The Federal Court denied an urgent request to stop Justice Lee from speaking publicly about his ruling in the Lehrmann v Network Ten case, upholding the judge’s right to comment.
Application to curb judicial commentary rejected
Taylor Roy Auerbach, a former producer for Seven’s Spotlight program, filed an interlocutory application seeking a writ of prohibition to bar the judge from further remarks. He argued that Lee’s interview with journalist Joe Aston could prejudice ongoing defamation proceedings he launched against Nationwide News.
Auerbach testified that Spotlight had tried to secure an exclusive interview with Lehrmann after the former was accused of raping Brittany Higgins. Lehrmann continues to deny the allegations.
The producer also claimed the judge’s comments would make it harder for witnesses to appear and could impede his ability to find legal representation. He added that Lee appeared to mock him during the televised interview.
Judge Perram outlines procedural obstacles
Justice Nye Perram described the allegations as serious but concluded they lacked substance. He identified three fundamental problems with the application.
First, imposing a writ of prohibition on someone who is not a party to the case presents an “insurmountable difficulty.” The court cannot compel a judge in that manner.
Second, the interview was deemed a private‑citizen activity, not a public function. Even though the meeting occurred in chambers, Perram held that granting access to a journalist does not transform the encounter into an official court proceeding.
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Third, a court with authority to issue constitutional writs cannot direct those writs at its own members. The principle safeguards judicial independence.
These procedural hurdles, according to the judge, outweighed any perceived risk to the administration of justice.
Allegations about interview conduct examined
Auerbach focused on Justice Lee’s praise of barristers appearing before him, describing the comment as “exceptionally well” performed. He argued that the quality of those lawyers was a live issue in his defamation case against Nationwide News.
Justice Perram noted that commending counsel is a routine judicial practice and did not view it as a threat to fairness. The judge found no evidence that the praise would influence the upcoming trial.
The producer also alleged that the judge laughed when Aston mentioned Auerbach’s name. Video review showed Lee smiling, not laughing. Perram said a smile could be read as “wry bemusement” or as a “mocking smirk,” but that interpretation alone did not demonstrate interference.
He concluded that the conduct, even if perceived as mocking, did not have a tendency to affect the administration of justice or the decision‑making of the trial judge.
While the court acknowledged the possibility of reputational harm, it stressed that such concerns must be balanced against the fundamental right to free speech.
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In my view, the decision shows the delicate line courts walk between protecting litigants’ interests and preserving open discourse about judicial actions. The ruling suggests that unless a clear, demonstrable risk to proceedings exists, courts will err on the side of allowing judges to speak.
Defamation claim against Nationwide News proceeds
In the same hearing, Auerbach argued that an article published in The Australian on 31 August could also interfere with justice and was defamatory. The piece discussed a Four Corners episode on alleged toxic culture at Seven West Media and Spotlight, asserting that the program failed to reveal accusations against Auerbach before exposing them.
Justice Perram said there is a legitimate case to be tried on whether the article implied that Auerbach was financially irresponsible, intoxicated, sexist, or misogynistic. The imputations stem from statements made to Nationwide News by an anonymous former colleague.
The judge highlighted that Nationwide News could raise a defence of truth and possibly other defenses, which can only be evaluated at trial. He found the balance of convenience did not support granting immediate relief.
“There is a public interest in free speech,” Perram remarked, noting that any interim order must not unduly restrict media commentary before a full hearing.
The court’s refusal to issue a prohibition leaves Justice Lee free to continue commenting on the Lehrmann decision, while Auerbach’s defamation claim moves forward to be resolved in due course.