The chair of an inquiry which made damning findings against the ACT's former top prosecutor made "numerous communications", including 55 phone calls, to journalists from The Australian.
These communications, some of which occurred during the probe, are alleged to have caused an "apprehended bias".
Shane Drumgold SC, who resigned as director of public prosecutions after being slammed over his conduct in the case against former Liberal Party staffer Bruce Lehrmann, launched legal action in August last year.
Mr Drumgold's application seeks the 839-page board of inquiry report, written by chairman Walter Sofronoff KC, be quashed or, alternatively, the conclusions made in relation to him be declared invalid, unlawful, or affected by bias, or a denial of natural justice.
Mr Drumgold's counsel, Dan O'Gorman SC, is seeking to have emails, text messages and phone calls between Mr Sofronoff and journalists, in particular Janet Albrechtsen from The Australian, submitted as evidence in an upcoming hearing.
Mr O'Gorman alleged this will demonstrate Mr Sofronoff had an apprehended bias against the former DPP, and had a relationship with Ms Albrechtsen by which "a reasonably informed bystander would be concerned".
"In the months leading up to and during the inquiry Ms Albrechtsen was writing numerous articles that were critical of Mr Drumgold," Mr O'Gorman said.
He claimed there were "numerous communications" between Mr Sofronoff and Ms Albrechtsen, who over a number of months "exhibited an attitude adverse to Mr Drumgold".
"Ms Albrechtsen received confidential information relating to the inquiry," Mr O'Gorman told the ACT Supreme Court on Wednesday.
The lawyer said this included "information provided in relation to parts of the draft report".
The findings of the inquiry were sensationally published by The Australian on August 2 last year after Mr Sofronoff leaked the report ahead of time.
"Mr Sofronoff was in constant contact with Ms Albrechtsen from 22 February [2023] and then throughout the time he was performing his role," Mr O'Gorman told the court on Wednesday.
Evidence Mr Drumgold's lawyers are seeking to have admitted includes the 65 calls Mr Soforonoff had with journalists between February 9 and July 31, 2023.
The court heard Mr Sofronoff spent a total of nine hours and 57 minutes on the phone with journalists during this time, with seven hours and 33 minutes of this with The Australian.
During the Board of Inquiry hearing, Mr Sofronoff made 10 calls to The Australian, eight of these were to Ms Albrechtsen.
Mr O'Gorman alleged "much, if not all, of the communications" between Mr Sofronoff and Ms Albrechtsen did not follow practice directions which outlined how the media should communicate with the board of inquiry.
While Acting Justice Stephen Kaye is yet to decide if this evidence can be admitted, he said "this cannot be a fishing exhibition".
"I have emphasised this is not an inquiry into an inquiry, this is strictly a judicial review," he stated.
In a judgment published late Wednesday afternoon, Acting Justice Kaye ruled the majority of an affidavit from Mr Sofronoff would be admitted as evidence, but upheld one objection.
In the affidavit, Mr Sofronoff stated "he recognised that the subject matter of the inquiry concerned public confidence in the criminal justice system".
"He was of the view that appropriate engagement with the media would be essential to the performance of the inquiry's functions," the judgment states.
As a result, Mr Sofronoff advised "he would generally make himself available to journalists to respond to queries".
"His interest was to ensure the accurate coverage of the work of the inquiry so far as he was able to do so."
The findings of misconduct in relation to Mr Drumgold include that he knowingly lied to Chief Justice Lucy McCallum and "preyed on" the inexperience of a junior prosecutor while dishonestly withholding documents from Mr Lehrmann's lawyers.
The trial against Mr Lehrmann was aborted last year because of juror misconduct, with the charge levelled at the former Liberal staffer, who maintains his innocence, later discontinued.
No findings have been made against Mr Lehrmann.
