240322 Letter of Complaint re Decision of Justice Rofepdf
240322 Letter of Complaint re Decision of Justice Rofepdf
Page 1 of 230
Katie Ashby-Koppens shared this file. Want to do more with it?
  1. PJ O’Brien & AssociatesPO Box 916The Junction NSW 229122 March 2024Federal Court, Melbourne RegistryU R G E N T305 William StMelbourne VIC 3000AustraliaAlso via email: vicreg@fedcourt.gov.auAttention Chief Justice MortimerDear Chief Justice Mortimer,Complaint against Her Honour Justice Helen RofeRe DR JULIAN FIDGE v PFIZER AUSTRALIA PTY LTD & ANOR(‘the Fidge proceedings’)VID510/20231.We act for Dr Julian Fidge, the Applicant in the above matter.2.The above matter was heard before Justice Rofe on 20 October 2023 and the decision handed down on 1 March 2024. The decision summarily dismissed the Applicant’s case on the grounds that it has no prospects of success as Dr Julian Fidge is not “any other aggrieved person” for the purposes of the Gene Technology Act 2000 (Cth).13.We must immediately request the Chief Justice order pursuant to Rule 35.22 that no further steps are to be taken on the papers filed 22 March 2024 (an extension of time under Rule 35.14 and an application seeking leave to appeal under Rule 35.12) until further directions are issued by the Chief Justice pending a resolution of this Complaint, in circumstances where (further detailed below) the decision of 1 March 2024 appears to be unappealable. 1 See Schedule 1, Section B. for fuller explanation and Case Summary.1
  2. 4.For your urgent attention we bring the following complaint2 pursuant to section 15(1AA)(c) of the Federal Court of Australia Act 1976 (Cth) against a Judge of the Federal Court of Australia, Justice Helen Rofe:Misconduct by the failure to disqualify or disclose, where withholding information required to be disclosed gives rise to the inference of intentional concealment of information required to be disclosed to the parties by the Judge, connoting dishonesty.3Namely, the failure to disclose a significant prior relationship with the First Respondent as well as interests, affiliations, and associations reaching back four decades for her Honour personally, and over a century when extended family interests of great significance are understood.4Where the potential implications of the case proceeding clearly involve significant and long lasting reputational damage and possibly very significant financial consequences for all Australian governments and political parties andtheir lead members in power throughout the COVID period, particularly those in positions of authority and responsible for the introduction and deployment of the COVID-19 products of Pfizer and Moderna to Australian citizens.55.A reasonable observer could and can conclude the intention to not disclose the prior and significant relationship with the First Respondent, and close working relationships and familial ties, created and creates a perception her Honour intended to conceal her prior relationship with the First Respondent, and ostensibly from the Applicant. 6.Where the complaint giving rise to allegation of misbehaviour by a Judge attaches to the creation of a decision purportedly in the performance of judicial duties, the question of confirming or dismissing the alleged misbehaviour cannot be adjudicated upon by sitting Judges of the Federal or High Court of Australia, being as it is the soleresponsibility and jurisdiction of the Houses of Parliament to determine such allegations pursuant to section 72(2) of the Constitution.67.Further, the complaint in this instance is incapable of being raised on appeal, as the misconduct complained of commenced at the case management hearing and continued through to the hearing of the summary dismissal applicationmaking that decision void ab initio7and therefore making an appeal impossible8 in our view.2 See Schedule 1, section A. Complaint.3 See Schedule 1, section E. Elements of the Complaint and F. Judicial Conduct.4 See Schedule 1, section C. Extra-Judicial Interests, Affiliations, and Extended Family.5 See Schedule 1, section D. Case Implications.6 See Schedule 1, section A. Complaint pursuant to Federal Court of Australia Act.7 Ibid.8 Ibid for further details.2
  3. 8.For the further detailed reasons and analysis set out in Schedule 1, and in the circumstances, the following relief is sought as soon as possible but before 27 March 2024 before any other steps are necessary:a.A declaration the decision of Justice Rofe dated 1 March 2024 was void ab initio.b.A declaration the decision of Justice Rofe dated 1 March 2024 is unappealable.c.An order wholly vacating the decision of Justice Rofe dated 1 March 2024.d.A declaration the Summary Dismissal hearing of 23 October 2023 was void and of no judicial effect.e.An order requiring the Federal Court to pay all costs of the parties relating to the Summary Dismissal application on an indemnity basis.f.An order requiring any work performed by the Applicant in preparation of appealing the 1 March 2024 decision to cease, with all costs incurred to the date of the order payable by the Federal Court on an indemnity basis.g.An order directing the Fidge proceedings VID510/2024 be allocated to a new judge and to be set down for an initial case management hearing.h.An order requiring the Federal Court to pay all costs of this complaint on an indemnity basis.We look forward to hearing from you as a matter of urgency.Kind regardsPeter O’BrienKatie Ashby-KoppensPrincipalLawyerPJ O’Brien & AssociatesPJ O’Brien & Associates pj@pjob.com.aukatie@pjob.com.au+41 411 045 456+61 435 791 200CC: All sitting Commonwealth Senators and Members of ParliamentCC:RespondentsLiability limited by a scheme approved under Professional Standards Legislation3
  4. Schedule 1A.Complaint pursuant to Federal Court of Australia Act1.Where complaint is understood and defined under section 15(1AA)(c) of the Federal Court of Australia Act 1976 (Cth) (the Act):(1AA)In discharging his or her responsibility under subsection(1) (and without limiting the generality of that subsection) the Chief Justice:(c)may deal, as set out in subsection(1AAA), with a complaint about the performance by another Judge of his or her judicial or official duties;2.A ‘Judge’ means a Judge of the Court including the Chief Justice (Section 4).3.Sections 15(1AAA) and 15(1AAB) of the Act outlines the process to be followed by the Chief Justice in dealing with a complaint.4.The Explanatory Memorandum introducing the complaints amendments to Section 15of the Act makes note:The Bill [Act] does not limit the ability of a complaint which may warrant removal of a judge from office under paragraph 72(ii) of the Constitution to beconsidered by the Parliament at any time.5.Consequently, it is proper and appropriate to simultaneously inform and place on Notice all sitting Senators and Members of Parliament (MPs) of an allegation of misbehaviour enlivening section 72(ii) of the Constitution, and of their individual and collective responsibility under section 72(ii) when an allegation and evidence of misbehaviour is presented to them.6.To wit, this letter also informs and places on Notice all sitting Senators and MPs of the Australian Parliament who have each received a copy of this complaint by registered mail.7.Senators and Honourable Members have been simultaneously informed due to evidence capable of leading to a relevant belief the circumstances giving rise to the complaint when assessed in light of contemporary values9 justify consideration of removal of her Honour in accordance with paragraph 72(ii) of the Constitution.9 The Honourable Geoffrey Nettle AC QC, Removal of Judges from Office, [2021] MelbULawRw 14; (2021) 45(1) Melbourne University Law Review 241, at page 262.4
  5. 8.In such circumstances the Chief Justice may be required to concede the end of the jurisdiction of the Federal Court of Australia, requiring aspects of the complaint to transferred to both Houses of Parliament.9.The Explanatory Memorandum further notes:121. A complaint about performance by another judge of his or her judicial or official duties will not include complaints about matters in cases that are capable of being raised in an appeal. Such complaints are properly matters for judicial determination. It may be necessary for the Chief Justice (or other complaint handler) to consider whether the complaint relates to a matter capable of being raised on appeal. (emphasis added)10.The circumstances giving rise to the complaint in this instance cannot be raised on appeal because an appellant court lacks jurisdiction to determine a complaint submitted to the Chief Justice under section 15(1AA)(c) of the Act.11.Matters capable of being raised on appeal concern errors of fact or law. In this instance the matters constituting the complaint do not involve errors of fact or law butinvolves conduct of a judicial officer capable of being deemed misbehaviour.12.Where allegations of misbehaviour by a Judge attach to the creation of a decision purportedly in the performance of the judicial duties, the question of confirming or dismissing the alleged misbehaviour cannot be adjudicated upon by sitting Judges of the Federal or High Court of Australia, being as it is the sole responsibility and jurisdiction of the Houses of Parliament to determine such allegations pursuant to section 72(2) of the Constitution.13.Further, the complaint in this instance is incapable of being raised on appeal, as the misconduct complained of arose in a case management hearing before at a later date, hearing a summary dismissal application, being misconduct capable of being viewed as misbehaviour that continued throughout the hearing of the summary dismissal application thereby affecting the whole decision returned for that summary dismissal application, making that decision void ab initio - making an appeal impossible.14.In QYFM v Minister for Immigration, Citizenship, Migrant Services and MulticulturalAffairs [2023] HCA 15 (17 May 2023), there Honours Kiefel CJ and Gageler J observed:26. The question arising in the circumstances of the present case falls to beresolved at the level of principle within the framework established in Ebner v Official Trustee in Bankruptcy. Foundational to that framework are two propositions. One is that impartiality is an indispensable aspect of the exercise of judicial power. The other is that "[b]ias, whether actual or apprehended, 5
  6. connotes the absence of impartiality". Leaving to one side exceptional circumstances of waiver or necessity, an actuality or apprehension of bias is accordingly inherently jurisdictional in that it negates judicial power. (emphasis added)15.Where circumstances arise prior to a hearing, in this case the hearing of a summary dismissal application, involving evidence of the intentional concealment of information required to be disclosed to the parties by the Judge, being conduct possibly rising to misbehaviour, then no judicial power was reposed in the summary dismissal hearing or subsequent decision seeking to determine the hearing. Judicial power for the hearing of the summary dismissal application had been negated; made ineffective; nullified.16.A decision flowing from an exercise normally deemed proceedings where there was an absence of judicial power in the person purporting to conduct those proceedings, isnot a decision capable of appeal, as it is a decision wholly invalid by the absence of judicial power and must be vacated for being void ab initio.17.A decision lacking judicial power and authority is a decision incapable of appeal, as a court of appeal only has jurisdiction to hear appeals on a decision from a single Judge.In the circumstances present here, there was no judicial power in the Judge when purporting to render the decision, therefore there is no decision from a single Judge.18.Under these circumstances the complaint being received here by the Chief Justice under section 15(1AA)(c) the Act is incapable of being raised on appeal.B.Case Summary19.In brief, the applicant Dr Fidge alleges/alleged in proceedings VID510/2023:a.The COVID-19 products of Pfizer and Moderna deployed in Australia from early 2021 are or contain genetically modified organisms (GMOs) as defined under the Gene Technology Act 2000 (Cth) (GT Act).b.Two forms of GMO are alleged:i.Lipid Nano Particle-modRNA complexes;ii.Lipid Nano Particle-modDNA complexes being synthetic DNA contamination subsequently found in the COVID-19 products of Pfizerand Moderna.c.As a consequence, the Respondents, Pfizer and Moderna were required to seekthe grant of GMO licences under the GT Act before seeking provisional approval from the Therapeutics Goods Administration;6
  7. d.Pfizer and Moderna always possessed knowledge their COVID-19 products required the grant of GMO licences before they could be imported, transported, stored, or disposed of (individually and together ‘dealings’) in Australia;e.Having failed to apply for and obtain GMO licences for dealing with their COVID-19 products in Australia, both Pfizer and Moderna continue to commitserious criminal offences under the GT Act (sections 32 and 33);f.Proving the above elements pursuant to section 147 of the GT Act provides jurisdiction to the Federal Court to grant injunctions restraining Pfizer and Moderna from engaging in any further dealings with their COVID-19 productsin Australia.20.The proceedings:a.At the first case management hearing on 10 July 2023, Justice Snaden referredthe matter for allocation to a docket judge.b.Thereafter, sometime after 10 July 2023 Justice Helen Rofe was allocated the matter.c.A case management hearing was convened before Justice Rofe on 10 August 2023.d.The 10 August 2023 case management hearing began at 9.30am and took approximately 25 minutes before her Honour adjourned the Court.e.Much of the discussion before her Honour concerned both respondents broadly outlining the elements of a summary dismissal application they proposed to file in the proceedings.f.Before adjourning the hearing Justice Rofe issued 10 orders detailing the timeline for filing of materials by the parties for a summary dismissal application hearing set down for 20 October 2023. g.The interlocutory hearing of the summary dismissal application took place over a full day on 20 October 2023, with the judgment reserved.h.On 1 March 2024, her Honour handed down her decision on the summary dismissal application finding for Pfizer and Moderna, and dismissing the proceedings initiated by Dr Fidge.7
  8. C.Extra-Judicial Interests, Affiliations, and Extended Family21.Justice Rofe was appointed to the Federal Court on 12 July 2021 after being called to the Bar in 2001.22.When at the Bar Justice Rofe directly and indirectly represented Pfizer in at least five separate matters:a.Eli Lilly and Company v Pfizer Research and Development Company NV/SA [2003] FCA 988 (19 September 2003)b.Eli Lilly & Company v Pfizer Ireland Pharmaceuticals (No 2) [2004] FCA 850(30 June 2004)c.Eli Lilly and Company v Pfizer Overseas Pharmaceuticals[2005] FCA 67 (10 February 2005)d.Pfizer Italia SrL v Mayne Pharma Pty Ltd (VID439/2003: discontinued)e.Pharmacia Italia SpA v Mayne Pharma Pty Ltd[2006] FCA 305 (29 March 2006)23.The above matters were considerable and lengthy.24.Her Honour possibly represented Pfizer interests in a sixth matter Mayne Pharma Pty Ltd v The Commissioner of Patents & Anor (VID892/2005: note the affidavits filed byPharmacia Italia SpA with whom Pfizer had/has Australian patent licenses and other business dealings).25.The above work by her Honour with Pfizer is what is currently available in the public domain. Any chambers work undertaken for Pfizer is presently unknown.26.Her Honour completed a Bachelor of Science in 1988 with a major in genetics.27.The subject matter of the Fidge proceedings involve genetics, genetically modified organisms, and the COVID-19 drugs of Pfizer and Moderna alleged to contain unlicenced GMOs, and another form of GMOs as a contaminate.28.Until September 2021, her Honour was a member of the Bolton Clarke Human Research and Ethics Committee for up to a decade, required and responsible for the oversight of Bolton Clarke Group clinical research projects involving humans.29.The cousin of her Honour, Sir Andrew Grimwade, supported the medical research endeavours of Bolton Clark with the provision of grant monies from the Felton Trust in 2018 to 2021, where Sir Andrew was the Chairman of the Felton Bequests 8
  9. Committee (from 2004) until his death in 2023. Sir Andrew was a member of the Felton Bequest for 50 years.30.Sir Andrew Grimwade was a guest of her Honour at the ceremonial sitting of the Full Federal Court to welcome her Honour on 6 May 2022. It is fair to say her Honour enjoyed a good relationship with Sir Andrew understandably sharing Sir Andrew’s known, renowned, and lifelong interest in science and scientific research.31.Sir Andrew Grimwade was the great-grandson of Frederick Sheppard Grimwade who founded the Grimwade family pharmaceutical industry fortune in Australia.32.Sir Andrew served as the honorary President of the Walter and Eliza Hall Institute (WEHI) for 14 years before retiring in 1992. Sir Andrew had been on the Institute Board since 1963, and appears to have maintained a close relationship with the WEHIright up until his death in January 2023, as one may discern in the tributes bestowed him.33.Established in 1915 the WEHI has been ranked Australia’s leading biomedical research institute. It can be broadly stated the WEHI has received 100s of millions of dollars, if not billions of dollars, in research grants from the Australian government and various State governments.34.The WEHI has since 2007 received over US$30MM in grants from the Bill & Melinda Gates Foundation, where that Foundation and Mr Gates invested heavily in and promoted the COVID-19 products of Pfizer and Moderna (more here and here).35.The Bill & Melinda Gates Foundation has also provided over US$180MM to Pfizer, BioNTech, and Moderna over the years.36.It can be reasonably observed WEHI’s relationship with the Bill & Melinda Gates Foundation as being not only highly valued, but as also representing real opportunitiesfor future significant funding. It is also reasonable to assume the WEHI supports all ofthe efforts of Mr Gates and the Bill & Melinda Gates Foundation in respect of their support of the COVID-19 products of Pfizer and Moderna.37.The WEHI also received $13.5MM in Australian government funding for COVID related projects. 38.The Australian government is also in partnership with the second respondent, Moderna, where together with the Victorian government, billions of dollars have beenpromised in research monies to Australian research institutions. Details here, here, here, and here. It is reasonable to assume the WEHI stands to possibly receive significant monies from this Australian government partnership with Moderna. Prime Minister Anthony Albanese has spoken in strong support of this partnership.9
  10. 39.To date the WEHI has received over $600,000 from the Victorian government as part of the mRNA Victoria program, stated as:mRNA Victoria is responsible for establishing a mRNA and RNA industry in Victoria. This includes supporting:i.supply chainii.research and development for pre and clinical researchiii.commercialisationiv.manufacturing investments.40.It is entirely reasonable in light of enduring family ties and her Honour’s own scientific background and interests, particularly in the same field of genetic sciences shared by both Pfizer and Moderna, that her Honour has long been aware of the sources of funding to the WEHI, and the very public statements of support of the mRNA technologies of Pfizer and Moderna expressed by Victorian and Commonwealth Ministers, including the Prime Minister of Australia, all of whom are able to exert enormous influence over future budgets and funding allocations towards the WEHI and mRNA technologies.41.In totality the above interests, affiliations, and associations reaching back four decadesfor her Honour personally, and over a century when extended family interests of great significance are factored in, all of which an observer can reasonably assume was and is known to her Honour, suggests to a reasonable observer her Honour having and holding indirect and direct interests of support for, and of, what can be broadly termedBig Pharmaceutical interests, both domestic and international, with Pfizer having a long and significant presence both domestically and internationally, the interests of which company her Honour meaningfully and significantly assisted to protect, grow, and further establish in Australia. Via extended family ties evidencing decades of unfailing support towards the WEHI, we also observe her Honour associated with support for the COVID-19 modRNA technology platform, involving significant present sums of money and real prospects for further significant sums of research monies to the WEHI, whose modRNA endeavours are supported and endorsed by the Prime Minister of Australia, no less.42.A reasonable observer can conclude from the above that it was more likely than not her Honour would seek to see the science and technology promoted by Pfizer and Moderna, and Australian governments, that stand to significantly benefit medical research institutes like the WEHI, survive and flourish in Australia.43.Judicial proceedings of the type brought by Dr Fidge would, if successful, strike a damning blow against all the above interests, and much more.10
  11. D.Case Implications44.In the event the Fidge proceedings were/are successful, potential implications include:a.Injunctions issued by the Federal Court restraining Pfizer and Moderna from any further dealings with their COVID-19 products in Australia, and by extension, the practical halt of COVID-19 products being moved, used, or administered anywhere in Australia by any persons.b.Serious criminal charges brought against Pfizer and Moderna.c.Initiation of investigations over the operations, processes, and personnel of theOffice of the Gene Technology Regulator, including at all relevant times, all meetings and correspondence with the Department of Health and Aged Care, and in particular the former Secretary of Health, Dr Brendan Murphy, due to his being responsible for the provisional approval of the COVID-19 products of Pfizer and Moderna at all relevant times.d.Initiation of an examination to answer whether the failure to seek and obtain GMO licences by Pfizer and Moderna resulted in a failure of legally valid Informed Consent in respect of Australian recipients of the Pfizer and Moderna COVID-19 products:(i)If and once confirmed, examination of the Medical Negligence implications for Australian health practitioners, and in turn health authorities who did not inform health practitioners as to the GMO status of the drugs and the GMO risk profiles and GMO risk assessments not performed by health authorities in relation to same.e.Considerations of the possibility the Pfizer and Moderna COVID-19 products may never have been granted GMO licences due to assessed GMO risks.f.Potential civil liability in the Commonwealth Government due to failure to ensure GMO licencing processes in respect of the COVID-19 products of Pfizer and Moderna.g.Potential civil liability in Pfizer and/or Moderna due to their failures to undertake GMO licencing process.h.Potential civil liability in Commonwealth, State, and Territory governments and/or Pfizer and /or Moderna for injuries, disease, or deaths shown to be caused by the genetically modified properties of the GMOs contained in the COVID-19 products of Pfizer and Moderna, for example:11
  12. i.Ribosomal frameshifting caused by N1-methylpseudouridylation of mRNA, potentially leading to amyloids and prion-like diseases (Mulroney et al, 2023; Chung et al, 2023).ii.Modification of modRNA using N1-methylpseudouridylation leading to half-life of stabilised modRNA extended to months, making it impossible to assess effective dose delivered per vaccine vial (Ogata et al, 2022; Magen et al, 2022; Roltgen et al, 2022).iii.Uncontrolled distribution of LNPs across the body, accumulation in organ systems across blood barriers without known metabolic pathways for elimination (TGA Report, page 45).iv.Accumulation of LNPs including nucleic acid payload across blood-placenta and blood-testis barriers in sexual organs, impacting Australian reproductive health (Wang et al, 2018).v.Nuclear Localisation Signal (NLS) sequences contained in synthetic Spike protein causing binding of Spike protein to modRNA and chaperoning of the complex into cell nucleus, resulting in as yet to be determined damage and/or disruption to cellular gene expression (Sattar et al, 2023).vi.Plasmid DNA contaminations in the modRNA leading to LNP-modDNA complexes delivering synthetic DNA into cells in excessive quantities, which was not disclosed to Australian recipients (McKernanet al, 2023).vii.Pfizer plasmid DNA contaminations in the modRNA vaccines carryingSV40 sequences optimize nuclear entry, which was not disclosed to Australian recipients (McKernan et al, 2023; Dean et al, 1999).viii.Preliminary findings suggesting genomic integration and expression of the inserted DNA fragments by transfected cells (Lim et al, 2023; Wang et al, 2021).ix.Findings confirming entry into the nucleus and genomic integration and expression of modRNA (Qin et al, 2022).x.Possible damage to natural DNA through insertion of linear DNA fragments derived from either reverse transcribed modRNA or plasmidDNA contamination.12
We use cookies to provide, improve, protect and promote our services. Visit our Privacy Policy and Privacy Policy FAQs to learn more. You can manage your personal preferences, including your ‘Do not sell or share my personal data to third parties’ setting using the “Customize cookies” button below.