Dear Federal Court of Australia,

I refer to the contents of an article published in the Australian on 8 February 2022 - Untried lawyers score key positions.

A "legal case manager was offered a position as national registrar in September 2018 – over other experienced solicitors – months before he completed his College of Law legal training course."

Under s 15 of the FOI Act, I request access to all email correspondence sent and received by each of Sia Lagos, the current Chief Executive of the Federal Court, and David Pringle, the current Chief Executive of the Federal Circuit and Family Court, in relation to:

i) the offer of a national registrar position made to the legal case manager,
ii) the engagement of the legal case manager as a national registrar,
iii) the appointment to the position the national registrar position by Mr Soden, and
iv) the delegation for the national registrar to preside in court.

Please send any documents to me by email.

Yours faithfully,

Mircea

External FOI, Federal Court of Australia

1 Attachment

OFFICIAL
Dear Mircea

Please find attached correspondence from the Federal Court of Australia.

Kind regards
FOI Officer

show quoted sections

External FOI, Federal Court of Australia

1 Attachment

OFFICIAL
Dear Mircea

Please find attached correspondence from the Federal Court of Australia.

Kind regards

FOI Officer
Federal Court of Australia

show quoted sections

External FOI, Federal Court of Australia

1 Attachment

OFFICIAL
Dear Mircea

Please find attached correspondence from the Federal Court of Australia.

Kind regards

FOI Officer
Federal Court of Australia

show quoted sections

Dear Federal Court of Australia,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Federal Court of Australia's handling of my FOI request 'Request for email correspondence'.

I have reviewed your reasons for decision and do not agree with them,

You have relied on four conditional exemptions and the public interest test to deny access to the documents that I requested.

Section 47C - deliberative content

You claim in your reasons that "the documents include content that is deliberative matter, as the documents record exchanges and/or information about the selection process through which the national registrar was recruited."

The materials may, in fact, contain deliberative content, but I do not think that the public interest test should be applied as you have applied it. That is because of the context in which the documents came into existence.

My request was made in the context of the allegations set out in an article in The Australian published on 8 February 2022. In that article:

a) it was made clear that a male legal case manager was promoted to the position of national registrar when he did not possess the essential qualifications for the role, and when others did;

b) it was intimated that Dr Natalie Cujes had applied for the same national registrar position but was not selected because the male case manager was selected (see https://www.righttoknow.org.au/request/u...

c) the male national registrar was selected in September 2018;

d) Sia Lagos, Andrea Jarratt and David Pringle had involvement in the selection or promotion of this young man;

e) Mr Warwick Soden was alarmed by requests to provide this male registrar with delegations to exercise judicial power given how little experience he had;

f) Mr John Mathieson was also concerned that this male registrar was underqualified because he had not been admitted to the Supreme Court even though it was necessary for the successful candidate to have case management experience before superior courts.

It is now public knowledge that Sia Lagos, David Pringle and Andrea Jarratt were involved in the selection of Murray Belcher as the SES1 National Judicial Registrar & District Registrar - QLD, even though Warwick Soden and Sia Lagos were publicly criticised by Justice Greenwood for colluding with each other to reduce his classification from SES1 to something lower to overcome a putative veto power that Kerryn Vine Camp claimed that she had. That is, of course, very odd because Kerryn Vine Camp certified the selection process that Sia Lagos, David Pringle and Andrea Jarratt carried out as being a process that complied with the Public Service Act and the Commissioner's Directions (see https://www.righttoknow.org.au/request/c...). If Mr Belcher was promoted to the SES1 National Judicial Registrar & District Registrar position, his name would appear on the list of SES employees published on the Federal Court's disclosure log (see documents associate with PA2925-06/9 at www.fedcourt.gov.au/disclosurelog). His name is not there. Indeed, the fact that Justice Greenwood is on the record as noting that he was effectively cheated out of his promotion to the Senior Executive Service so that the capped position could be moved elsewhere in the Federal Court Statutory Agency demonstrates that Sia Lagos, David Pringle and Andrea Jarratt are all shady characters.

It is also public knowledge that Sia Lagos, David Pringle and Andrea Jarratt were involved in the selection of Russell Trott as the SES1 National Judicial Registrar & District Registrar - WA (see https://www.righttoknow.org.au/request/s...). That is, of course, very odd because Kerryn Vine Camp certified the selection process that Sia Lagos, David Pringle and Andrea Jarratt carried out as being a process that complied with the Public Service Act and the Commissioner's Directions (see https://www.righttoknow.org.au/request/c...). If Mr Trott was promoted to the SES1 National Judicial Registrar & District Registrar position, his name would appear on the list of SES employees published on the Federal Court's disclosure log (see documents associate with PA2925-06/9 at www.fedcourt.gov.au/disclosurelog). His name is not there. Nor does there appear to be a promotion notice for Mr Trott's promotion to the Senior Executive Service. Again, this troika is involved in what appears to be shady activity.

This is the context in which the request was made. This is the context that colours B Henderson's decision.

If the deliberations entered into by Ms Lagos and Mr Pringle are deliberations for the unlawful promotion of the male national registrar, or for the inefficient operation of the agency's functions, then it is in the public interest to provide access to the documents. You have failed to advert to the context in which the documents came into existence. It is public information that the documents came into existence in the context of unlawful activities or, at the very least, in the context of inefficient uses of resources. That is why your public interest assessment in respect of the s 47C conditional exemption is flawed and why I do not accept your conclusions.

Sections 47E(c) and 47E(d)

There is a masterful analysis of the law relating to the application of ss 47E(c) and 47E(d) provided by Terens (see https://www.righttoknow.org.au/request/i...). Terens analyses how ss 47E(c) and 47E(d) cannot be relied on when the documents which a person claims are subject to those exemptions have been created in the course of unlawful activity or inefficiencies, or which disclose unlawful activities or inefficiencies. I adopt Terens' analysis of the law. I also adopt his comments about contextualisation of documents.

The context in which these documents have been created is public information. I have identified parts of the context above. That contextual information had been taken from an article in The Australian titled “Untried lawyers score key positions”, which was published on 8 February 2022 and information and documents on this website and on the website of the Federal Court. It is plain that an unmeritorious candidate was selected and that Sia Lagos, David Pringle and Andrea Jarratt had deep involvement with the selection and promotion of this unmeritorious candidate. That Ms McMullan, the Acting Assistant Commissioner of the APSC did not substantiate wrongdoing in the selection process does not mean that there was no wrongdoing. It is well known that Ms McMullan's PID investigation is now the subject of an investigation by the Commonwealth Ombudsman (see article published on page 3 of The Australian on 29 March 2022, "Spotlight shines back on watchdog"). It is plain that an unmeritorious candidate was selected because the candidate:

a) had not been admitted as a practitioner of a Supreme Court or the High Court; and

b) the candidate did not have case management experience before superior courts (he couldn't have because he had not been admitted).

It also follows that the male who was promoted to the position of national registrar had never practised a day in his life, even though he was promoted into a role which involved a person exercising Federal judicial power pursuant to a direction by a judge of the Federal Court.

Worse still, those who selected the male national registrar did not select an eminently suitable candidate, who:

a) had been a litigator since 1994 specialising in Federal Court matters;

b) had previously been a deputy district registrar in the Federal Court;

c) had lectured at the University of NSW; and

d) had published several books about Federal Court litigation.

This anonymous candidate appears to be Dr Natalie Cujes based on a perusal of her university profile (see https://www.unsw.adfa.edu.au/natalie-cujes).

In the light of the unlawful nature of the promotion, and the fact that the documents evidence deliberations brought about in that context of unlawfulness, your reliance on ss 47E(c) and 47E(d) is without merit for the reasons Terens has set out in his submissions to the OAIC.

Specifically:

There are fundamental assumptions that inform statutory interpretation. One of those fundamental assumptions is the assumption of legality. This assumption was elegantly expressed by Isaacs J in Ex parte Walsh and Johnson; In Re Yates (1925) CLR 36:

… even where Parliament confessedly possesses plenary within it own territory, the full literal intention will not be ordinarily ascribed to general words where that would conflict with recognised principles that Parliament would be prima facie expected to respect. Something unequivocal must be found, either in the context or the circumstances, to overcome the presumption.

It could not be assumed that Parliament intended the meaning of the “management of personnel” by the Commonwealth or an agency to extend to the unlawful management of personnel, or to the mismanagement of personnel, by the Commonwealth or an agency. By the same token, it could not be assumed that Parliament intended the meaning of “assessment of personnel” to extend to the “assessment of personnel” by the Commonwealth or an agency for unlawful ends.

In your decision you claim that the "release of this information would clearly have an adverse impact on the integrity of the Court's recruitment processes and would likely result in the Court being a less attractive employer to prospective candidates and even to existing candidates."

You also claim that the "release of the documents captured by your FOI request would, or could reasonably be expected to, have a substantial adverse effect on the management of personnel by the Court" because "disclosure of the information would destroy trust in the confidentiality of the Court's future recruitment and selection processes" and because prospective internal and external applicants would not be discouraged form applying for positions, making it difficult for the Court to attract candidates.

The documents could not adversely impact the Court recruitment processes because the documents disclose or evidence unlawful conduct on the parts of Ms Lagos and Mr Pringle. The documents would have to have an adverse impact on the lawful recruitment processes of the Court for s 47E(c) to apply. Similarly, trust in the confidentiality of the Court's future recruitment processes would not be destroyed because disclosure of the documents would not undermine the lawful future recruitment processes of the Court. To the extent that the disclosure of the documents would undermine the confidentiality that has cloaked the unlawful practices engages in by senior officials, including Sia Lagos, David Pringle and Andrea Jarratt, that is a wonderful thing and definitely in the public interest. Corruption and the concealing of corruption are never in the public interest.

As Terens put it:

The management of personnel does not extend to the mismanagement or unlawful management of personnel ... Documents disclosing mismanagement or unlawful management cannot be conditionally exempt under s 47E(c) of the FOI Act because s 47E(c) only extends to documents relating to (lawful) management. To interpret the word “management” to extend to “unlawful management” or “mismanagement” would be to undermine a fundamental tenet of statutory interpretation - Parliament assumes legality. Such an interpretation would not be a purposive interpretation of the FOI Act, which [the FOI decision maker] is compelled to adopt where such an interpretation is open to her (see s 15AA of the Acts Interpretation Act 1901 (Cth)) ...

In the context of the "assessment of personnel" you claim:

The assessment of the candidate contained within the document includes information such as employment history, qualifications, skills and attributes. The release of such information could reasonably be expected to create anxiety and stress for the individual by disclosing discussions about suitability and the recruitment process.

What's your point? s 47E(c) has nothing to do with anxiety and stress individuals feel. It is about substantial adverse effects on an agency's ability to assess personnel. Your reasoning in this regard is unconvincing.

Therefore your reasons in support of your claim that s 47E(c) applies are without merit.

While it actually has little to do with s 47E(c), you make the following claim:

The individual referred to in your request who was appointed to the national registrar position would have expected that the details of the process, including their personal details, would remain confidential. Further, the Court staff involved in the correspondence would reasonably expect that the recording and/or exchanges of their opinions and deliberations would remain confidential and not be made publically available.

The disclosure of the documents would prejudice the protection of both the individual concerned and the senior courts staffs' right to privacy.

For the record, there have only been 3 male national registrars since that position was brought into effect in 2018. Those three people are Adam Bundy, David Priddle and Rohan Muscat. Their names can be found in the list of registrars in the Federal Court's annual reports for 2018-2019, 2019-2020 and 2020-2021.

David Priddle is not the registrar in question. He has been a deputy district registrar of the Court since at least 2013. His title appears to have been changes in the 2018-2019 financial year, but he was certainly not a case manager who was promoted to a registrar position in 2018. He has been a long standing registrar in the Victoria Registry of the Federal Court. That leaves Adam Bundy and Rohan Muscat.

It's amazing how much information there is on the internet. When the story first broke I had a look at the annual reports of the Court and searched the names of these national registrars. As it happened, one national registrar had quite a few online profiles. In one of his profiles, he even boasted, in a post made in February 2019, about the "privilege" of having become a registrar of the Federal Court, which was a privilege very few people would ever attain. In the intervening period, it seems those online profiles have disappeared from public view (probably because this young man in now embarrassed by his "privilege"). In any case, I know who this person is and I had the foresight to print copies of his public online profiles should anybody ever need to know who the national registrar referred to in the article in The Australian is.

The national registrar splashed it all over the internet. Unfortunately for him, some of that information is cached and stored in digital "time capsules". So their private details are far from private.

Also, while I am sure that Sia Lagos and David Pringle have long thought that their shenanigans would never be exposed, sadly for them, they are slowly but surely being exposed. Where recordings and/or exchanges of opinions and deliberations are for purposes that are not lawful, no reasonable public servant can expect those records to remain confidential. It is not in the public interest for corruption and unlawfulness to remain in the shadows.

Again, your reliance on s 47E(c) in this regard is without merit.

In the context of the application of section 47E(d), you claim that:

The documents relate to recruitment processes which are essential to the proper and efficinet operation of the Court. It is imperative for the Court to be able to conduct recruitment processes and retain the level of confidentiality that is expected by candidates and the selection panel.

Successful recruitment exercises must have a level of trust so that all involved are comfortable to communicate honestly and freely, whether that be about the attributes of a particular candidate, or the discussions about how the Court plans and conducts the process.

These are admirably crafted reasons and might actually stand to scrutiny were it the case that the document relate to the LAWFUL recruitment processes of the Court, which are essential to the proper and efficient operations of the Court. But they do not relate to the LAWFUL recruitment processes of the Court.

As Terens noted:

Section 47E(d) of the FOI Act provides:

A document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to, do any of the following:

(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency ...

As I have already noted, there are fundamental assumptions that inform statutory interpretation. One of those fundamental assumptions is the assumption of legality. This assumption was elegantly expressed by Isaacs J in Ex parte Walsh and Johnson; In Re Yates (1925) CLR 36.

It could not be assumed that Parliament intended the meaning of the “proper and efficient conduct of the operations of an agency” to extend to the unlawful conduct of the operations of an agency. So much is accepted by the Information Commissioner who has, in her Guidelines, which [an FOI decision maker] must have regard to under s 93A of the FOI Act, explicitly stated:

6.123 … Where disclosure of the documents reveals unlawful activities or inefficiencies, this element of the conditional exemption will not be met and the conditional exemption will not apply ...

Terens then sets out information about the context of his request. The information about the context of my request is set out above.

Terens continues:

How could documents that have nothing to do with the proper and efficient operations of the Federal Court have a substantial adverse effect on the proper and efficient conduct of the operations of the Federal Court if they are granted access to?

How will the proper and efficient conduct of the Federal Court’s recruitment processes be affected by documents that disclose unlawfulness? No part of the proper and efficient operation of the Federal Court’s recruitment practices can be substantially and adversely affected because the documents have nothing to do with the proper and efficient operation of the Federal Court’s recruitment practices. The recruitment practices of the Federal Court do not extend to unlawful recruitment practices.

You have yourself noted that “where disclosure of the documents reveals unlawful activities or inefficiencies, this element of the conditional exemption will not be met and the conditional exemption will not apply.” So how is it that you claim that s 47E(d) applies, knowing that the documents you are referring to evidence unlawful conduct in as much as they record deliberations about the selection of a candidate on anything other than his merits, particularly when candidates like Dr Cujes were deliberately overlooked by the selection panel?

Your reasons in support of the application of s 47E(d) are, thus, entirely without merit.

s 47F - Privacy

I have already pointed out that I know who the national registrar is.

I have already pointed out that the journalists in The Australian have identified Ms Lagos, Mr Pringle and Ms Jarratt as having their fingerprints all over this unlawful selection process. Their names are well known. Their roles in this unlawful selection process are well known. I couldn't care less about their email addresses or their contact numbers. They can be redacted. But the other content - there is no privacy claim that can be made because most of the content is already publicly known; it was published in an article in the Australian. You are compelled under s 47(2) to consider whether the information is publicly accessible. It is. What point is there to claiming privacy when Ms Lagos, Mr Pringle's and Ms Jarratt's roles in this unlawful conduct have been splashed on the front page of a national newspaper?

Public interest

For the reasons I have identified, sections 47E(c) and 47E(d) do not apply. I do not think that s 47F applies, but if it does, the documents have to be granted access to unless it is not in the public interest to do so.

Your public interest analysis is flawed because you have failed to advert to the context in which the documents came into existence. The documents came into existence in the context of furthering unlawful selection processes. The flaw is a fatal one. It can never be in the public interest to cover up unlawful conduct (which is what you are doing by refusing to grant access to documents that were prepared in the context of unlawful conduct). Therefore, your reasons about the public interest requiring the documents to be kept from being published are baseless.

That the national registrar's privacy would be affected should be given little weight because he is responsible for publicising his "privilege" online on several platforms.

That disclosure might cause stress to the national registrar is regrettable, but he is the beneficiary of unlawful conduct. He had no right to take the position. He was plainly underqualified and unmeritorious. He should not be protected because the reputation of the Federal Court will suffer. The Court's reputation will suffer because the public will know that an unmeritorious person is in the ranks of the Court's registrars.

That the publication of the documents might disclose the involvement of senior figures in the Federal Court engaging in unlawful conduct is not a bad thing; it is a good thing. That is not a reason in support of refusing to grant access. It is a reason in support of granting access.

If Ms Lagos and Mr Prignle's reputations should be damaged because they have, in reality, been engaging in unlawful conduct, then so be it. Truth always comes first. If Sia Lagos and David Pringle are, in reality, scoundrels, then let them be exposed as such. They should not derive an income from the public if they cannot be trusted to uphold the laws of Australia.

For the reasons set out above, I request that an internal review take place and for the documents to be made available to me according to law.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/r...

Yours faithfully,

Mircea

External FOI, Federal Court of Australia

1 Attachment

OFFICIAL
Dear Mircea

Please find attached correspondence from the Federal Court of Australia.

Kind regards

FOI Officer
Federal Court of Australia

show quoted sections

External FOI, Federal Court of Australia

1 Attachment

OFFICIAL
Dear Mircea

Please find attached correspondence from the Federal Court of Australia.

Kind regards

FOI Officer
Federal Court of Australia

show quoted sections

Federal Court of Australia

 
 
  [1]Office of the Australian Information Reference Code:  
Commissioner ICR_10-48916022-2593
 

 
You submitted a form called: FOI Review_
 
Your form reference code is: ICR_10-48916022-2593

To check the progress of your submission and/or confirm it has been
received you should contact the agency that provides the form. These
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References

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Federal Court of Australia

1 Attachment

Our reference: MR22/00842

 

By email: [FOI #8420 email]

Receipt of your IC review application  

Thank you for your application for Information Commissioner Review (IC
review).

The Office of the Australian Information Commissioner (OAIC) is
considering your application.

If you wish to advise the OAIC of any changes to your circumstances,
including your contact details or if your FOI request has been resolved,
please write to [email address] and quote MR22/00842.

 

Yours sincerely

 

Freedom of Information Regulatory Group

Office of the Australian Information Commissioner

 

 

 

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Dear Registrar Colbran,

I disagree with your decision. Your reasons are riddled with falsehoods and fallacies. I have applied for review of your decision by the Information Commissioner. The IC review reference is MR22/00842. I look forward to receiving the Federal Court's submissions from the Office of the Australian Information Commissioner.

Yours faithfully,

Mircea