Investigation begins into Federal Court Judge accused of hiding Pfizer ties A Federal Court Judge did not disclose ties to Pfizer or longstanding connections to biomedical research, while presiding over a covid-19 mRNA vaccine lawsuit. Maryanne Demasi, PhD After significant delays, the Chief Justice of the Federal Court of Australia has now confirmed an investigation has begun into the alleged misconduct of one of its own judges. Federal Court Judge Helen Rofe is the subject of the investigation after presiding over the Fidge v. Pfizer, Moderna case. Judge Helen Rofe, Federal Court of Australia Julian Fidge, a General Practitioner and pharmacist alleged the mRNA covid vaccines contain genetically modified organisms (GMOs) and that Pfizer and Moderna failed to obtain the necessary licenses to distribute the vaccines in Australia - a criminal offence under the Gene Technology Act 2000. But before any evidence could be heard, Judge Rofe dismissed the case in March 2024 on the basis that Dr Fidge lacked standing, i.e. he was not an “aggrieved person” for the purposes of trial and therefore had “no reasonable prospect” of success. After the decision was handed down, it was revealed that Judge Rofe had undisclosed ties to Pfizer. When at the Bar, she had represented Pfizer on at least five occasions between 2003-2006. Further, Judge Rofe had family ties with the Grimwade pharmaceutical fortune, which later ran the Walter and Eliza Hall Institute, a biomedical research organisation that joined forces with Mermaid Bio in 2022, to develop mRNA vaccines. Complaint to the Federal Court Law firm PJ O’Brien & Associates, acting for Dr Fidge, filed a complaint with Federal Court Chief Justice Debra Mortimer, who is now investigating Judge Rofe. The complaint against Justice Rofe alleges serious misconduct possibly rising to misbehaviour for failing to recuse herself from the case or disclose her significant prior relationship with Pfizer and the pharmaceutical industry. Essentially, the complaint argues that withholding this information gives rise to the inference that Judge Rofe deliberately concealed the information, connoting dishonesty. Share Katie Ashby-Koppens, the instructing solicitor said, “A judge is duty bound and obliged to inform all perceivable conflicts - even if not actual - to all parties to a proceeding with sufficient time for them to ask or make application for a judge's recusal.” “Given the nature and extent of perceivable conflicts, we say her Honour was duty bound to advise the parties at the first case management conference, or preferably have declined the file from the registrar when she was first offered it,” she added. A person with blonde hair wearing a black jacket Description automatically generated Katie Ashby-Koppens, solicitor PJ O’Brien & Associates Ashby-Koppens points to case law that suggests it is not a conflict for a judge to hear a matter of a former client if the subject matter is different, and so this should have given Judge Rofe the confidence to disclose her history. But she didn’t. Given there are 16 other judges who sit on the Federal Court Melbourne Registry, Ashby-Koppens said Judge Rofe’s decision should be voided and heard by a different judge with no actual or perceived conflicts of interest. Parliament to investigate A copy of the complaint has also been sent to the Upper and Lower Houses of Parliament to investigate Justice Rofe’s conduct, as is their prerogative under Section 72(2) of the Constitution. “If Judge Rofe did previously have dealings with Pfizer she should have disclosed those dealings,” said Queensland Senator Gerard Rennick. “If she didn’t disclose them, then we need to ask why she didn’t disclose those dealings or it will undermine faith in the Judiciary.” Ashby-Koppens added, “If the allegations of misbehaviour are proven, the Parliament may remove Justice Rofe from the bench.” The last time there was a Parliamentary investigation into potential misbehaviour of a judge was in May 1986, in the case of Justice Lionel Murphy QC, back when Bob Hawke was the Australian Prime Minister. Justice Lionel Murphy QC, passed away Oct 1986 Justice Murphy was accused of attempting to bribe police officers, encouraging the intimidation or harming of several ­people and improperly using his ­influence to help Sydney organised crime boss Abe Saffron win lucrative business contracts. The Commission of Inquiry was cut short when Justice Murphy announced he was dying of cancer – he passed away in October 1986. Judicial independence Judicial independence and impartiality are core principles that apply to judges, juries and other officials in the justice system. It is incumbent on judges, for example, to disclose any actual or apprehended bias that may exist in a case they preside over. ‘Apprehended’ bias is if there are factors that could have influenced a judge’s decision, or if “a fair-minded lay observer with knowledge of the material objective facts” might believe the judge is not impartial when ruling on a matter – this is the alleged bias being levelled against Judge Rofe. However, there have been longstanding concerns that the rules and framework around judicial bias are not clear. In August 2022, the Australian Law Reform Commission published a report following its inquiry into judicial impartiality and bias. One of the recommendations was to establish a Federal judicial commission because existing mechanisms for raising allegations of actual and apprehended bias were “not sufficient to maintain public confidence in the administration of justice.” The Law Council of Australia also supports the creation of a Federal judicial commission to improve procedures for responding to complaints about judicial bias and foster confidence in the independence of the judiciary. Australian President of the Law Council, Greg McIntyre SC, said, “Key to impartiality is the need for clarity and transparency on procedures relating to bias, to assure court users that such issues can be dealt with in a fair and effective manner.” Greg McIntyre SC, President, Law Council of Australia McIntyre would not comment on real or hypothetical scenarios relating to the appropriateness of a judge recusing himself or herself from a matter, or in this case, Judge Rofe. However, he did say, “Judges of federal courts would be expected to be informed of, understand and follow all the laws and rules to which they are subject to” and that the public needs clear guidance on “the steps to take if they still believe bias exists.” When asked if there was an expiry date on the disclosure of conflicts, McIntyre said guidance relating to potential bias does not have to be “explicit or rigid” in terms of the duration of time after which a conflict of interest needs to be disclosed. Judge Rofe was approached for comment but no response was received prior to publishing. *Sept 5 UPDATE: Judge Rofe’s response from the Federal Court -- The Court makes no comment on the matter. Give a gift subscription https://blog.maryannedemasi.com/p/investigation-begins-into-federal