Smith v Blanch; Smith v Dennis

There are two sets of proceedings before the Court today which have been brought urgently in the period between Christmas and New Year's Day. There is only one issue to be decided today and that is whether a stay ought to be granted of the orders made by the Local Court on 5 December 2025. The Court is not required today to make any decision about the underlying issues which were before the Local Court. Those issues have been decided on a final basis by the Local Court Magistrate on 5 December 2025. Until or unless they are disturbed by any appeal, that decision remains final and binding.

By way of background, the Plaintiffs are public advocates on issues which include participation in sport by transgender women. The First Defendant in each set of proceedings are two such footballers. In early 2023 the Plaintiffs made a number of statements about the Defendants. The details are not currently relevant other than to say that the statements included statements made on Facebook, Twitter and other social media platforms.

The Defendants brought proceedings against the Plaintiffs in the Local Court alleging contravention of the Anti-Discrimination Act 1977 (NSW). The proceedings were defended. There was little dispute about the primary facts although there were questions about the characterisation of the facts. The Defendants denied that they contravened the Statute. They claimed that the conduct fell within the defence contained in s 38S(2)(c) of the Statute as it relates to acts done reasonably and in good faith for the purposes of the public interest, including discussion about any act or matter. The Defendants further contended that Div 5 of Part 3A of the Statute was invalid for being inconsistent with the Australian Constitution because it burdened in a disproportionate way the constitutionally implied freedom of political communication.

On 26 August 2025 the Local Court Magistrate circulated reasons in which her Honour made a number of findings, principally that the Plaintiffs had unlawfully vilified each of the Defendants, that the defence in s 38S(2)(c) did not apply and that Div 5 of Part 3A of the Statute is not invalid. The Magistrate did not make any orders on 26 August 2025.

A further judgment was circulated on 5 December 2025 on which occasion the Local Court Magistrate made final orders. In the case of the claim by Ms Blanch, the orders were as follows:

In the case of Ms Dennis, the orders were as follows:

As is apparent from the terms of the orders, the Plaintiffs are required to comply with them by 2 January 2026. If they fail to do so, the order for payment of an additional penalty will operate in accordance with the terms.

On 23 December 2025, the Plaintiffs filed a Summons by which these proceedings were commenced. The burden of the Summons is to appeal from the orders made by the Local Court Magistrate on 5 December 2025. The Plaintiffs assert, and to some extent it seems right, that they have a right of an appeal on a question of law under s 39 of the Local Court Act 2007 (NSW). In addition, and to the extent necessary, the Plaintiffs seek leave to appeal on questions of mixed fact and law under s 40 of the Local Court Act 2007 (NSW).

There is no explanation in the evidence for the delay between 5 December and 23 December 2025.

Also on 23 December 2025, the Plaintiffs filed in each proceedings Notices of Motion by which they seek a stay of the Local Court orders pending determination of their appeals (and if necessary, applications for leave to appeal) or further order of the Court. The Defendants each oppose a stay generally, but not in every particular.

The principles upon which a stay is to be ordered in a case like this are well-known and very succinctly summarised by Payne JA in Michael Hill Jeweller Australia Pty Limited v Gispac Pty Limited [2024] NSWCA 128 at [5]:

Turning to the first of the considerations, namely whether there are serious issues for determination, a number of points can be made.

First, it is a relatively low barrier. The Court is not required on an application like this to decide the merits of the appeal, nor is it able to. In my view, the requirement that there be a serious issue for determination has been demonstrated, both in relation to the appeal against the orders in favour of Ms Blanch and the appeal against the orders in favour of Ms Dennis.

Starting with Ms Blanch, the question whether the defence in s 38S(2)(c) of the Statute applies required a consideration about whether the conduct which was the subject of the decisions was "reasonable" and "in good faith". The Local Court Magistrate made findings about those matters which are challenged in the Summons by which the Plaintiffs have commenced the appeal. Being questions of characterisation in the context of a provision like s 38S(2)(c), one may readily conclude that there is a serious issue for determination on an appeal particularly when, by virtue of s 75A(5) of the Supreme Court Act 1970 (NSW), the appeal is likely to take place by way of rehearing. In addition, the Plaintiffs challenged the quantum of the monetary payment they have been ordered to make to Ms Blanch in circumstances where the Local Court Magistrate's reasons show one figure in the reasoning and another figure in the orders. The difference is inexplicable. Further, there is no dispute that the Plaintiffs would not be able to comply with Order 4 other than by contravening an extant AVO which may itself be a reason for challenging the making of Order 4.

In those circumstances, I am satisfied that there is at least one serious issue for determination arising from the appeal against the orders in favour of Ms Blanch. The Summons refers to many other grounds of appeal but for current purposes only one need be identified as raising a serious issue to be tried for the Plaintiffs’ purposes of seeking a stay.

The position in relation to Ms Dennis is the same in the sense of the same issue in relation to the reasonableness and the good faith of the Plaintiffs were the subject of findings by the Local Court Magistrate. For that reason I consider that there is also a serious issue for determination in the appeal which the Plaintiffs are bringing against Ms Dennis. The position with Ms Dennis is different to that of Ms Blanch in the sense that there is not the same inexplicable discrepancy between the figures for the monetary payment, nor is there a problem arising from an extant AVO. However, as I have said, there need only to be one serious issue for determination for current purposes.

The Plaintiffs have made submissions about other serious issues which they say are for determination on appeal, particularly in relation to their intention to challenge the finding that Div 5 of Part 3A of the Statute is not invalid. The Defendants submit that that argument is foreclosed by binding authority and there does seem to be some force in that submission. On the other hand, the Plaintiffs say that the existing authorities are distinguishable from the facts in this case. As I have said, the Court is not in a position to determine the relevant merits of the competing submissions under the urgent circumstances in which this matter must be decided. I have not formed a view one way or the other in relation to the constitutional issues and again repeat that for current purposes that there only need be one serious issue for determination which exists in each case.

The second consideration is whether there will be prejudice to the Plaintiffs if no stay is ordered. In each matter, the first order is for the payment of money, $55,000 and $40,000 respectively. Each sum is a substantial amount. There is no suggestion that the Plaintiffs are not able to pay the money, but it may be accepted that a requirement to pay sums of that magnitude is a substantial imposition.

The Plaintiffs have submitted further prejudice arises by virtue of the risk that the money will not be repaid in the event that the appeals succeed. I do not consider that that submission carries any real weight in this case. There is no evidence about the circumstances of the Defendants and there is nothing to suggest that they would not be obedient to any subsequent order of the Court that they repay money received by them. I do not, therefore, consider the risk that the money will not be repaid as adding to the prejudice to which the Plaintiffs are otherwise exposed in having to pay those sums now.

In terms of Order 2 made in favour of each of the Defendants about the removal of social media posts, the Plaintiffs have not demonstrated any prejudice to them from having immediately to comply with that order. In relation to Ms Blanch, it has been said, although I do not think proved but in any event it is not controversial, that the posts have already been removed and therefore nothing further is required of the Plaintiffs to comply with Order 2. The position is not the same in relation to Ms Dennis but, even so, the Plaintiffs have not demonstrated prejudice from now having to remove the old posts. The posts are getting close to being three years old and I am not persuaded that removal of them now will somehow undermine the Plaintiffs' position as advocates for the issue referred to earlier in these reasons.

In relation to Order 3 in favour of Ms Blanch and the second half of Order 2 in favour of Ms Dennis about not making any further social media posts in the terms described, I do not see any prejudice in that order having immediate effect and indeed there does not seem to be any controversy about that today.

Turning then to Order 4 in favour of Ms Blanch and Order 3 in favour of Ms Dennis, these orders require the Plaintiffs to publish in the way prescribed, statements about the findings of the Local Court. On one view, the statements which are in prescribed terms and constitute Annexure A to each of the respective judgments of the Local Court, are simply statements of the fact, namely that the Plaintiffs have been found to have contravened the Statute. However, the prescribed language requires the statements to make reference to the conduct of the Plaintiffs in terms of inciting hatred towards, serious contempt for and severe ridicule of each of the Defendants. Whereas the provision of the Statute which has been found to have been contravened by the Plaintiffs is directed to conduct which has that characterisation, setting out the language of the provision is something which ought to be considered when deciding whether the Plaintiffs will be prejudiced if they are required immediately to publish those statements. In the case of Ms Blanch, that difficulty is removed because the Plaintiffs, or at least the First Plaintiff, is subject to an AVO which prohibits them, or at least her, from naming or identifying Ms Blanch. It was common ground on the hearing of this application that performance of Order 4 made in favour of Ms Blanch would likely be a contravention of that AVO. In those circumstances, Ms Blanch essentially accepts that a stay of Order 4 ought to be granted today.

In relation to Ms Dennis, in favour of whom there is no AVO, the same difficulty does not arise. However, for current purposes, it can be accepted that having regard to the prescribed text of the notice which the Plaintiffs have been ordered to publish that there would be some prejudice to the Plaintiffs if the stay is not granted.

Turning then to the last matter which is the balance of convenience, this requires the prejudice to the Plaintiffs (which I have just identified) being balanced against the prejudice to the Defendants if the stay is ordered.

In relation to Order 1, namely the order that money be paid by the Plaintiffs to the Defendants, the Defendants have not made any submissions as to any prejudice which they will suffer if the payment of that money is delayed. For example, there is no suggestion that the Plaintiffs will somehow dissipate their assets if payment is not made immediately. Of course, if the Defendants are kept out of immediate receipt of the money then, when ultimately they receive it (which must be considered on this hypothesis), they will essentially have lost the time value of money in the meantime which is usually compensated for by payment of interest. I do not think that prejudice will arise in this case either because under s 101 of the Civil Procedure Act 2005 (NSW) there is a statutory entitlement to interest on an unpaid judgment debt and, even if that provision does not apply for a period during which a judgment debt has been stayed, then the delay in receipt of the money will essentially be damages which would fall within the usual undertaking as to damages which the Plaintiffs would be required to give as a condition of a stay being granted.

In terms of Orders 2 and 3 relating to the removal of social media posts and putting up new posts, I accept the submission from counsel for the Defendants that the existence of the original posts ought be taken as distressing to the Defendants and, although the posts are now getting close to three years old and both parties seem to accept from the bar table are not likely to be looked at frequently, there is that prejudice to be brought into the balance. The same applies to putting up new social media posts.

In terms of Order 4 in favour of Ms Blanch and Order 3 in favour of Ms Dennis, the orders do not seem to be directly aimed at the Defendants. Whilst the prescribed terms of the notices to be published on social media and websites inform the reader that the Plaintiffs have contravened the Statute and refer to the Defendants as the persons in relation to which the contraventions occurred, the principal purpose of the orders appear to be an acknowledgment by the Plaintiffs of their contravening conduct. Therefore the prejudice to the Defendants from there being a delay in those notices being published seems slightly beside the point.

Having regard to all those matters and weighing the prejudice to the Plaintiffs and the prejudice to the Defendants, the position is split. The balance of convenience I consider favours the Plaintiffs in relation to Order 1, which is the requirement to pay money, and Order 4 for Ms Blanch and Order 3 for Ms Dennis, which is the requirement to publish the notices in prescribed terms. In those circumstances, a stay of those orders will be granted.

On the other hand, the balance of convenience favours the Defendants in relation to Orders 2 and 3 for Ms Blanch and Order 2 for Ms Dennis. Those orders ought to be complied with now.

As a final matter, the Court has a residual discretion. There has been delay in making this application in the period between the Local Court judgments being handed down on 5 December 2025 and the filing of the Notices of Motion for a stay on 23 December 2025 which have not been adequately explained in the evidence. This is a case where that may have caused real prejudice to the Defendants because it has compromised the ability of the Defendants to adduce evidence between Christmas and New Year. From the bar table I was told that the Defendants would have wanted to adduce evidence about the Plaintiffs self-publicising the facts of the judgment. That prejudice would be relevant to the question about whether a stay ought to be ordered in relation to Order 4 as it relates to Ms Blanch and Order 3 as it relates to Ms Dennis. It does not actually affect the application for a stay in relation to Ms Blanch because the Plaintiffs would be entitled to a stay of Order 4 in any event by virtue of the problem with the AVO.

I have considered in the face of the delay whether or not a stay of Order 3 in favour of Ms Dennis should be granted. On the whole and taking into consideration everything I have said above, I consider it is still appropriate to grant the stay of Order 3 in favour of Ms Dennis despite the delay in making the application.

In those circumstances, the orders of the Court will be as follows: