Kerry v NSW Ice Skating Association Incorporated

HIS HONOUR: By his Amended Statement of Claim filed on 25 May 2025, the plaintiff sues the defendants for damages for defamation. The defamatory matter relied on is the publication of an email of and concerning the plaintiff on 16 May 2024. The email was distributed widely to the first defendant's membership of some 797 people.

The plaintiff alleges that the email carried ten defamatory imputations of sexual misconduct of the most serious kind, given it is said to have involved a minor or minors. In addition to the questions of whether the imputations are conveyed, specific defences of justification, contextual truth, qualified privilege both at common law and under the Defamation Act 2005 (NSW), public interest, publication of a public document, and fair and accurate report of quasi-judicial proceedings are raised and relied upon.

The particulars of justification and contextual truth appended by Schedule B to the Defence run to 44 paragraphs, not including subparagraphs, over five pages. They concern the plaintiff's alleged sexual involvement with three young females when the plaintiff was in his late teens or early twenties.

The present dispute is about interrogatories the defendants wish to administer to the plaintiff to investigate the serious harm issue, and the plaintiff's involvement with the aforementioned three young females. After a process of negotiation, the body of interrogatories initially proposed have now been reduced to 15 in number, many divided into a number of what I will refer to as sub-interrogatories. Of these, interrogatories 2 to 6 and 12 to 15 remain in dispute.

The first group, that is 2 to 6, concern the plaintiff's relationship with a young woman referred to by the pseudonym "Claimant 1". The second group of 12 to 15 are concerned with his relationship with a young female referred to as the "14 year old Australian" for the protection of her identity. Both these pseudonyms are phrases adopted to give effect to suppression and non‑publication orders made in the proceedings.

Mr DJ Helvadjian of counsel who appears for the defendants/applicants and Mr NG Olson of counsel who appeared for the plaintiff/respondent favoured me with careful and detailed written and oral submissions. During oral argument I was taken to what counsel regarded as the leading authorities.

Without intending any disrespect to counsel or their arguments, in the interest of expedition I propose to be guided by clause 22 of Practice Note Supreme Court Common Law 4 (“PNCL4”) governing the practice in the defamation list to give my reasons in short form. In doing so, I have been greatly assisted, as I hope I have made clear, by the detailed arguments I have received.

The rules governing the administration of interrogatories are found in the Uniform Civil Procedure Rules 2005 (NSW), and in particular rule 22.14, which raises a test of necessity. PNCL 4 cl 19 is also relevant. It indicates that in the defamation list, interrogatories will only be permitted to the extent to which it is demonstrated that they are necessary for the resolution of the real issues in dispute. There appears to be no real difference between those two tests. Moreover, it was common ground between counsel, and I accept, that "necessary" does not mean "essential", but rather, is concerned with a test of reasonable necessity in the interests of justice for the resolution of the issues between the parties.

Among the authorities I was taken to, Mr Helvadjian referred to the decision in Cassegrain v Gerard Cassegrain and Co Pty Ltd [2011] NSWSC 241 (“Cassegrain”). Ward J (as the President then was) fully analysed the requirements of adjectival law necessary to enliven an order for interrogatories. I think it sufficient to point out from Mr Helvadjian's written submissions, derived from [26], [30], [40] and [53] of her Honour's judgment, the following: an order for interrogatories may be reasonably seen as necessary if the interrogatory seeks to: obtain an admission of fact from the other party that is relevant to a matter raised by the pleadings (even if the interrogating party already has some knowledge of the fact from other sources); where admissions render it unnecessary to adduce evidence; or if the answer to an interrogatory is likely to reduce or remove the need for the calling of additional evidence.

While that statement of principle is not exhaustive, I think it is central to the nature of the dispute between the parties. Among the authorities to which I was referred, are a number of cases relevant to the question of when leave to administer interrogatories will be granted in defamation cases. Of those, I have found the decision of Simpson J (as her Honour then was) in Bryson v Casey and Anor [2002] NSWSC 636 (“Bryson”) most apposite not least because the facts in that case are in an area similar to the factual dispute in the present case. At [9], her Honour said:

At Bryson [19], Simpson J said:

It is, of course, essential, as that last aspect of the quote makes clear, that the interrogatories seek to elicit evidence relevant to the issues of fact as defined by the pleadings tending to prove, if accepted, directly or indirectly, some fact in issue. A matter may properly be the subject of an interrogatory even if the matter would not be relevant at the trial for the purpose of section 55 of the Evidence Act 1995 (NSW) if it otherwise led to, or facilitated, further inquiries which themselves would likely produce relevant evidence.

Having said that, it is also important to bear in mind, as with other forms of interlocutory procedure for the purpose of gathering evidence, fishing, as it is put, is entirely impermissible. The arguments of both counsel are extensive and detailed and, understandably, focus upon the contents of the defendant's particulars of justification and contextual truth. I think it was important that Mr Olson drew to my attention to certain aspects of those particulars which anchor them in time and place.

The disputed particulars relate to the plaintiff's alleged involvement with two of the three specified teenage girls. So far as Claimant 1 is concerned, paragraph 46 of the particulars states as follows:

So far as the 14 year old Australian girl is concerned, similarly, paragraph 51 is in the following terms:

The process of argument of the dispute and perhaps in part of the so‑called Socratic dialogue elicited that the plaintiff's main complaint to the interrogatories, leaving aside for the moment interrogatory 6, related to the failure of the draftsman to anchor the interrogatories in time and place in the same way as the particulars provided in the defence.

Mr Helvadjian took issue with a need to anchor the interrogatories that way. He pointed out, again by reference to the amplitude of the statements I have quoted from his written submissions which are derived from Ward J's judgment in Cassegrain, that the purpose of interrogatories was broader. He also referred me to paragraph 75 of schedule B which, if I may say so, in a conventional way reserved the right to provide further particulars after the completion of the usual interlocutory proceedings. Whereas that is a common pleader's device, it does not seem to me that such a broad statement of itself entitles a defendant or, where appropriate, a plaintiff, to launch a process of detailed interrogation of the opposite party on matters which may not be firmly rooted in the pleadings.

It seems to me that such a reservation would not generally permit the exploration of alternative factual scenarios not grounded in the pleadings. To permit an approach of that type, with respect, would I think be contrary to the overriding purpose and considerations of proportionality which find expression in sections 56 to 60 of the Civil Procedure Act 2005 (NSW).

Mr Olson in his written submissions reminded me of Simpson J's emphatic dictum about the need for those drafting interrogatories to keep both eyes firmly fixed on the issues thrown up by the pleadings: Cotter v John Fairfax Publications Pty Ltd [2001] NSWSC 58, [16]. Bearing her Honour's adjuration in mind, it seems to me that the essential features of the defendant's case in justification as pleaded in the defence, as I said in my introductory remarks relates to the allegation that the plaintiff had sexual intercourse and other sexual contact of various kinds with young females who were at the time of that contact, minors in the sense of being below the age of sexual consent.

The three young females, the subject of the defendant's case, are known persons. Their age and the places were relevant contact took place are known. As Mr Olson pointed out, the age of consent may vary from jurisdiction to jurisdiction, and it is fundamental to the case which the plaintiff has to meet in relation to justification that the defendant's case, as the particulars make clear, be anchored, as I have said before, to the time and place alleged because it is by reference to those matters that the essential element of the alleged sexual misconduct is determined; that is to say, that at the time and place where the events are alleged to have occurred, the young woman was a minor.

That consideration is essential, as I have said, to the argument about the truth of the imputations relied upon or asserted by the plaintiff, and adopting that approach, I am of the view that interrogatories in the nature of interrogatories 2 to 5 may be asked, but only to the extent to which the plaintiff is interrogated about events which occurred in the State of California between about August 2016 and July 2017. Likewise, interrogatories 12 to 15 or interrogatories like them may be put to the plaintiff, but only to the extent to which they are, as I have said, anchored in the consideration that the matters about which the plaintiff is interrogated took place in early December 2011 in the State of Queensland.

I then turn to interrogatory 6 which is of a slightly different nature. It does not deal directly with sexual misconduct between the plaintiff and Claimant 1 when she was a minor for the purpose of Californian law, but it is at least indirectly relevant to the plaintiff's state of mind during his relationship with Claimant 1. It asks a series of questions about whether the plaintiff took Claimant 1 to see a lawyer, and his motivation for doing so. Clearly, the interrogatories are founded in an understanding of the evidence that Claimant 1 is likely to give if called to give evidence in what would be a jury trial in this Court.

It does seem to me that, for instance, assuming the information provided is that the plaintiff took Claimant 1 to see a lawyer for the purpose of signing some kind of non‑disclosure agreement or the like, that would be conduct which would be capable of betraying a certain state of mind or knowledge of the plaintiff about the appropriateness of his sexual relationship with Claimant 1. It seems to me that interrogatories of that type are covered broadly by what Ward J had to say about securing evidence helpful to the interrogating party's case.

It is evident to me, as I discussed with Mr Helvadjian, that when one looks at the type of information which interrogatories 2 to 5 and interrogatories 12 to 15 seek to elicit, like interrogatories 7 to 11 concerning a different claimant, the answers could well make it unnecessary to call one or other of those witnesses and to save them the ordeal of reliving the events of which they say they are able to give evidence. These are considerations like those which activated Simpson J's decision in Bryson, and in my judgment that is a legitimate use of interrogatories, if I have not made that clear already.

There was debate before me about the significance of the disclosure by way of discovery by the plaintiff of an affidavit prepared and used by him in giving evidence in another place about his relationship with Claimant 1. Although in some of the defamation cases ultimately to be heard by a jury to which I was taken, the judges thought it significant that because in trial by jury the witnesses would give their evidence viva voce, the absence of a prior sworn statement enlivened or enhanced the defendant's case for leave to administer interrogatories: see for example Wood v Nationwide News Pty Ltd [2014] NSWSC 1944. I did during my discussion with counsel confess that I had trouble understanding the justification for that position.

It seems to me the fact that an affidavit of the plaintiff has been discovered, which gives an account of his relationship with Claimant 1 which is very significantly at variance with the case which the defendants seek to make, in any way reduces what might otherwise be their entitlement to interrogate given that I have found that the test of necessity is satisfied. It is quite clear to me that the defendant is not obliged to accept the truthfulness or accuracy of a plaintiff's account whether sworn or unsworn; the defendant is entitled on proper grounds to challenge both the accuracy of the account and its credibility, as I say if there is a proper foundation for doing so, and I would not regard the availability of an earlier sworn account of the plaintiff as being a matter which advances the plaintiff's case in opposing the interrogatories.

My decision, then, is that the interrogatories may be administered, but they need to be limited to the circumstances I have referred to in sch B, and it will be necessary for that reason for them to be redrawn.

After the delivery of these reasons and at my direction, counsel sent my Associate proposed consent orders giving effect to these reasons fixing a timetable for the administration of the defendants’ interrogatories as amended in accordance with my reasons. I make the following orders: