Legal documents have officially been served against the Board of Inquiry, ACT Attorney-General Shane Rattenbury and the Territory by outgoing Director of Public Prosecutions Shane Drumgold SC.
Mr Drumgold resigned in the wake of the Sofronoff Report findings from the Board of Inquiry after his position was deemed untenable.
The report made several adverse findings against Mr Drumgold; however, he has disputed them.
In documents tabled to the ACT Supreme Court, Mr Drumgold has claimed the report, or alternatively, the decisions made in respect to him in the report, are “invalid and of no effect”.
Mr Drumgold has claimed the Board of Inquiry had failed to comply with section 17 of the Inquiries Act 1991, referring to the premature release of the report to sections of the media by Mr Sofronoff.
It’s also been claimed the Board of Inquiry failed to accord him “natural justice” in some of the findings.
“The [Board of Inquiry] failed to accord the Plaintiff [Mr Drumgold] natural justice by failing to give the Plaintiff a fair hearing in respect of the findings [made against him],” the documents stated.
These findings included that Mr Drumgold directed “a junior lawyer in his office to make a misleading affidavit”, “preyed on the junior lawyer’s inexperience”, “egregiously abused his authority and betrayed the trust of his young staff member”, that he “deliberately advanced a false claim of legal professional privilege” and that “Mr Drumgold knowingly lied to the Chief Justice”.
Mr Sofronoff also found that Mr Drumgold’s description of complainant Brittany Higgins, when he announced the prosecution would not continue with the case against Mr Lehrmann following the case’s mistrial, were “improper and should not have been made… the decision was bad” and that “[his comments] undermined the public’s confidence in the administration of justice and was [sic] a failure in his duty as DPP”.
Mr Drumgold also argued that some of the adverse findings were made “in excess of jurisdiction” as they were outside the Board of Inquiry’s terms of reference.
Regarding legal action against the Attorney-General, it was noted that Mr Rattenbury had a legislative right to terminate Mr Drumgold’s appointment as DPP of the ACT.
Mr Drumgold’s legal case argues this has impacted his rights, given Mr Rattenbury had been considering removing Mr Drumgold because of the findings of the Sofronoff Report, and because Mr Drumgold has argued the report’s decisions are “invalid”, this should have never happened.
“In a letter dated 4 August 2023 from [Mr Rattenbury] to the Plaintiff, [Mr Rattenbury indicated] an intention to consider whether to make a decision … on the basis of the Report [to terminate his position],” the documents stated.
“The Report is, alternatively the Decisions are, invalid and therefore a nullity.”
Mr Rattenbury confirmed to the Legislative Assembly on Wednesday (30 August) that legal action had been filed for judicial review in the Supreme Court against himself, the Board of Inquiry and the Legislative Assembly.
The ACT Government will not be covering Mr Drumgold’s legal costs in this matter.
The case has been scheduled for its first hearing in the Supreme Court on 14 September.
Mr Rattenbury also confirmed $4.3 million had been put aside to pay for the Board of Inquiry hearings to cover costs of staff – including Mr Sofronoff’s salary – and some legal fees.
“The costs are still being settled around that matter,” he said.
The government recently revealed a “significant factual inaccuracy” in the Sofronoff Report by the NSW DPP.