Lawyers for Shane Drumgold have been cautioned about using legal action against the inquiry that ended his career as a fishing expedition as they fight to expose Walter Sofronoff’s communication with journalists.
Justice Stephen Kaye drew the line in the sand as he heard arguments from parties involved about whether almost 10 hours of phone calls, text messages and emails from Mr Sofronoff, the inquiry chair, and reporters, particularly The Australian’s Janet Albrechtsen, were admissible.
“This is not an inquiry into the inquiry. This is strictly a judicial review on very confined administrative law grounds,” Justice Kaye said.
Mr Drumgold, the former ACT director of public prosecutions, last year launched legal action to quash the board of inquiry’s findings about his handling of the Bruce Lehrmann rape trial.
On Wednesday, the court was told Mr Sofronoff made 65 phone calls to journalists prior and during the inquiry.
Fifty-five of those calls, totalling more than 7½ hours, were with The Australian, compared with less than 1½ hours with reporters from other outlets.
Barrister Dan O’Gorman argued the records showed Mr Sofronoff had an apprehension of bias towards Mr Drumgold during the inquiry.
Mr O’Gorman said Mr Sofronoff broke his own media guidelines that he issued when he was appointed chair.
However, the court was told that Mr Sofronoff, via an affidavit, maintained his communication with Ms Albrechtsen and other reporters was above board and in line with his obligations as inquiry chair.
Mr Drumgold’s lawyers want the chance to test that in court and put Mr Sofronoff on the stand for cross-examination.
Mr Kaye has yet to rule on whether the communication with journalists would be admissible or if cross-examination would be able to take place, but indicated this would be unlikely.
But he did caution Mr O’Gorman against using the legal action as a “fishing expedition”.
Lawyers for Mr Sofronoff and the ACT government raised concerns about the communication records being admissible in court, questioning their relevance.
Mr Drumgold is arguing he was denied natural justice, did not receive a fair hearing and some of Mr Sofronoff’s findings were “legally unreasonable”.
He is requesting the court quash Mr Sofronoff’s findings or declare the report invalid.
Mr Lehrmann pleaded not guilty to sexually assaulting his former colleague Brittany Higgins at Parliament House in 2019.
His trial was aborted in October 2022 due to jury misconduct and a planned retrial was abandoned amid concerns about Ms Higgins’ mental health.
The charge was dropped and there have been no findings made against Mr Lehrmann.
Mr Sofronoff found the decision to charge and prosecute Mr Lehrmann was the correct course of action but made several serious findings of misconduct against Mr Drumgold.
But Mr Sofronoff generated his own controversy when it was revealed the chair selectively leaked a copy of his final report to journalists ahead of handing it to the ACT government.
The matter will return to court for trial on February 13.