Auerbach v Seven Network (Operations) Ltd [2026] FCA 799.

The case in summary.

Taylor Auerbach is a former producer on the Seven Network's Spotlight program. He is suing Seven for defamation and for breach of a deed the parties signed in September 2023, over statements made to a journalist and to the ABC's Media Watch about the misuse of a company credit card. Seven denies the claims and cross-claims against Mr Auerbach for breach of the confidentiality and non-disparagement terms in the same deed. The proceeding is fixed for trial from 12 October 2026. Pleadings are closed and the evidence is largely filed. The claims on both sides are allegations and remain to be decided at trial.

Mr Auerbach, now self-represented, filed an interlocutory application seeking a long list of orders. Wheelahan J refused all of them, dismissed the application, ordered indemnity costs, and referred the matter to mediation to be completed by 31 July 2026. You can read the published reasons on the Federal Court website. What follows is about the legal principles the judgment applies, which hold good well beyond this case.

What was the applicant asking the Court to do?

The application ran to nine groups of orders. In short, Mr Auerbach asked the Court to strike out Seven's defence and cross-claim in full, enter judgment for him, grant a declaration and damages including aggravated and exemplary damages, injunct a group of people and law firms from publishing anything about the case or from acting for one another, extend the defamation limitation period and join new parties, grant leave to subpoena the Court's registry and a sitting judge, and award him indemnity costs.

That is a great deal to seek on an interlocutory application, and the width of the relief was part of the problem. Final remedies, such as a declaration and damages, are not ordinarily handed out on an interlocutory basis before a trial. The Court noted that many of the submissions were broad, hard to follow, and heavy on adjectives, with Seven's pleadings described as "inexplicable", "improper", "unsustainable", "scripted" and "often deranged". Strong words are not evidence.

Why the strike-out and summary judgment failed.

A court can strike out a pleading under rule 16.21 of the Federal Court Rules if it is scandalous, frivolous, vexatious, embarrassing, discloses no reasonable cause of action, or is otherwise an abuse of process. It can give summary judgment under section 31A of the Federal Court of Australia Act 1976 (Cth) if the other side has no reasonable prospect of defending or prosecuting the claim. Both are powerful tools, and both are used sparingly.

The reason is that an order of this kind ends a party's case without a trial. As Dixon J put it in Cox v Journeaux [No 2] (1935) 52 CLR 713, and as the High Court has repeated since, the power to stop a proceeding as vexatious or an abuse is used only in the clearest cases. Wheelahan J found that Seven's pleadings raised triable issues: the contextual truth defence, questions of causation on the alleged breach of the non-disparagement clause, the serious harm element under section 10A of the Defamation Act 2005 (NSW), and whether Mr Auerbach himself breached his confidentiality obligations. Those are matters for trial, not for summary disposal.

Two side points are worth keeping. First, exemplary or punitive damages are not available in defamation under section 37 of the Defamation Act, nor for breach of contract. Second, the applicant relied on Jones v Dunkel (1959) 101 CLR 298, saying Seven's failure to file answering evidence should count against it. That inference only arises where there is evidence that calls for an answer. The Court found the applicant's own evidence was pitched at too high a level of abstraction to require one.

When does a publication become contempt of court?

Much of the application rested on a claim that media companies and lawyers had committed contempt by publishing material designed to prejudice Mr Auerbach in his case. The judgment sets out the law plainly. A charge of contempt, civil or criminal, is a serious matter and must be proved beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525. The starting point on sub judice contempt is the judgment of Jordan CJ in Ex parte Bread Manufacturers Ltd (1937) 37 SR (NSW) 242: a publication that tends to interfere with the administration of justice by preventing a fair trial is a contempt.

The threshold is not a low one. There must be a real or substantial risk of interference, or a real and definite tendency to interfere with the course of justice, not a remote risk. And the mode of trial matters. In a criminal jury trial, prejudicial publicity carries a real danger because jurors are lay people who may absorb what they read. In a civil trial by judge alone, the risk is treated as low, because a judge is trained to decide on the evidence and is not readily swayed by media coverage. There is also a competing public interest in the open discussion of public affairs and in fair and accurate reporting of court cases, which can pressure or embarrass a party without crossing into contempt.

Why the contempt argument went nowhere.

Two things sank it. The first was procedure. Under Part 42 of the Federal Court Rules an allegation of contempt must be brought by application accompanied by a statement of charge in Form 137 that specifies the contempt with enough particularity for the person to answer it. Mr Auerbach lodged a statement of charge, but the Court formed the view it was on its face an abuse of process and directed that it not be accepted for filing without leave. He did not seek leave, so no charge was ever before the Court.

The second was evidence. The applicant did not put the actual publications before the Court. He set out fragments said to be quotations, stripped of context, none of which referred to the proceeding or to him. Without the publications there was no way to find a real or substantial risk of interference, and no way to link Seven to anything published by others. As the Court put it, the allegations were strong on language but unsupported by evidence. An injunction to restrain an apprehended contempt needs a prima facie case and a balance of convenience that favours the order, judged with the same caution that applies to a finding of contempt at trial. None of that was made out, and the terms of the injunction sought were far too broad in any event.

Can you stop the other side's lawyers from acting?

A court does have power to restrain a solicitor or barrister from acting, but the grounds are confined. One is the apprehended misuse of a former client's confidential information, where there is a real and sensible possibility of misuse: Porter v Dyer [2022] FCAFC 116. That usually requires the party to identify the confidential information with some precision. Another is the Court's power to protect the integrity of the judicial process, which asks whether a fair-minded, reasonably informed member of the public might think a lawyer should not act. Some Victorian authority has also treated a solicitor as owing a continuing duty of loyalty to a former client, but that view has not been followed in the Federal Court.

Here the applicant asserted that Seven's solicitors, and the solicitors for a non-party media company, had once acted for him and held his confidential information. He put on no evidence of any retainer and identified no confidential information at all. A bare assertion that a firm once acted for you does not found a conflict, and a firm has no ongoing duty of loyalty that would stop it acting against a former client in the Federal Court. The application to restrain the lawyers failed on every limb.

Can you subpoena a judge or extend a defamation limitation period?

No, and not on these facts. The applicant sought leave to subpoena a sitting judge and the Court's registry to probe an earlier judgment. Under section 16(2) of the Evidence Act 1995 (Cth) a judge is not compellable to give evidence about a proceeding without the court's leave, and any such application here would fail. A judge's reasons are those the judge publishes. Compelling a judge to explain a decision from the witness box would cut across judicial independence, a point traced back through the authorities to the late seventeenth century.

The applicant also asked to extend the one-year defamation limitation period in section 14B of the Limitation Act 1969 (NSW) and to join new parties over fresh publications. Section 56A allows an extension of up to three years where the plaintiff shows it is just and reasonable. That failed too: the proposed publishers were not before the Court, the publications were not identified, there was no evidence that an extension would be just and reasonable, and adding parties and claims to a matter already set down for trial would cut against the overarching purpose in section 37M of the Federal Court of Australia Act.

What the case shows about interlocutory applications.

The lesson is not about media law or defamation. It is about discipline. An interlocutory application has to match the relief to the evidence and to the stage of the case. Final remedies are for trial. Serious charges, contempt above all, have to be brought the right way and proved to the criminal standard. If you want to restrain a lawyer, you have to identify the confidential information and prove the retainer. If you want to enjoin a publication, you have to tender the publication. And a court set down for trial will not welcome new parties and new claims filed at the door.

The indemnity costs order is the sting in the tail. Costs on an indemnity basis, rather than the usual party and party basis, are ordered where a party has run a case that should never have been brought, or has conducted it unreasonably. A sweeping application built on assertion rather than evidence is the kind of conduct that attracts it. The reference to mediation is the counterweight: the Court has pushed the parties toward resolution before the October trial.

Where this fits with our work.

We act in criminal and quasi-criminal matters, and contempt of court is one of them. A charge of contempt is proved to the criminal standard and carries real penalties, and it has to be brought and answered with the same care as any criminal charge. If you are facing an allegation of contempt, or you need to respond to one, the framework in this judgment is the starting point. Our note on working with counsel explains how serious matters are run with a barrister from the outset.

Frequently asked.

What is the standard of proof for contempt of court in Australia?

Contempt of court, whether civil or criminal, must be proved beyond reasonable doubt. The High Court said so in Witham v Holloway (1995) 183 CLR 525. A charge must also be brought the right way, with a statement of charge that specifies the contempt with enough particularity for the person to answer it.

When does a media publication amount to contempt of court?

A publication is a contempt if it has a real or substantial risk of interfering with the fair trial of a proceeding, not just a remote risk. For a civil trial by judge alone the risk is treated as lower, because a judge is not readily swayed by media coverage. Fair and accurate reporting of public affairs is protected even if it embarrasses a party.

Can you have the other side's lawyers removed for a conflict of interest?

Sometimes, but not on a bare assertion. A court can restrain a lawyer who holds a former client's confidential information where there is a real and sensible possibility of misuse, or to protect the integrity of the judicial process. The party must identify the confidential information and put on evidence. An unsupported claim that a firm once acted for you is not enough.

Can you subpoena a judge to give evidence about their decision?

No. Under section 16(2) of the Evidence Act 1995 (Cth) a judge is not compellable to give evidence about a proceeding unless the court grants leave, and a judge's reasons are those that are published. Compelling a judge to explain a decision would undermine judicial independence.

Are exemplary or punitive damages available for defamation?

No. Section 37 of the Defamation Act 2005 (NSW) removes exemplary or punitive damages for defamation. They are also not available for breach of contract. That was one reason the applicant's claim for punitive damages could not succeed.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 3 July 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

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