A judge from outside the ACT will be appointed to avoid any conflicts of interest in the case Shane Drumgold SC launched in his attempt to overturn parts of the Board of Inquiry’s findings.
In documents previously tabled to the ACT Supreme Court, Mr Drumgold asked for a declaration that Walter Sofronoff’s report, released after the inquiry into the prosecution of Bruce Lehrmann, or the decisions made in respect to him, are “invalid and of no effect”.
While the Board of Inquiry, Attorney-General Shane Rattenbury and the ACT were all initially named as defendants in the proceedings, the proceedings were discontinued against Mr Rattenbury earlier this week.
A statement has been filed confirming the ACT intended to respond, although its defence has not yet been released.
At the matter’s first appearance in the Supreme Court on Thursday (21 September), the court heard Chief Justice Lucy McCallum had decided it was not appropriate for any of the resident judges to hear the case.
She had asked the Supreme Court of Victoria if one of its judges could determine the matter, which had replied that it would make Judge Stephen Kaye available.
Registrar Jayne Reece said that appointment was underway to avoid any conflict of interest with the resident judges.
The court also heard Mr Drumgold had proposed several orders to be made that day, with his barrister, Dan O’Gorman SC, arguing it was not premature to make them and that his client didn’t want any further delay in the matter. The matter had been scheduled to be heard last week.
“Time is just being wasted at present,” Mr O’Gorman said.
But Glen Cranny, who appeared for the Board of Inquiry, claimed Mr Drumgold’s proposed orders would be “unfair” to Mr Sofronoff as he had not yet found senior lawyers to represent him nor had clarity on aspects of his legal position with the ACT.
Registrar Reece said she did not agree with some of Mr Cranny’s arguments but agreed these legal aspects needed clarification.
She ordered Mr Drumgold file his amended application for his legal claim and adjourned to resolve further issues on 28 September.
She also said it was possible that the hearing for the proceedings could take place this year, but that would depend on the timetables being sorted.
In the original documents Mr Drumgold filed for the proceedings, he said he was seeking costs as well as any other order the court thinks is appropriate.
He claimed the Board of Inquiry failed to accord him “natural justice”, that some of the report’s findings were “legally unreasonable”, and some fell outside the inquiry’s terms of reference.
Mr Drumgold resigned as Director of Public Prosecutions in the wake of the Sofronoff Report findings after his position was deemed untenable.
These findings included that he 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”, “deliberately advanced a false claim of legal professional privilege” and “knowingly lied to the chief justice”.
Mr Lehrmann pleaded not guilty and no findings have been made against him.