Kerry v The New South Wales Ice Skating Association Inc, trading as New South Wales Ice Skating Association Inc

[2025] NSWSC 833

Supreme Court

New South Wales

Medium Neutral Citation:

Kerry v The New South Wales Ice Skating Association Inc, trading as New South Wales Ice Skating Association Inc [2025] NSWSC 833

Hearing dates:

25 July 2025

Date of orders:

25 July 2025

Decision date:

25 July 2025

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1)   Leave granted to file the Amended Statement of Claim.

(2)   The plaintiff shall pay the defendant’s costs thrown away by the amending of the Statement of Claim.

(3)   Pursuant to s 7 and s 8(1)(a), (c) and (e) of the Court Suppression and Non-publication Orders Act 2010 (“the Act”), there be no disclosure, by publication or otherwise, of the names of, or information that identifies or tends to identify the names of, the persons referred to as:

(a)   “Claimant 1”; and

(b)   “14 year old Australian”

in the Defence filed on 4 July 2025 and other than to:

(c)   Judicial officers of this Court;

(d)   Essential court staff;

(e)   The parties;

(f)   Legal representatives of the parties instructed in these proceedings; and

(g)   Any persons, including potential witnesses, where such disclosure is necessary for the preparation of the matter for trial.

(4) Pursuant to s 11(2) of the Act, Order 1 shall apply throughout the Commonwealth of Australia.

(5)   The orders shall be entered forthwith.

(6)   The plaintiff shall pay the defendant’s costs of the motion.

(7)   Reasons reserved.

Catchwords:

CIVIL PROCEDURE — Hearings — Suppression and non-publication — defamation proceedings — findings of sexual misconduct involving a minor — where alleged conduct occurred in the United States and Queensland

Legislation Cited:

Acts Interpretation Act 1954 (Qld), s 35(1)(b)

Child Protection Act 1999 (Qld), ss 185, 194

Court Suppression and Non-publication Orders Act 2010 (NSW)

Crimes Act 1900 (NSW), ss 61HJ(1)(c), 61HJ(1)(h), 73(2), 73A

Supreme Court Act 1970 (NSW)

Cases Cited:

Pelechowski v The Registrar, Court of Appeal (1998) 198 CLR 435

R v Kwok & Ors [2005] NSWCCA 245

Category:

Procedural rulings

Parties:

Brendan Kerry (Plaintiff)
The NSW Ice Skating Assoc Inc trading as New South Wales Ice Skating Association Inc (Defendant)

Representation:

Counsel:
N Olson (Plaintiff)
M Richardson SC / D Helvadjian (Defendant)

Solicitors:
Mark O’Brien Legal (Plaintiff)
Kennedys Law (Defendant)

File Number(s):

2025/183415

Publication restriction:

Not applicable

JUDGMENT

1. HIS HONOUR: The Court is required to deal with a notice of motion seeking suppression orders in relation to the identity of two persons. The substantive proceedings are for defamation in which the plaintiff alleges that the defendant defamed the plaintiff by publishing a note to its members regarding a sanction handed down by the US Centre for SafeSport against the plaintiff, who is an Australian Olympian and Coach. The sanction was imposed as a consequence of findings of sexual misconduct involving a minor.

2. The pleadings relate to publications alleging sexual conduct that is said to have been engaged in by the plaintiff towards two persons (hereinafter “Claimant No 1” and “a 14-year-old Australian” respectively) without their consent or when relevantly underage. Claimant No 1 was 17 years of age at the time and is said to have been the subject of sexual conduct by the plaintiff in California, USA, where the age of consent is 18 years. The 14-year-old Australian was the subject of sexual conduct by the plaintiff which occurred in Queensland.

3. The motion, filed by the defendant on 24 July 2025, was listed before the Court and referred to the Court as presently constituted as part of the defamation list. The motion is supported by an affidavit of Jason Zafiropoulos of 24 July 2025. There is no affidavit in answer to the affidavit relied upon by the defendant and there was no cross-examination.

4. The motion seeks orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) (hereinafter “the Act”), being orders restraining publication of the names or information that would identify, or tend to identify, the names of either Claimant No 1 or the 14-year-old Australian. The plaintiff opposes the suppression and non-publication orders sought.

5. The affidavit in support refers to Claimant No 1 to whom the deponent spoke via audio visual link on 24 July 2025. From the information conveyed by Claimant No 1 to the deponent, the deponent swears to the fact that if Claimant No 1 were identified publicly, it would add further significant negative and damaging impact to her mental health to that which has already been caused by the alleged incidents described above and which are described in the SafeSport investigation and the appeal therefrom.

6. It should be noted that the reasons for decision of the Tribunal in relation to the incidence and the sanction were such that no identification of the person was made (with the exception of what seems to be an error in one paragraph). The 14-year-old Australian has not had their name published and there is no evidence before the Court that he or she would or does consent to the name being made public.

7. The provisions of section 6 of the Act require the Court, in dealing with the motion, to take into account that the primary objective of the administration of justice is to safeguard the public interest in open justice. Open justice is, generally, fundamental to the proper administration of justice and to the democratic nature of society.

8. Suppression of court proceedings should be an exception, but the orders that have been sought and were made and to which these reasons relate do not seek the suppression or non-publication of that which occurs in court. Nor does it seek the non-publication or suppression of matters relating to the hearing of the proceedings when they ultimately come before the Court. Rather, the orders that are sought seek the non-publication and suppression of two persons who it is said were victims of sexual misconduct. One of them was said to be a victim of conduct in the United States and the other in Queensland.

9. I deal first with the issue relating to the Queensland incident. The incident is said to have occurred in relation to a 14-year-old and the conduct, if true, would involve the commission of an offence under Queensland law. In Queensland, the parliament has promulgated the Child Protection Act 1999 (Qld) (hereinafter “the Queensland Act”).

10. By s 185 of the Queensland Act, the term “publish” is defined in relation to information to mean “to publish it to the public by way of television, newspaper, radio or other form of communication”. Two other provisions are relevant. They are:

194 Publication of information identifying child victim

(1)   A person must not publish identifying information about a relevant person.

Penalty—

Maximum penalty—

(a) for an individual—100 penalty units or 2 years imprisonment; or

(b) for a corporation—1,000 penalty units.

…

(4)   In this section—

"identifying information", about a relevant person—

(a)   means information that identifies, or is likely to lead to the identification of, him or her as a relevant person; and

(b)    includes—

(i)   the person’s name, address, school or place of employment; and

(ii)   a photograph or film of the person or of someone else that is likely to lead to the relevant person’s identification.

"relevant offence", in relation to a relevant person, means an offence committed or alleged to have been committed in relation to the relevant person.

"relevant person" means a person who is or was a child in relation to whom an offence was committed or is alleged to have been committed.

11. The alleged victim in Queensland is plainly a relevant person in that the alleged victim was a child in relation to whom an offence was or is alleged to have been committed. As a consequence, no person may publish identifying information about the 14-year-old Australian. It is a criminal offence in the State of Queensland.

12. The Acts Interpretation Act 1954 (Qld) provides, by s 35(1)(b), that “a reference to locality, jurisdiction or other thing is a reference to such … in and of Queensland”.

13. At least arguably, the person referred to in s 194(1) must be a resident of Queensland and/or the publication must be a publication in Queensland. It is unnecessary for the Court to determine, finally or at all, whether such is the case. It is sufficient, in the view I take, that there is arguably a situation where the prohibition in s 194 of the Queensland Act applies only to a publication in Queensland.

14. Each state and territory in Australia has enacted provisions protecting children who are said to be the subject of conduct which is an offence of a kind that is generally defined as sexual conduct. The rationale for such a provision is obvious.

15. It is renowned that victims of sexual abuse, when young, will often be traumatised by such conduct and the identification of a person who is said to be a victim of sexual misconduct is, in those circumstances, an aggravating feature of the trauma and damage that occurs as a consequence of that abuse.

16. Moreover, it is notorious that child victims of abuse (more so than even other victims of abuse) have difficulty in reporting that abuse because the publicity generated by the reporting is a detriment to their mental health and the administration of justice. The matter was dealt with by the Court of Criminal Appeal in Kwok,[1] in which, after agreeing with the reasons of Hodgson JA, I said:

“There are two quite distinct classes of exception to the rule that all proceedings are to be heard in public and able to be reported in full. The first class is the exception based upon considerations relating to the administration of justice in general. The second class occurs where specific considerations concerning a specific witness or person affects the administration of justice, e.g. where there are threats of violence.

In each class of case the central importance of justice being done in public requires that orders which implement such considerations be kept to the minimum essential to achieve that aim. In that way justice is administered openly to the extent possible.

For the reasons given by Hodgson JA this category, being witnesses who are victims of this offence, is within the first class as an exception, with informers and victims of blackmail, based upon general considerations relating to the administration of justice and whose identity should, in general, not be subject to publication.

Just as with victims of blackmail, the publication of their identity will further the criminal activity of the perpetrators and inhibit further victims from giving evidence and reporting crime.

Also, like blackmail, there may, from time to time, be exceptions to the general rule; for example, where the matters are otherwise within the public domain, but the general rule in this class is that when sought, a non-publication order would be granted.” [2]

1. R v Kwok & Ors [2005] NSWCCA 245.

2. Ibid, at [41]-[45].

17. The comments of Hodgson JA relevantly were to the following effect:

“There are recognised categories in which the publication of names may, as a matter of necessity, be prohibited, namely informers, victims of extortion and particularly blackmail, and where it is necessary for national security. The order actually made in the case of one witness in this case was made on the basis that she was an informer: although her identity was known to the accused persons, this witness was in prison and could be subject to victimisation in prison otherwise than through the knowledge of the accused, if it became known she was an informer. The primary judge accepted that this was sufficient to base an order, and distinguished her case from that of the other witnesses.

Mr. Ierace relied on the statement made by Spigelman CJ, concurred in by Handley JA and M.W. Campbell AJA, in John Fairfax v. District Court at [19], that it was well-established that the exceptions to the principle of open justice are few and strictly defined, and that the Court will not add to the list of exceptions. Mr. Ierace also referred to Spigelman CJ’s reference at [48] and [49] to the limited categories of cases in which non-publication orders can be made, and submitted that this case was not in any of those categories. He conceded in that case Spigelman CJ then undertook the task of looking independently of whether the orders made in that case were justified by necessity; but submitted that the matter relied on in this case fell far short of what could justify the orders on that basis.

I accept that the Court will not freely invent new categories of cases, but in my opinion the Court may identify categories that, while not coinciding exactly with the existing categories, are very closely analogous to them and have the same rationale for the making of non-publication orders.

As indicated by par.9 of the affidavit set out at par.[6] above, the Commonwealth Government has taken unusual and significant steps to protect victims of this kind of crime, notwithstanding that they would otherwise be liable for deportation as illegal immigrants. Clearly, this is because it is considered that otherwise victims would be unlikely to report this kind of crime. The Crown contends that, in addition to fear of deportation, the perception of victims that they will be disgraced and ostracised if they report the crime is a further strong impediment to the detection and punishment of this kind of crime, and in that way supports and furthers the criminal activity of the perpetrators.” [3]

3. Ibid at [17]-[20] (Hodgson JA).

18. In relation to Claimant No 1, the plaintiff relies upon the fact that the person was 17 years and therefore, by Australian law, would be of an age that was capable of consent. Whereas, in the United States, the age of consent is 18 years of age. However, the issue is not so simple. First, the allegation involves the supply of alcohol by the plaintiff to Claimant No 1 and the plaintiff was the coach of Claimant No 1.

19. In those circumstances there are real issues, were it to occur in New South Wales, with the application of s 61HJ(1)(c) and (h) of the Crimes Act 1900 (NSW) in that there are or may be issues associated with whether Claimant No 1 was “so affected by alcohol … as to be incapable of consenting” or participated “in the sexual activity because the person is overborne by the abuse of a relationship of authority, trust or dependence”. Further, the provisions of s 73(2) of the Crimes Act 1900 (NSW) may, were the conduct to have occurred in New South Wales, be applicable. [4]

    4. See also s 73A of the Crimes Act 1900 (NSW).

Consideration

20. The provisions of the Act are said to provide the Court with a broader discretion to order the suppression of names and/or the non-publication of identity than arises as a consequence of the Court’s general jurisdiction. The comments by the Court of Criminal Appeal in Kwok arise as a consequence of the exercise of suppression and non-publication orders made by the District Court of New South Wales in circumstances where its only power so to do was a power incidental to orders that may otherwise be made.

21. This Court’s jurisdiction arises as a consequence of its jurisdiction to do all that is necessary for the administration of justice in New South Wales [5] and the inherent jurisdiction associated with its creation as a superior court of record with general and unlimited jurisdiction by the Royal Charter of Justice.

    5. Supreme Court Act 1970 (NSW).

22. Nevertheless, suppression orders ought to be the exception and require good reason why unlimited open justice should not apply. Further, the burden is on the applicant for such orders to satisfy the Court of the necessity for them.

23. In this case, the suppression of the names of Claimant No 1 and the 14-year-old Australian does not inhibit the examination of the exercise of the Court’s jurisdiction at hearing or at any preliminary hearing. The exercise of justice may still be the subject of comment, and the judgments of the Court can be the subject of public scrutiny as may the hearings themselves.

24. It is not suggested at this stage that the hearings be held in camera. The only qualification on full open justice is the non-publication of two names who will probably be witnesses and who are said to be the victims of sexual misconduct.

25. There is good reason why the legislatures in each state and territory have prohibited the publication of identifying material of minors who have been the subject of sexual offending. These are civil proceedings, not criminal proceedings.

26. Mere embarrassment is not sufficient to warrant a suppression order. Each criminal charge creates embarrassment. However, given the uncontroverted evidence, which accords with society’s experience in relation to these traumatic events, it is appropriate for suppression orders to be made.

27. First, a suppression and non-publication order of the names of these two alleged victims creates confidence in those victims to be able to give evidence openly and without fear of exposure or ridicule. Secondly, the making of such orders encourages other persons who are or may be the victims of sexual offending to come forward and openly complain about the conduct perpetrated against them. For each of those reasons, these orders are necessary to prevent prejudice to the proper administration of justice.

28. Further, given the likely impact and/or the risk of aggravating damage otherwise occasioned by the conduct in question, assuming for present purposes that it occurred, the orders would be necessary to protect the safety of the two persons involved. Lastly, it is otherwise necessary in the public interest for the order to be made and that public interest, in this case, significantly outweighs the public interest in full open justice, being open justice involving the publication of the two names or matters identifying them.

29. Further, the Court makes it clear that in determining the necessity for these orders, the Court is taking the view that the term “necessary” is as described by the High Court in Pelechowski. [6] In Pelechowski, the plurality said:

“Dawson J concluded that recognition of the existence of the powers which an inferior court must possess by way of necessary implication will be called for:

‘whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be ‘derived by implication from statutory provisions conferring particular jurisdiction’.’

The term ‘necessary’ in such a setting as this is to be understood in the sense given it by Pollock CB in Attorney-General v Walker, namely as identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement provided in Div 4 of Pt 3 of the District Court Act. In this setting, the term ‘necessary’ does not have the meaning of ‘essential’; rather it is to be ‘subjected to the touchstone of reasonableness’.” [Footnotes omitted.] [7]

6. Pelechowski v The Registrar, Court of Appeal (1998) 198 CLR 435.

7. Ibid, [50]-[51] (Gaudron, Gummow and Callinan JJ).

30. The orders made on 25 July 2025, prohibiting the publication of anything that identifies Claimant No 1 or the 14-year-old Australian to which the pleadings refer, were a reasonable limitation on the important principle of open justice and necessary, bearing in mind the touchstone of reasonableness discussed, for the administration of justice, the protection of the safety of the two persons and otherwise in the public interest.

31. For the foregoing reasons, the suppression and non-publication orders were made today and were to be entered forthwith.

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Endnotes

Decision last updated: 28 July 2025