An outside judge will be flown in to preside over the legal action brought by the former ACT top prosecutor against the high profile inquiry that cost him his job.
Shane Drumgold SC is seeking to have the findings of the board of inquiry into the Bruce Lehrmann trial quashed by the ACT Supreme Court.
He was forced to resign from his position as the Director of Public Prosecutions after the inquiry chair, Walter Sofronoff KC, made several damning findings about his conduct.
At a directions hearing on Thursday, Registrar Jayne Reece revealed Chief Justice Lucy McCallum had taken the step to have an outside judge preside over the matter to avoid a conflict.
In an email, read to the court, Ms Reece told the parties Justice McCallum had formed the view it would “not be appropriate” for any current resident judge to hear the proceedings.
Justice McCallum presided over the rape trial against Mr Lehrmann which was abandoned last year due to jury misconduct.
Justice McCallum wrote to the chief justice of the Victorian Supreme Court Anne Ferguson to nominate a judge. She confirmed reserve judge Stephen Kaye would be made available.
The process of appointing Mr Kaye, a former Court of Appeal justice, to the position is now underway.
Mr Drumgold is arguing he was denied natural justice, did not receive a fair hearing, and some of the inquiry’s findings were “legally unreasonable”.
He is requesting the Court quash Mr Sofronoff’s findings to be quashed or for the report to be declared invalid.
Mr Drumgold had originally filed proceedings against the board of inquiry, the ACT Government and the territory’s Attorney-General, Shane Rattenbury.
But ahead of Thursday’s court appearance, Mr Rattenbury was removed from the legal action.
Mr Drumgold’s lawyers had wanted the registrar to issue directions to all parties on Thursday but were opposed by Mr Sofronoff’s solicitor, Glen Cranny.
Mr Cranny told the court issues of “indemnity” were in the process of being resolved between himself and the ACT Government.
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.”
The matter will return for a second directions hearing on Thursday, September 28.