Introduction: The Kerry Case

A decision of the NSW Supreme Court in Kerry v The New South Wales Ice Skating Association Inc [2025] NSWSC 833 provides important guidance on when courts will grant suppression orders to protect the identities of minors and alleged victims of sexual misconduct in defamation proceedings. The case involved an Australian Olympian and coach who sued for defamation after the defendant published a note to its members about sanctions imposed by the US Centre for SafeSport. The sanctions related to findings of sexual misconduct involving two individuals: a 17-year-old in California (where the age of consent is 18) and a 14-year-old in Queensland. The Court granted suppression orders protecting both individuals' identities, despite the plaintiff's opposition.

The Principle of Open Justice

The starting point for any discussion of suppression orders is the fundamental principle of open justice. As Rothman J noted in Kerry, the primary objective of the administration of justice is to safeguard the public interest in open justice, which is "generally, fundamental to the proper administration of justice and to the democratic nature of society."

However, this principle is not absolute. The Court of Criminal Appeal in R v Kwok & Ors [2005] NSWCCA 245 recognised two distinct classes of exception:

Exceptions based on general considerations relating to the administration of justice
Exceptions where specific considerations concerning a specific witness or person affect the administration of justice

Special Considerations for Sexual Offence Victims

Courts have long recognised that victims of sexual offences, particularly minors, warrant special protection. In Kwok, the Court of Criminal Appeal explained that there are "recognised categories in which the publication of names may, as a matter of necessity, be prohibited," including victims of sexual offences alongside informers and victims of blackmail.

The rationale is compelling. As the Court observed in Kwok:

Publication of victims' identities can further the criminal activity of perpetrators[^1]
It inhibits victims from giving evidence and reporting crimes
Child victims particularly face difficulties reporting abuse when publicity becomes a detriment to their mental health

[^1]: This principle recognises that perpetrators may use the threat of public exposure as a tool of control over their victims. In cases involving blackmail or sexual offences, the fear of public identification can prevent victims from reporting crimes or cooperating with authorities, thereby allowing perpetrators to continue their criminal conduct. As noted in Kwok, this creates a parallel with blackmail cases where "the publication of their identity will further the criminal activity of the perpetrators and inhibit further victims from giving evidence and reporting crime."

Legislative Protections for Child Victims

The Kerry case highlighted how each Australian state and territory has enacted specific protections for child victims of sexual offences. In Queensland, the Child Protection Act 1999 makes it a criminal offence to publish identifying information about a "relevant person" - defined as a child in relation to whom an offence was committed or alleged to have been committed. Section 194 provides for significant penalties: up to 100 penalty units or 2 years imprisonment for individuals.

This legislative framework reflects society's recognition that child victims of abuse are often traumatised by the conduct itself, and that public identification represents "an aggravating feature of the trauma and damage that occurs as a consequence of that abuse."

The Test for Suppression Orders

When determining whether to grant suppression orders, courts apply the test of "necessity" - but this doesn't mean "essential." As the High Court clarified in Pelechowski v The Registrar, Court of Appeal (1998) 198 CLR 435, necessary in this context means orders that are "reasonably required" or "legally ancillary" to the accomplishment of justice. The term is "subjected to the touchstone of reasonableness."

In the defamation context, courts will consider whether suppression orders are necessary to:

Prevent prejudice to the proper administration of justice[1]
Protect the safety of persons
Serve the public interest

Practical Implications for Defamation Proceedings

The Kerry decision demonstrates that suppression orders in defamation cases:

Do not prevent the examination of the court's jurisdiction or inhibit public scrutiny of judgments
Can be limited to protecting specific identities while maintaining transparency of proceedings
Create confidence in victims to give evidence openly without fear of exposure
Encourage other victims to come forward

Importantly, mere embarrassment is insufficient to warrant suppression. As Rothman J noted, "Each criminal charge creates embarrassment." The court requires evidence of genuine harm or impediment to justice.

Balancing Competing Interests

Courts must carefully balance the public interest in open justice against other compelling interests. In Kerry, the Court found that protecting the identities of alleged sexual misconduct victims - particularly the 14-year-old - significantly outweighed the public interest in full disclosure of names.

This balancing exercise recognises that suppression orders can actually serve the administration of justice by:

Ensuring witnesses feel safe to give evidence
Maintaining public confidence in the justice system's ability to protect vulnerable witnesses
Preventing further trauma to victims who have already suffered harm

Conclusion

The Kerry decision reinforces that while open justice remains the cornerstone of our legal system, courts retain discretion to make limited suppression orders where necessary to protect vulnerable witnesses and ensure the proper administration of justice. For practitioners in defamation matters involving allegations of sexual misconduct or minor witnesses, early consideration should be given to whether suppression orders may be appropriate. The key is demonstrating not just potential embarrassment or discomfort, but genuine necessity based on harm prevention and the broader interests of justice.

When seeking such orders, practitioners should be prepared to provide concrete evidence of potential harm and frame their applications within the established categories recognised by the courts. The burden remains on the applicant to satisfy the court of necessity, but where minor victims of alleged sexual offences are involved, courts will give serious consideration to protective orders that maintain the substance of open justice while shielding vulnerable individuals from unnecessary harm.

Footnote:

This principle recognises that perpetrators may use the threat of public exposure as a tool of control over their victims. In cases involving blackmail or sexual offences, the fear of public identification can prevent victims from reporting crimes or cooperating with authorities, thereby allowing perpetrators to continue their criminal conduct. As noted in Kwok, this creates a parallel with blackmail cases where "the publication of their identity will further the criminal activity of the perpetrators and inhibit further victims from giving evidence and reporting crime."