Smith v Blanch; Smith v Dennis – NSW Caselaw

Smith v Blanch; Smith v Dennis [2026] NSWSC 879

Hearing dates: 25 and 26 May 2026

Decision date: 24 July 2026

Before: Rigg J

Parties: Kirralie Smith (first plaintiff)
Gender Awareness Australia Ltd trading as Binary Australia (second plaintiff)

Stephanie Blanch (first defendant in proceedings 2025/00499310)
Riley Dennis (first defendant in proceedings 2025/00499311)
Attorney General of NSW (second defendant)

Representation: Counsel:
F Maghami and C Shamsabad (first and second plaintiffs)
C Gregory (first defendants)
L Moretti (second defendant)

Solicitors:
Solve Legal (first and second plaintiffs)
Dentons Australia Limited (first defendant)
Crown Solicitor’s Office (second defendant)

Decision under appeal Court or tribunal: Local Court of NSW Jurisdiction: Civil Date of Decision: 26 August 2025; 5 December 2025
Before: Deputy Chief Judge Freund

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.

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.

On 5 December 2025 the primary judge made orders and published reasons affording relief in each matter. The damages judgments will be referred to as BDJ in Ms Blanch’s proceedings and DDJ in Ms Dennis’ proceedings. In relation to Ms Blanch, her Honour ordered: The First and Second Defendants pay the Plaintiff the sum of $55,000 by way of compensation within 28 days . . .

In relation to Ms Dennis, her Honour ordered: The Defendant pay the Plaintiff the sum of $40,000 by way of compensation within 28 days.. .

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.

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”).

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.

I . . . 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.

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.

Source: Smith v Blanch; Smith v Dennis – NSW Caselaw