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A witness from Bruce Lehrmann’s defamation trial tried to prevent Justice Michael Lee from speaking about his decision.
Taylor Roy Auerbach, former producer of Seven’s Spotlight program, was unsuccessful in his urgent interlocutory application to restrain Justice Lee from making “further public commentary” about his decision in Lehrmann v Network Ten.
Auerbach briefly gave evidence in those proceedings about Spotlight’s attempts to secure an exclusive interview with Lehrmann after he had been accused of raping Brittany Higgins.
Lehrmann has continued to deny the allegations.
The former producer alleged Justice Lee’s interview with well-known journalist Joe Aston prejudiced defamation proceedings he brought against Nationwide News for an article published by its masthead, The Australian, on Spotlight bullying claims.
Comments made by Justice Lee would adversely affect witnesses and make it “more difficult for him to obtain legal representation”, Auerbach alleged to the Federal Court.
He also claimed Justice Lee mocked him during the interview.
Justice Nye Perram was not convinced.
“For completeness, the allegations 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 allegations having been made publicly it is, I think, appropriate to record that I do not think that the allegation has substance,” Justice Perram said in his recent decision.
Justice Perram found three problems with the application, including the “insurmountable difficulty” of imposing a writ of prohibition on someone who is not a party to the proceedings.
Further, Auerbach’s claims that the interview occurred in the context of a public function was shut down, with Justice Perram finding his colleague’s meeting with Aston, even in chambers, occurred “in the exercise of his rights as a private citizen”.
The ex-producer failed to circumvent this problem by submitting the court must have authorised Aston and his camera equipment to enter a secure precinct.
“The fact that the court as the occupier of the 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,” Justice Perram said.
“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.”
The third problem was that a court with jurisdiction to grant constitutional writs cannot issue them to its own members.
Auerbach took particular issue with Justice Lee’s statements that barristers before him in Lehrmann performed “exceptionally well”, noting that the conduct of these barristers is a live issue in his proceedings against Nationwide News.
Justice Perram was not satisfied this comment would pose a risk to the administration of justice, particularly because commending barristers is a “common judicial practice”.
As for the mocking allegation, Auerbach claimed the camera panned to show Justice Lee laughing after Aston had said: “I mean, once Auerbach turned up, I’m not sure how serious the case was, but I won’t ask you to respond to that.”
Having viewed the video, Justice Perram did not accept the claim that Justice Lee laughed at the mention of Auerbach’s name, but could accept the lesser submission that he smiled.
This was “suspectable to differing interpretations”, he said.
“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,” he said.
However, Justice Perram did not accept that this conduct had a tendency to interfere with the administration of justice or would affect the decision making of his upcoming trial judge.
In the same urgent hearing, Auerbach also claimed an article in The Australian on Monday, 31 August, had the tendency to interfere with the administration of justice and be defamatory.
The article concerned an episode of Four Corners into the allegedly toxic culture at Seven West Media and Spotlight.
The Australian claimed Four Corners did not reveal allegations concerning Auerbach and went on to reveal them itself.
Justice Perram was prepared to accept there is a case to be tried, particularly on whether the article conveyed imputations that Auerbach was allegedly financially irresponsible in his work on Spotlight, he was a drunk, and he was sexist and misogynistic.
Lawyers Weekly does not suggest any of the above to be true.
While he was prepared to accept risk to Auerbach’s reputation, Justice Perram did not think the balance of convenience favoured the granting of interlocutory relief.
“First, the imputations set out above arise from statements made to Nationwide News by an anonymous former colleague of Auerbach,” Justice Perram said.
“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.”
