Background
Taylor Auerbach, a former producer on Seven Network’s Spotlight current-affairs program, left Seven in August 2023. In September 2023 the parties executed a deed that included mutual non-disparagement obligations. In March 2024, Seven’s then-Commercial Director Bruce McWilliam spoke to journalist Samantha Maiden of news.com.au, and Seven’s spokesperson later commented to the ABC’s Media Watch program, both statements referencing an incident in which a Spotlight employee had used a Seven credit card to purchase personal services and been disciplined. Auerbach — who became a witness in the high-profile Lehrmann v Network Ten defamation proceedings in 2024 — alleges those statements breached the deed’s non-disparagement clause and that the Media Watch statement defamed him. Seven denies the imputations caused serious harm and, by cross-claim, alleges Auerbach himself breached the same deed’s confidentiality and non-disparagement provisions by disclosing text messages and photographs to journalists.
By mid-2026 the proceeding was on the cusp of trial (fixed to commence 12 October 2026), with pleadings closed, discovery complete, and affidavits served. Auerbach had by then terminated his lawyers’ retainer and was appearing in person. Against that backdrop he filed a sprawling interlocutory application seeking, among other things: strike-out of Seven’s defence and cross-claim, summary judgment and final remedies including exemplary damages, injunctions against third-party publications, disqualification of Seven’s legal representatives on conflict-of-interest grounds, joinder of additional defamation respondents with an extension of the one-year limitation period, and leave to issue subpoenas on both the Court Registry and a sitting judge of the Federal Court.
Auerbach’s supporting affidavit alleged that Steve Jackson — a former Spotlight colleague now writing for The Australian, whom Auerbach admits he “had come to hate” — was publishing material in concert with Seven to prejudice his case, and that Seven’s solicitors (Addisons) and Thomson Geer (who had acted for Network Ten in Lehrmann) both held his confidential information. He also lodged a statement of charge in contempt, which the Court declined to accept for filing in May 2026 after Wheelahan J formed the provisional view it was an abuse of process on its face.
The Court’s Holding
Wheelahan J dismissed the interlocutory application in its entirety and awarded indemnity costs against Auerbach, referring the proceeding to mediation before District Registrar Farrell by 31 July 2026. On the strike-out and summary-judgment claims, the Court held that Auerbach’s evidence was so abstract and unsupported that it did not call for an answer from Seven; the Jones v Dunkel inference principle could not operate in a vacuum. Several legal theories advanced in submissions — reliance on the Australian Consumer Law’s misleading-conduct prohibition, cartel-conduct provisions, and a claim for punitive damages in defamation — had no foothold in the pleadings and were legally unavailable. The contempt allegations were “strong on language but unsupported by evidence”: Auerbach adduced no actual copies of the third-party publications he complained of, and the risk of prejudice to a civil judge-alone trial from media coverage is inherently low.
On the conflict-of-interest injunctions, the Court found the applicant had asserted without any evidence that Addisons formerly acted for him and held confidential information; the same was true of Thomson Geer, which in any event represented Network Ten in separate proceedings and is not a party here. The limitation-period extension and joinder application failed because Auerbach provided no evidence of the specific publications he wished to litigate, pleadings were closed, and trial was imminent — giving the Court no basis to conclude an extension would be just and reasonable. On the subpoena application, the Court refused leave because Auerbach had not sought it under s 16(2) of the Evidence Act 1995 (Cth), such an application would in any event be doomed to fail, and no relevance to any issue in the proceeding had been demonstrated.
The Court also noted that the statement of charge purporting to found a contempt application had never been accepted for filing — Auerbach had not sought the required judicial leave — and therefore formed no part of the proceeding. Even had it been before the Court, establishing contempt requires proof beyond reasonable doubt of a real and substantial risk of interference with justice, a high bar that the applicant’s evidence plainly could not meet in the context of a civil trial by a judge sitting alone.
Key Takeaways
- Interlocutory applications that assert serious misconduct — contempt, collusion, abuse of process — must be grounded in admissible, particularised evidence; rhetorical assertions and adjective-laden submissions will not suffice and may attract indemnity costs.
- The Jones v Dunkel inference that a party’s silence implies adverse evidence only arises where the applicant has first adduced evidence of sufficient precision to call for an answer; an abstract or speculative evidentiary case cannot trigger the inference.
- A contempt application must comply strictly with Pt 42 of the Federal Court Rules 2011 (Cth) — including filing an accepted statement of charge — and a court may block the filing under r 2.26–2.27 where the document is on its face an abuse of process.
- Punitive (exemplary) damages are not available in Australian defamation or contract claims; a claim cannot be rescued at the interlocutory stage by invoking statutory provisions (here, ACL s 18 and CCA s 45AF) that have no bearing on the pleaded causes of action.
- Leave to subpoena a sitting judge is virtually unobtainable absent compliance with s 16(2) of the Evidence Act 1995 (Cth) and a demonstrated connection between the proposed evidence and a live issue in the proceeding.
Why It Matters
The decision is a pointed illustration of how self-represented litigants can compound their procedural and strategic difficulties by filing omnibus interlocutory applications untethered from pleaded issues and unsupported by admissible evidence. By seeking final relief (declarations, damages) and drastic remedies (strike-out, contempt, judicial subpoenas) simultaneously, Auerbach invited scrutiny of every facet of his case at once — and in each instance the Court found the evidentiary foundation wanting. The indemnity costs order signals the Court’s view that the application was an improper use of interlocutory procedure with the trial only months away.
For practitioners, the judgment offers a crisp restatement of several procedural principles relevant to media-adjacent litigation: the low susceptibility of judge-alone civil trials to contempt by publication; the procedural prerequisites for contempt charges against non-parties; and the stringent requirements for disqualifying opposing counsel on conflict-of-interest grounds. With trial set for October 2026, the referral to mediation also reflects the Court’s active case management disposition under ss 37M and 37P of the Federal Court of Australia Act 1976 (Cth) to achieve a just, efficient resolution.