Shane Drumgold wanted access to 180k documents in legal fight against board of inquiry

Close to 200,000 documents may need to be sifted through before Shane Drumgold’s case against the inquiry that ended his career can be heard next year.

The former ACT director of public prosecutions last month launched legal action to quash a board of inquiry’s findings about his handling of the Bruce Lehrmann trial.

A two-day hearing has been set aside for the judicial review on February 12 next year.

However, lawyers from all sides have a mammoth task ahead of them to sift through relevant documents that could be made available through discovery.

The ACT Supreme Court on Thursday agreed to narrow the scope after it was told the number of documents involved could be “in excess of 180,000”.

Under the Inquiries Act, all documents tendered to a board of inquiry are then committed to the Chief Minister for “safekeeping”.

ACT government barrister Kate Eastman argued the concern was to avoid “any delay” and the “significant cost” of going through the documents in the short timeframe.

Mr Drumgold’s barrister Dan O’Gorman unsuccessfully argued he was concerned about a drawn-out court fight should discovery be narrowed to categories of documents.

Mr O’Gorman acknowledged the action was “unusual” for a judicial review and flagged an intention for the court to consider the actions of the decision maker, Walter Sofronoff KC, “that has become apparent since”.

“No one will be left in any doubt whatsoever about what Mr Drumgold’s case is,” he said.

Registrar Jayne Reece ruled the scope of discovery would be narrowed to categories to be agreed upon by the parties.

She reasoned it was not only “more efficient” but also reduced the risk of disclosing documents that are “potentially not relevant at all” and delay the matter further.

Last week, the court confirmed an outside judge would be appointed to preside over the legal action to avoid a potential conflict within Canberra’s small legal community.

Victorian justice Stephen Kaye was nominated but has yet to be appointed as an acting ACT Supreme Court judge.

Ms Reece said she anticipated the issue would be resolved in “the next couple of weeks”.

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 last October due to jury misconduct and a planned retrial was abandoned due to 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’s prosecution of the case.

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 ACT government has yet to confirm whether it will take any action against Mr Sofronoff for the report’s early release.

In a statement at the time, Mr Drumgold denied any wrongdoing and said the report’s early release had denied him procedural fairness.

“Although I accept my conduct was less than perfect, my decisions were all made in good faith, under intense and sometimes crippling pressure, conducted within increasingly unmanageable workloads,” he said.

“The pre-emptive release of the report to the media has denied me procedural fairness. It has deprived the ACT government of the opportunity of considering my conduct objectively.”

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