Judge Water Softener rides into Integrityville mounted high on his horse ... Judicial review of corruption finding ... Intriguing submissions ... Unprecedented assistance to morals monitor ... The scale of the sub-rosa intrigue ... Plenty to think about ... Ginger Snatch reports
Sofronoff's plane after landing at Toowoomba
In 1996 Walter Sofronoff appeared for the Wik people in the High Court case dealing with Native Title and pastoral leases.
Michael Kirby was on the court and he says that Sofronoff's opening was the finest he had ever heard.
Now, nearly 30 years later Sofronoff is in the Federal Court with a judicial review application challenging the finding by the ACT Integrity Commission that he engaged in "seriously corrupt conduct".
This is an endeavour by Sofronoff to unstitch the Integrity Commission's report into the way he ran the Board of Inquiry into ACT DPP Shane Drumgold and his prosecution of Bruce Lehrmann for the rape of Brittany Higgins in Canberra.
Adam Pomerenke, for Sofronoff, told Justice Wendy Abraham that his client had been "unwise" in his dealings with newspaper opinion columnist, Janet Albrechtsen, but not corrupt.
"Unwise" is an unusual term to a former solicitor general for Queensland and a former president of the Queensland Court of Appeal - who later conducted weighty commissions of inquiry - the Grantham floods; Queensland parole; forensic DNA testing; and the rape prosecution of Lehrmann.
As counsel, Sofronoff also acted for the commissioners in the Bundaberg Hospital Inquiry and for the Criminal Justice Commission against the commissioner leading an inquiry into the CJC. In both instances findings of apprehended bias (or "ostensible bias") were made by the Supreme Court of Qld.
So Sofronoff would have known the ropes when it came to bias in the conduct of commissions of inquiry. In the case of the Queensland inquiries he conducted there was no suggestion he spent extended hours frolicking with journalists while the show was on the road.
"Unwise ... erroneous" or even silly old duffer did not arise in the context of the Cossack's earlier work.
The serious corruption finding arose because of Sofronoff provided early copies of his report to the Planet and to Elizabeth Byrne of the ABC, plus copious amounts of confidential information to The Australian's prized guardian of community standards.
How he got himself into such a dreadful pickle in marking Drumgold's work is a mystery that defies easy explanation. Maybe he was smitten by the perfumed Planet, or he genuinely thought he was being helpful to the agenda-driven Fury.
Albrechtsen was engaged in a newspaper crusade against Drumgold and railed against the decision to prosecute Lehrmann for rape. Throughout the board's hearings, and even before they started, Sofronoff obligingly provided fodder for her fatwa. The relationship was described by the Integrity Commission as that of a "fellow traveller".
Pomerenke: Integrity Commission out of bounds
Pomerenke submitted that the Integrity Commission went beyond its statutory power and its finding was affected by jurisdictional error.
ICAC v Cunneen got a look in with Pomerenke pressing the point that the commission wrongly based its findings about Sofronoff's conduct on "soundness or efficacy" rather than "probity".
Also, the Board of Inquiry's non-publication orders did not prevent Sofronoff disclosing confidential information to Albrechtsen.
He argued that the Inquiries Act, ACT, dealt with the improper release of information provided to the board, not confidential material prepared by the board.
It was not out of bounds for the Cossack to breach his own NPOs because he owed no obligation of confidentiality to himself.
Further, his client and Albrechtsen did not have any shared beliefs and, even more puzzling, there was no evidence that Sofronoff knew Drumgold had a legal interest in the non-disclosure of confidential material.
Pomerenke claimed that Sofronoff was acting in the public interest, not the Planet's interest and all he did was assist journalists with understanding the work of the board so their reports would be accurate.
Kindness itself.
Scott Robertson for the Integrity Commission said that if Drumgold had become aware of the clandestine mutual schmoozing between Albrechtsen and the board he could have applied for Sofronoff to be removed on the ground of misbehaviour.
As it was, the DPP had no notice of these confidential disclosures.
Robertson: breach of public trust
The scale of the traffic between Sofronoff and Planet Janet was laid bare after Chief Justice Lucy McCallum in the ACT Supreme Court granted Justinian access to to the affidavit and exhibits tendered and read during Drumgold's application for judicial review of Sofronoff's findings.
The review was heard by Acting Justice Stephen Kaye, who in March 2024 said that Sofronoff's report was infected by apprehended bias.
See: Tootsies with Planet Janet
Among the revelations were messages to Sofronoff from Hedley Thomas, a crime reporter at The Australian in Brisbane, setting up an introduction to the Planet.
In the exchange Sofronoff revealed that his name was mangled in a caption to a television report about his appointment as chairman of the Board of Inquiry. At the hands of AI Walter Sofronoff became "Judge Water Softener".
In all we counted 275 phone calls, text messages and emails flowing between Water Softener and Albrechtsen between February 22 and August 2, 2023.
It amounted to nearly eight hours of phone calls - amounting to a day on the phone with the Planet. Twelve other journalists got slightly more that two hours of Walter's telephone time, all up.
Immediately, Albrechtsen laid it on thick with Judge Softener:
"You raised some terrifically complex issues that we are facing ... The interviews you have done that I have read have been very informative about the big issues facing us."
He replied saying that he didn't want to do an interview but "I'd be happy to talk it all over so that you can write about it".
Then there was the famous lunch with Planet flying up to Brisbane for a 12.45pm booking with Sofronoff on Tuesday, March 31 at Enoteca - a pricy Italian noshery.
Throughout the proceedings, Albrechtsen pressed him to investigate the ACT Police complaint about political interference in the Lehrmann case; suggested that the prosecutor could be investigated for malicious prosecution; asked for and received transcripts of what transpired during sessions of the board's hearings that were muted; asked for an embargoed copy of the report and received it replete with internal comments and tracked changes; indicated it would be better if the section in the report on presumption of innocence was moved up to the front; requested help from Sofronoff for an article she was writing about the media and the legal system; and asked him to explain the phrase "Pilate-like detachment".
For his part, Sofronoff agreed to send her all the notices of potential adverse findings and a copy of Drumgold's response; read and comment on article she sent him; made critical remarks about Drumgold and his counsel; and painstakingly humoured her requests for confidential information.
Water Softener: hard at work
There was a gobsmacking moment when Albrechtsen complained to counsel assisting, Erin Longbottom, about her newspaper's sneak photo of Drumgold at the front of his home in Canberra having a beer.
"I can't bear the dancing on his grave," she wrote, as though her own dance routine was merely a soft-shoe shuffle.
Sofronoff sent the final report to the government and also to Albrechtsen. She promptly dudded him by betraying their understanding and published the findings highly critical of Drumgold before the DPP and the ACT government had a chance to read it and comment.
She claimed that the report had come to her by another source, so she was free to breach Sofronoff's embargo - the oldest trick in the book of journalistic scumbaggery.
Water Softener has been left looking not just unwise, but for all the world like a "useful idiot".
Justice Abraham reserved, saying she had "plenty to think about".