Background
Taylor Roy Auerbach has a pending Federal Court defamation case against Nationwide News Pty Ltd and others over an August 2024 publication in The Australian. That case is docketed to Bromwich J.
In an urgent interlocutory application, Mr Auerbach sought a writ of prohibition preventing Lee J from making further public comments about Lehrmann v Network Ten Pty Ltd, in which Mr Auerbach had been a witness. The application followed an online interview in which Lee J discussed that case. Mr Auerbach also sought to restrain Nationwide News from publishing material said to prejudice his pending case or repeat alleged defamatory imputations, following a later The Australian article about him.
The Court’s Holding
Perram J dismissed the application. The proposed writ of prohibition could not issue because Lee J had not been joined as a party; the interview remarks were made in his Honour’s capacity as a private citizen rather than in the exercise of public power; and the Federal Court could not issue constitutional writs against one of its own judges.
The Court also rejected the assertion that the interview had a tendency to interfere with the administration of justice. It found that Lee J had not laughed when Mr Auerbach was mentioned, although he had smiled; even if some viewers could regard the smile as mocking, there was no identified or realistic risk that witnesses, prospective lawyers, or the docket judge would be improperly affected.
As to Nationwide News, Perram J found no demonstrated risk that the later article would prejudice the pending proceeding. Although there was a serious question to be tried that the article conveyed imputations that Mr Auerbach was financially irresponsible, a drunk, and sexist or misogynistic, the balance of convenience did not favour a prior-restraint injunction. Possible defences, including truth, and the public interest in free speech weighed against relief; Mr Auerbach had also not offered the usual undertaking as to damages.
Key Takeaways
- A writ of prohibition cannot bind a judicial officer who has not been joined as a party.
- Constitutional writs address jurisdictional error in the exercise of public power, not a judge’s private comments.
- A serious question that a publication is defamatory does not itself justify an interlocutory restraint on publication.
Why It Matters
The decision underscores the exceptional nature of pre-publication restraints in defamation matters. Even where a claimant establishes an arguable defamatory meaning and a risk of further reporting, courts will give substantial weight to potential defences and freedom of expression.
It also draws a firm line between judicial functions and a judge’s private conduct, while requiring concrete evidence—not general concern—to establish that public commentary will interfere with a separate proceeding.