Federal Court of Australia

Auerbach v Nationwide News Pty Limited [2026] FCA 1308

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed by the applicant on 31 August 2026 be dismissed.

2.    Costs be reserved to the docket judge.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

PERRAM J:

1    This is an application for a writ of prohibition against a judge of this Court and an application for an interlocutory injunction to restrain publication of certain statements by the publisher of The Australian, Nationwide News Pty Ltd (‘Nationwide News’). The applications were heard by me yesterday on an urgent basis as the duty judge.

2    The applicant is Mr Taylor Auerbach. Mr Auerbach has on foot a proceeding in this Court in which he sues Nationwide News and a number of other persons, in relation to a publication in that paper on 12 August 2024. That proceeding has been docketed to Bromwich J.

3    Mr Auerbach’s applications relate to publications which occurred on Sunday 30 August 2026 and Monday 31 August 2026 which he says have a tendency to interfere with the administration of justice and, only in the case of the second publication, also to be defamatory. It is convenient to deal with these sequentially.

The Sunday 30 August 2026 Publication

4    The first publication was made in Rampart. Rampart is an online journal operated from the website www.rampart.news. On 30 August 2026 there was published on that website a video interview with a judge of this Court, the Honourable Justice Michael Lee. The interview was conducted by Mr Joe Aston, a well-known journalist, and took place in his Honour’s chambers at the Federal Court at Queens Square in Sydney. A transcript of the interview provided by Mr Auerbach became Exhibit 3 on this application. One of the matters discussed during the interview was the judge’s reasons for judgment in Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369 (‘Lehrmann’). One of the witnesses in that case was Mr Auerbach.

5    Mr Auerbach seeks the issue of a writ of prohibition directed to his Honour ‘preventing Lee J from making further public commentary about Lehrmann v Network Ten & anor until the conclusion of the proceedings’. The proceedings referred to are Mr Auerbach’s defamation proceeding against Nationwide News. Mr Auerbach submits that his Honour’s interview with Mr Aston has a tendency to interfere with the administration of justice. He says that his defamation proceeding has been prejudiced by the interview. Mr Auerbach submits that the contents of the interview will adversely affect witnesses in his defamation case and will also make it more difficult for him to obtain legal representation. He does not submit that Bromwich J himself is likely to be affected by the contents of the interview.

6    Mr Auerbach makes these submissions on two bases. First, he says that the interview depicts his Honour laughing at Mr Auerbach which I take to be a submission that the interview depicts his Honour mocking Mr Auerbach. Secondly, he submits that during the interview his Honour commented on a matter which is a live factual issue in the proceeding before Bromwich J.

7    There are three problems with Mr Auerbach’s application.

8    The first problem is that the writ sought is a writ of prohibition. It is not possible for a writ of prohibition to issue where the official to whom it is addressed has not been joined as a party to the proceeding for the official will not be bound by the writ. Since his Honour is not a party to the proceeding this is an insurmountable difficulty.

9    The second problem is that the nature of his Honour’s interview with Mr Aston is apt to suggest that his Honour was not engaged in the performance of a public function. But ‘the constitutional writs of prohibition and mandamus are available only for jurisdictional error’: Plaintiff S157/2002 v Commonwealth [2003] 211 CLR 476; 211 CLR 476 at 483 [5] per Gleeson CJ, 508 [83] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. If his Honour was not engaged in the exercise of some public power, then it is not possible that his Honour’s actions may have exceeded the limits of that power. In fact, his Honour’s remarks were made in the exercise of his rights as a private citizen and jurisdictional excess is not a relevant or informing concept.

10    I do not think that it is an answer to this problem to say, as Mr Auerbach does, that his Honour was performing a public function because the interview was conducted in his Honour’s chambers. The question of whether some act performed by a judge involves the exercise of a public power depends on the nature of the function being performed and not on the location of its performance. A judge who writes a judgment in his or her home is no less involved in the performance of a public function than one who does so in their chambers. So too, the question of whether his Honour in this case was performing a public function does not fluctuate depending on where the interview was conducted.

11    Mr Auerbach sought to circumvent this problem by submitting that a public function had been exercised because it could be inferred that the Court itself must have authorised Mr Aston and his camera equipment to enter within the secure precincts of the Court. It was, he submitted, unthinkable that this could have happened without appropriate approval from the relevant official. If so, it followed that the interview must be seen as having occurred in the performance of the Court’s own functions.

12    Assuming only for the sake of argument everything else in Mr Auerbach’s favour, I do not accept the last step in this argument. The fact that the Court as the occupier of premises grants access to a person to meet with a judge does not entail that what then occurs at the meeting involves the discharge of a public function by the judge. For example, a judge who meets with his or her accountant in their chambers is not performing a public function just as a judge who hosts a social function for former staff is not.

13    The third problem is that Mr Auerbach seeks the writ of prohibition under s 39B of the Judiciary Act 1903 (Cth). However, a court with jurisdiction to grant constitutional writs (such as this Court) may not issue them to its own members: Re Jarman; ex parte Cook [1997] HCA 13; 188 CLR 595 at 604 per Brennan J, 609 per Dawson J, 637 per Gummow J, 649-650 per Kirby J.

14    For completeness, the allegation that a judge of the Court has engaged in conduct that has a tendency to interfere with the administration of justice is a serious allegation and impacts on the reputation not only of his Honour but of the whole Court. The allegation having been made publicly it is, I think, appropriate to record that I do not think that the allegation has substance.

15    Mr Auerbach relies on two parts of the interview both of which occur during a period when Mr Aston and his Honour are discussing his Honour’s reasons for judgment in Lehrmann. The relevant portion of the transcript of the interview appears between the time markers 50:28 to 53:06:

Joe Aston: 00:50:28:     I don't know I'll be going back anytime soon, but moving to Bruce Lehrmann v. Network 10, a defamation case, but uniquely it required you to reach a civil judgement about a criminal act being the alleged rape of Brittany Higgins in her workplace at Parliament House. Along with the criminal trials of Lindy Chamberlain and George Pell, this was one of the most high profile trials in Australian history. What was it like to experience its full glare?

Lee J: 00:51:03:    You're going to think this is self-serving, but honestly, I genuinely treated it and every day just the way I would treat any other case. I didn't find that particularly difficult at all. I mean, what used to annoy me is some of a couple of comments by people making suggesting that you are somehow doing something you wouldn't ordinarily do or you're trying to show off or be witty, et cetera. Anyone who'd been in my courtroom in any other case of any other type would know that I would've dealt with that like I dealt with anything else. And so I didn't find it particularly difficult at all. I thought both the barristers, sorry, all the barristers, I should say, performed exceptionally well. And I think the trial was a good educative process for people seeing how a serious case can be done in the full glare of transparency in what I hope is a fair way.

Joe Aston: 00:52:26:     Yeah. I mean, once Mr Auerbach turned up, I'm not sure how serious the case was, but I won't ask you to make any response to that. Your judgement took two and a half hours to read. I think I'm one of the journalists in Australia who read more of your judgments than most, and I would agree that many of them, or sorry, all of them are replete with zingers, but perhaps the most memorable in this judgement was having escaped the lion's den, Mr. Lehrmann made the mistake of coming back for his hat. Do lines like these come to you like bolts from the blue or do you really labour over them?

16    Mr Auerbach’s first complaint concerns his Honour’s statement that the barristers before him in the Lehrmann litigation had all performed exceptionally well. Mr Auerbach says that there is a live issue in his defamation suit as to whether two of those barristers behaved well at all. He submits that given the respect afforded to his Honour’s office as a sitting judge of the Federal Court the remark has the potential to prejudice his proceeding.

17    I do not accept that this remark by his Honour poses any risk to the administration of justice. For a judge to say that counsel performed well in a case before him or her is a common judicial practice. Further, there is no issue on the face of Mr Auerbach’s statement of claim in the defamation proceeding which appears to relate to the performance of counsel in the Lehrmann litigation.

18    Mr Auerbach’s second complaint concerns the moment when Mr Aston said ‘I mean, once Mr Auerbach turned up, I’m not sure how serious the case was, but I won’t ask you to respond to that’. Mr Auerbach says that at that moment the camera panned to his Honour who was visibly laughing. Mr Auerbach submits that given the office his Honour holds, the fact that he was laughing at him has the potential to prejudice his proceeding.

19    I have viewed the video. I do not accept Mr Auerbach’s submission that his Honour laughed when his name was mentioned. But I would accept the lesser submission that his Honour smiled. The smile is susceptible to differing interpretations. The smile may be construed as a mocking smile or smirk, but it may also be construed as one of wry bemusement. I am prepared to accept that some ordinary viewers of the interview may interpret the smile to be a mocking smile or smirk.

20    On those facts, I do not accept Mr Auerbach’s submissions that his Honour’s conduct has a tendency to interfere with the administration of justice. It is not suggested that Bromwich J, as a professional judicial officer, will be affected by either of these matters.

21    Mr Auerbach submitted that the two matters posed a risk of affecting witnesses in his case. I take Mr Auerbach’s point that his Honour is a senior Federal Court judge and that his views are likely to be afforded much more weight than those other commentators merely by reason of his office. To this may be added, I suppose, the fact that his Honour has special knowledge of the issues concerning Mr Auerbach given that Mr Auerbach gave evidence in the Lerhmann case and his Honour dealt with his testimony: see Lehrmann at [168]-[171].

22    However, Mr Auerbach did not identify any particular witness who might be affected in this way, and it is difficult to assess the risk involved without knowing who the witnesses are (or might be). Even if that problem could be surmounted, I do not accept that his Honour’s smile has quite the effect for which Mr Auerbach contends. It seems to me unlikely that a potential witness would change their evidence or be unwilling to give evidence simply because of his Honour’s smile.

23    Mr Auerbach also submitted that the interview would make it more difficult for him to obtain lawyers (noting that he presently unrepresented). I do not accept this submission. If Mr Auerbach is able to find a lawyer who would otherwise be willing to represent him, there is no risk that that lawyer would decline to act because they had seen the interview.

24    For those reasons, the application for a writ of prohibition will be refused.

The Sunday 30 August 2026 Publication

25    Mr Auerbach also sought an injunction to restrain Nationwide News from publishing material likely to prejudice his proceeding or to repeat the defamatory imputations he is suing on in that proceeding. The basis for this application was an article published in The Australian on Monday 31 August 2026 under the headline ‘TV Veteran puts the spotlight on ABC’.

26    Mr Auerbach submits that the article was directly caused by Mr Aston’s interview with his Honour. I do not think that it is necessary to address that issue. Whether it was or not does not bear upon whether the article prejudices his proceeding or defames him.

Prejudice to defamation proceeding

27    I do not accept that the publication of this article is likely to prejudice Mr Auerbach’s proceeding against Nationwide News. That proceeding is in the docket of Bromwich J and there is no reason to think that his Honour is likely to be influenced by the article. Mr Auerbach submitted that the article might make it more difficult for him to retain lawyers. I do not see why this would be so. He also submitted that witnesses in the case might be affected by the article. But he did not identify who these witnesses were or what the suggested prejudicial effect might be. Without knowing these matters, it is impossible to assess the extent to which they are likely to be influenced by the article.

Defamation

28    The article concerns an episode of Four Corners which was an exposé on the allegedly toxic culture at Seven West Media generally and, specifically, at one of its programmes, Spotlight. Mr Auerbach was formerly employed on the Spotlight programme. His evidence in the Lerhmann trial concerned Mr Lerhmann’s interactions with the Spotlight programme and Mr Auerbach. Mr Auerbach subsequently left Seven West Media. In the Four Corners programme, Mr Auerbach is described as a whistleblower. The gist of the article in The Australian on Monday 31 August 2026 is that the Four Corners programme had not revealed other allegations concerning Mr Auerbach. Those other allegations are revealed in the article. Despite the fact that the article says that The Australian does not suggest that the allegations are true, I am prepared to accept that there is a case to be tried that the article does defame Mr Auerbach. In particular, there is a serious question to be tried that the article conveys imputations to the following effect:

(a)    Mr Auerbach was financially irresponsible in his work on the Spotlight programme;

(b)    Mr Auerbach was a drunk; and

(c)    Mr Auerbach was sexist and misogynistic.

29    These imputations are different to those alleged in the proceeding which is already on foot.

30    Mr Auerbach submits that since he had sued Nationwide News it was likely it would keep publishing adverse articles about him. Since this is the second article about Mr Auerbach published in The Australian, I am prepared to accept that there is some risk of repetition.

31    However, I do not think that the balance of convenience favours the granting of interlocutory relief. First, the imputations set out above arise from statements made to Nationwide News by an anonymous former colleague of Mr Auerbach. It is possible that Nationwide News may plead a defence of truth and there may be other defences available. None of this can be determined until trial. Secondly, there is a public interest in free speech.

32    Matters of that kind have generally been thought to mean that caution should be exercised in granting an interlocutory injunction restraining a defamation: Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 at [16]-[19] per Gleeson CJ and Crennan J, [73]-[74] per Gummow and Hayne JJ.

33    I would therefore dismiss Mr Auerbach’s application for an interlocutory injunction. Even if I had been persuaded that the balance of convenience did favour the grant of an interlocutory injunction, I would have refused the application since Mr Auerbach did not proffer the usual undertaking as to damages.

Other matters

34    Finally, Mr Auerbach also seeks in his interlocutory application an indemnity for his costs, damages including punitive damages and any other relief the Court thinks appropriate. None of these are appropriate on an interlocutory application such as the present.

35    The interlocutory application dated 31 August 2026 will be dismissed. I will reserve any question of costs to the docket judge.

Associate:

Dated:    3 September 2026

SCHEDULE OF PARTIES