Key decisions
- Smith v Blanch [2025] NSWCA 188
Smith v Blanch [2025] NSWCA 188
Apprehended Personal Violence Orders – intimidation – sufficiency to warrant the making of an APVO
In this decision of the Court of Appeal, the Court has made a careful analysis of the procedure of making an Apprehended Personal Violence Order (‘APVO’), what is meant by ‘intimidation’, and the circumstances in which a finding will be sufficient for the making of an order.
The applicant is a spokesperson for an organisation that she describes as being ‘dedicated to upholding the reality of biological and binary sex’. She held opinions opposing transgender women participating in women’s sport. The first respondent is a transgender woman who had been playing football (viz. soccer) for 25 years with a small Mid-North Coast women’s community football team. The applicant posted on a range of platforms about the first respondent, including identifying photographs, pejorative labels, and at least one post calling for assistance from local men in the area in attempting to prevent the respondent from playing. The posts made clear the applicant’s view that the various governing bodies for football should not allow transgender women in football, and in particular the respondent. The applicant lodged a police report and applied for an APVO, pursuant to s 19 of the Crimes (Domestic and Personal Violence) Act 2007 (‘DV Act’).
A Magistrate heard the application and, whilst she accepted that the respondent had fears of harassment, and that the respondent’s conduct amounted to harassment of the respondent, her Honour also found the conduct which the respondent had reasonable grounds to fear (and did in fact fear) was not sufficient to warrant the making of an APVO. The respondent appealed that Local Court decision to the District Court. A District Court judge upheld the respondent’s appeal and made an APVO against the applicant. The applicant duly applied to the Supreme Court in its supervisory jurisdiction, challenging the APVO on the basis of asserted jurisdictional error. This summary only deals with a ground that raised the question of the interpretation of s 19 of the DV Act.
In a unanimous judgment, the Court (Kirk, Stern, and McHugh JJA) observed that previous authority established that the power to make an APVO resolves into three overlapping and interdependent questions (at [50]):
- Is the court satisfied on the balance of probabilities that the protected in fact fears the conduct of the relevant kind?
- Is the court satisfied on the balance of probabilities that the applicant for an order has reasonable grounds for that fear? And
- In the opinion of the court, is the feared conduct sufficient to warrant the making of an order under s 19? This is referred to in the judgment as the ‘sufficiency enquiry’. This requires both consideration of matters of fact and an evaluative judgment. The court must be satisfied on the balance of probabilities for it to have the power to make an order, and it is the sufficiency of the feared conduct which is being assessed.
The sufficiency enquiry involves characterising the feared conduct, having regard to all the factual circumstances which are relevant to the safety and protection of the protected person. It involves evaluation, taking into account at least the nature, quality and extent of the conduct, as relevant. In some cases, factors personal to the person in need of protection (‘PINOP’) may impact the seriousness of the feared conduct from his or her perspective and may also be relevant. To that extent, the sufficiency enquiry may in some cases also involve an evaluation of the impact or effect of the feared conduct on the PINOP (at [53]).
The Court has made a careful analysis of the procedure of making an Apprehended Personal Violence Order, what is meant by ‘intimidation’, and the circumstances in which a finding will be sufficient for the making of an order.
Whether the feared conduct falls within the ambit of (in this case) ‘intimidation’ of the person is a matter of characterisation having regard to the definition in s 7 of the DV Act (at [57]). Relevantly to this case, that definition includes ‘conduct… amounting to harassment or molestation of the person’. ‘Harassment’ and ‘molestation’ are not defined in the DV Act and are to be given their ordinary English meanings. As correctly identified by the District Court judge at first instance, harassment involves being ‘troubled by repeated attacks, incursions’ or to ‘disturb persistently’. Molestation means ‘to interfere with annoyingly or injuriously’ and includes ‘behaviours which are found to be ongoing and unwanted and of a pestering and interfering nature’ (at [58], [152]). Those explanations encompass conduct of a repetitive character, indicating a degree of significance. However, repetition is not always required, as the example given in the definition in s 7(1)(a) of threatening to ‘out’ someone could be a one-off action (at [152]).
Contrary to the submissions made by the applicant, ‘intimidation’ does not necessarily require an intention to harass or molest. That would be contrary to the text, context and purpose of the section (at [60], [121]). Moreover, there is no basis to characterise harassment and molestation as necessarily indirect forms of conduct, and still less to characterise other forms of conduct within the s 7 definition of intimidation as necessarily direct or involving an intention to cause fear, injury, violence or damage (at [64]).
The Court also rejected further statutory and caselaw arguments to the effect that an intention to harass or molest is an essential matter to be proved under s 7(1)(b) or (c) (at [65]-[68]). However, the question of the intention of the defendant may be relevant beyond s 7, for example in the context of whether a person has reasonable grounds to fear conduct of the relevant kind, and may also be relevant to whether or not past conduct may be repeated. It is not, however, a mandatory consideration (at [69]).
The sufficiency enquiry in s 19(1) requires that the feared conduct meet a threshold of seriousness or significance. The DV Act is not concerned with minor annoyances, and the requirement that the PINOP fear the defendant engaging in the intimidatory conduct and that that fear must have reasonable grounds also operate to exclude the trivial from the ambit of s 19(1). In light of these matters, it is apparent that such orders are not to be made lightly (at [152]).
There was an associated notice by the applicant, both in the District Court and on appeal, to raise a Constitutional issue on the basis that s 19 of the DV Act impermissibly burdened the freedom of political communication, as well as arguments about the standard of judicial review (i.e. House v The King versus the correctness standard). Whilst both issues are terribly interesting, unfortunately neither arises very much in daily practice; it is enough to know that the Court rejected the challenges, and dismissed the appeal (that is, upheld the making of the APVO).

