind ordered by the Local Court judge could have no compensatory purpose. The potential value of such an order is discussed in the reasons of Bromberg J in Eatock v Bolt (No 2) [2011] FCA 1180; (2011) 284 ALR 114 which were quoted by the primary judge, the decision of Mortimer J in Wotton v State of Queensland (No 5) [2016] FCA 1457; (2016) 352 ALR 146 relied upon in this Court by the Attorney General, and the decision of Lamb v Campbell already identified. Although Mr Moretti of counsel who appeared for the Attorney General made submissions generally limited to the constitutional grounds, because the construction of s 108(2)(c) was relevant to these he articulated an argument in support of a construction of this subsection which would permit the ordering of a notice of the kind ordered in these proceedings. In particular it was submitted that “loss or damage” as it appears in s 108(2)(c) should not be given a narrow meaning.
There was evidence before the Local Court in both proceedings of a number of members of the plaintiffs’ audience in fact having been incited to hatred, severe ridicule of or serious contempt for Ms Blanch and Ms Dennis. Their evidence of the impact of this on them was an important part of the assessment of damages in the Local Court. This fact focuses attention on the remedial capacity of a notice of the kind challenged in this Court, although it is not dependent upon these unfortunate occurrences.
The notice has the capacity to inform those who were actually so incited, and responded with hateful messages or posts of their own, and to those who may have been so incited but did not publicly ventilate such hatred, and those who otherwise absorbed and thought about the plaintiffs’ public acts which vilified the first defendants, that a Court has determined that the January article and social media posts were not a lawful way to discuss and debate the issue of whether transgender women should be playing in women’s sporting teams.
The relief allowed by s 108(2)(c) is limited to orders directed towards redressing loss or damage suffered by a complainant. It can be well understood that this action is capable of contributing to restoring the first defendants to a position closer to where they were before the plaintiffs’ unlawful acts. The fact of the plaintiffs’ audience being so informed of the Court’s determination is in my view as suitably directed at the legitimate purpose of this legislative scheme as an order for monetary damages, or an order for the removal of posts or prohibition on future vilifying acts.
Counsel for the plaintiffs’ focus on compelling citizens to express views they do not believe in by apology is misplaced in relation to an order of the kind made by the primary judge in this case. The ordered notice does not require the plaintiffs to express a view they do not believe in. The plaintiffs may not agree with the finding of unlawful vilification made by the Local Court, but they cannot believe that the finding was not made.
Mr Gregory who appeared for the first defendants drafted an alternative notice for publishing in relation to Ms Blanch, which would not involve the plaintiffs contravening the APVO ordered by her Honour Wass SC DCJ and upheld by the Court of Appeal. There was no submission advanced for the defendants as to the suitability of this to address that discrete problem, and in the Blanch appeal I will grant leave to appeal and uphold this ground of appeal, ordering in place of the order made by the learned primary judge the publication of a notice in the terms drafted by counsel appearing for Ms Blanch.
The submission was advanced for the plaintiffs that there was a problem with the seemingly indeterminate nature of the order, as though the notice must be permanently published by the plaintiffs. I am satisfied that this issue suggests an error involving a question of law, or a question of mixed law and fact which warrants a grant of leave.
The purpose of the notice is to redress loss and damage to the defendants, not to stigmatise or shame the plaintiffs. The fact of it being posted at all is capable of redressing damage to some extent. It being posted for a period that will expose its contents to a meaningful number of the plaintiffs’ followers, including those who recall the impugned posts and the responses thereto, or who responded themselves, is capable of further redressing damage. Mr Gregory submitted that a duration of one to two years would be suitable. No submission was advanced for the plaintiffs as to a suitable length of time. Despite the limitations on my capacity to engage in primary fact finding, it is plainly desirable that the notices be posted as soon as possible.
I have considered a number of first instance decisions of this Court regarding the limits on fact finding authorised by s 75A of the Supreme Court Act in the context of appeals from the Local Court, such as Lesley-Swan v Owners SP 32735 [2013] NSWSC 1635 (Beech-Jones J) and Sheahan v Coolah Tourist Park Pty Ltd [2025] NSWSC 447 (Basten AJ), as well as the decision of the High Court in Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 and that of the Court of Appeal in Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; 71 NSWLR 230 (as well as Rose v Tunstall). I am of the view that I am able to draw an inference from the facts as found by the primary judge regarding the damage caused to the first defendants, with the reasoning I have articulated already concerning the way in which posting the correction notices may redress that harm, to determine an appropriate period of time for the notices to remain visible. This course promotes the quick, cheap and just resolution of the matter rather than remitting the proceedings to the Local Court. The notices should remain visible for a period of three months.

An equivalent ground regarding order 4 in DDJ in the amount of $40,000 was raised in the Dennis summons, on the same grounds. The plaintiffs’ written submissions did not describe the ground as involving a question of law in the Dennis proceedings. This however seems to have been a mistake, and the written submissions for the first defendants accept that ground 12 in each case involves a question of law.
At the hearing of the appeal counsel appearing for the first defendants submitted to the Court that there was a flaw in the relevant orders because s 108(7) of the Act only permits the order for default of compliance with an order under subsection (2)(b), (c), (d) or (e), not the award of damages under s 108(2)(a). The relevant orders of the primary judge were based on non-compliance with a number of orders, including the first order for payment of damages. This was not permitted by the Act. The plaintiffs did not seek leave to amend the summons in either appeal by amending ground 14 or adding another ground which reflected the error raised by counsel for the first defendants. Despite this the error is significant and able to be addressed under the ground included in the summons – in including compensation for non-compliance within 28 days of the order for damages, the order was partly disproportionate and made on an improper basis.
On the issue of the amount ordered pursuant to s 108(7), her Honour referred to the decision of the Administrative and Equal Opportunity Division of NCAT (R C Titterton, Principal Member and A Lowe, General Member) in Malenha v Sullivan [2017] NSWCATAD 222 (“Malenha”) as precedent for the proposition that the sum ordered for default mirrors the sum awarded for damages, this decision having been brought to her Honour’s attention by the defendants, with no authority to the contrary placed before the Court. This decision of NCAT involved the ordering of an apology and payment of $2,500 in damages, within 28 days of judgment, for racial vilification. It was also ordered that if the respondent did not comply with the order to apologise she was to pay the applicant $2,500 by way of damages for non-compliance. There were no reasons provided as to why the amount was the same.
There is no reason why the decision of NCAT in Malenha as to payment for default in compliance with orders should be regarded as anything other than a determination of appropriate compensation on the facts of that case. Counsel for the defendants informed the Court that there are numerous other NCAT decisions where the same amount is ordered under s 108(7) and under s 108(2)(a), but without reasons as to why this is done.
Counsel for the first defendants accepted that it would be permissible and arguably appropriate to provide for apportionment of the amount to be awarded by reference to the particular order not complied with. I was informed that the vilifying social media posts have been removed. There was no stay sought before or granted by Faulkner J in relation to the primary judge’s order for such removal.
It would be open to me to remit the matter to the Local Court to determine the amount to order pursuant to s 108(7) in accordance with law (and this was the initial submission advanced for the plaintiffs at the hearing, although the summonses do not seek such relief). It is also arguable that the very limited finding of fact required for me to vary the terms of the judgment or order (as permitted by s 41(1)(a) of the Local Court Act) is also open, taking into account the authorities addressing this issue referred to above at [242]. This prospect was raised by me at the hearing, and there was no submission to the contrary. It is highly desirable given the length of time which has elapsed since the first defendants were vilified for these proceedings to be brought to finality if possible. Further, the order to publish the notice is to be made now and it is desirable for the plaintiffs to be aware of the automatic financial consequence of non-compliance with that order.
The plaintiffs have referred to no case law to support a submission advanced in writing that evidence was required to support the necessity of an order under s 108(7). However a suitable compensatory figure may be better determined with evidence as to how long the social media posts were publicly accessible and (which is the same issue) how long it has been since they were removed.
Given the social media posts have been removed, an order made now under s 108(7) is directed towards compensating the first defendants for a notice in the form set out in Annexure A not being published forthwith and remaining visible for three months.
I have closely considered whether taking into account: the damages awarded as compensation on the evidence accepted by her Honour, in an amount I have not interfered with; the prospect of the notice further redressing the damage suffered by the first defendants in the way identified in relation to my consideration of ground 14; and the length of time that has elapsed since the doing of the vilifying public acts, I can draw an inference as to the appropriate amount (including as a proportion of the amount of damages awarded, such as 20%) to order pursuant to s 108(7). I am not suggesting that proportion is always necessary. In some cases an order pursuant to s 108(7) may be greater than the award of damages under s 108(2)(a).
I have come to the view that the determination of an appropriate amount to order pursuant to s 108(7) is best addressed by the Local Court. This issue will not arise at all unless the plaintiffs disobey the order of the Court regarding posting the corrective notice. Given the reasonably short period of time for which I have required this to remain visible, the matter may be listed in the Local Court on a date shortly after the expiry of that time frame, and vacated in the expected event of compliance with the orders of the Court.

The Attorney General sought no order in his favour for costs. Although the first defendants have been successful to a significant extent in responding to the plaintiffs’ appeals, Mr Gregory indicated no order for costs in favour of the first defendants was sought as he and his instructing solicitor have acted on a pro bono basis.
The plaintiffs sought costs. They have been largely unsuccessful. To the extent that they have been successful regarding limited aspects of the orders made on 5 December 2026, they should not receive an order for costs. This is particularly so given that the success regarding the order as to enjoinder could likely have been corrected as a slip in the Local Court, and the problem of the correction notice’s conflict with the APVO for the protection of Ms Blanch could no doubt have been resolved by agreement, as could have been the lack of indication of a time frame. The error in the order under s 108(7) would only have come to fruition if the plaintiffs were in contempt of the orders of the Local Court. The costs order made in the Blanch proceedings could have been resolved by the offer made on her behalf. In all respects, even if an appeal was required, its ambit would have been extremely limited by comparison to the way in which these proceedings have been conducted. The plaintiffs have the significant advantage of a costs order not being made against them because of the pro bono legal assistance to the first defendants.
Counsel for the first defendants submitted at the hearing that in the event that the appeal or the majority of it is dismissed I should discharge order 1 made by Faulkner J, and there was no contrary submission.
Accordingly I make the following orders in the Blanch proceedings:
Grant an extension of time to appeal against the judgment of the Local Court of NSW dated 26 August 2025;
Allow the appeal against order 3 of the Local Court made on 5 December 2025 and set aside that order;
In its place order that forthwith, the first and second plaintiff are to refrain from publishing on social media or otherwise anything relating to the first defendant to the same or similar effect as held to be unlawful vilification in Local Court proceedings 2024/78280;
Grant leave to appeal against order 4 of the Local Court made on 5 December 2025;
Allow the appeal against order 4 of the Local Court made on 5 December 2025 and set aside that order;
In its place order that forthwith and continuing for 3 months the first and second plaintiffs are to publish a public statement in the terms of Annexure A, on all social media pages and websites over which they have control, including Facebook, Instagram and X (formerly known as Twitter) and the website of Binary Australia and ensure that:

Allow the appeal against order 5 of the Local Court of 5 December 2025 and set aside that order;
Remit the determination of order 5 to the Local Court. The matter will be listed for mention on Monday 2 November 2026 with the parties to vacate such listing in the event order 6 made today has been complied with;
Grant leave to appeal against order 6 of the Local Court made on 5 December 2025;
Allow the appeal against order 6 of the Local Court made on 5 December 2025 and set it aside;
The summons is otherwise dismissed;
The stay ordered by Faulkner J is discharged;
Each party is to pay their own costs.
I make the following orders in the Dennis proceedings:
Grant an extension of time to appeal the judgment of the Local Court of NSW dated 26 August 2025;
Allow the appeal against order 2 of the Local Court made on 5 December 2025 and set aside that order;
In its place order that forthwith, except to the extent that it has already been done in compliance with order 2 of the Local Court, the plaintiff is to remove the social media posts that contain screenshots and links to the leaderboard referencing the first defendant from any website or social media account they control and not make any future social media posts relating to the first defendant to the same or similar effect as held to be unlawful vilification in Local Court proceedings 2024/220187;
Grant leave to appeal against order 3 of the Local Court made on 5 December 2025;
Allow the appeal against order 3 of the Local Court made on 5 December 2025;
Vary order 3 of the Local Court made on 5 December 2025 to require that it be complied with forthwith and continuing for 3 months;
Allow the appeal against order 4 of the Local Court of 5 December 2025 and set aside that order;
Remit the determination of order 4 to the Local Court. The matter will be listed for mention on Monday 2 November 2026 with the parties to vacate such listing in the event order 3 of the Local Court as varied by order 6 made today has been complied with;
The summons is otherwise dismissed;
The stay ordered by Faulkner J is discharged;
Each party is to pay their own costs.

Smith v Blanch; Smith v Dennis

At a glance

Court

Decision date

Before

Catchwords

Catchwords

Judgment

Source

JUDGMENT

Liability grounds of appeal that do not raise constitutional issues

Constitutional grounds

Grounds regarding relief

The award of damages

Enjoinder

Public notice

Damages for default in compliance with Court orders

Costs awarded in the Local Court

Conclusion and orders

ANNEXURE A

Amendments

27 July 2026

Legislation Cited (13)

Cases Cited (56)