I shall confess to some procrastination on this topic, dear reader, as it was back on 10 October that the conspiratorial constitutional complaint against Justice Helen Rofe was dismissed. It appears Chief Justice Debra Mortimer, as we shall see, found the proposed bases for the complaint as bereft of legal integrity as any who struggled through the convoluted contortions composed by the discombobulations of retired barrister, Julian Gillespie, and company.

Memories may be refreshed about the original Fidge v Pfizer case here, the extensive accusations within said complaint (lodged 22 March 2024) here, and the High Court writ of mandamus courageously cobbled to force Chief Justice Mortimer to acquiesce to the complaint (filed 3 July 2024), here. I should rush to add that the complaint and writ were filed on behalf of Dr. Julian Fidge, who is the applicant in all things Fidge v Pfizer. Thus, rulings and complaint dismissals refer to Fidge’s arguments. However, the conspiratorial allegations serve to remind us that Gillespie, enabled by Katie Ashby-Koppens of PJ O’Brien & Associates, are the individuals shaping Fidge’s legal moves.

In her dismissal ruling (also embedded below) Chief Justice Mortimer notes that Fidge’s legal firm lodged an amended draft notice of appeal on 27 March 2024, containing 24 grounds of appeal. Mortimer highlights key allegations against J Rofe, on page 3 of her dismissal (the “First Respondent” is Pfizer):

23. There is a reasonable apprehension that the learned judge’s decision was affected by bias by reason of the factual matters and circumstances of the relationship of the learned judge to the First Respondent thereby manifesting a reasonable apprehension that the learned judge possessed a motive to decide the case in favour of the First Respondent.

24. The learned judge erred by failing to accord the appellant procedural fairness and natural justice by failing to disclose material adverse to the interests of the appellant thereby failing to grant to the appellant an opportunity to be heard adequately or at all concerning those matters, specifically the relationship of the learned judge to the First Respondent manifesting a reasonable apprehension that the learned judge possessed a motive to decide the case in favour of the First Respondent.

On 2 August Fidge withdrew the application for leave to appeal, and on 26 August the High Court proceeding was discontinued. Feel free to read more of the specifics pertaining to the relevance of both procedures over pages 4 and 5 below. A complaint to the Chief Justice may be dismissed if it relates to judicial findings subject to appeal, as Fidge was seeking. However, to his benefit it was held in abeyance. By discontinuing both leave to appeal, and the High Court proceedings (which complained about his complaint being in abeyance), Fidge was open to grounds for dismissal of the complaint as it related to “matters which could have been the subject of an appeal”. Mortimer observes:

I reject the contention in Dr Fidge’s lawyers’ correspondence that there was more to Dr Fidge’s complaint than allegations of bias (actual or apprehended; see below) against Justice Rofe. […] It was the conscious election of Dr Fidge, I infer on legal advice, not to continue pursuing this avenue. I reject the contention in the complaint that the alleged conduct could not be raised on appeal because the Court’s orders were “void ab initio” (invalid from the start). […] I consider this contention nothing more than an attempt to circumvent the appellate processes of the Court.

Mortimer continues, arguing allegations within the complaint have no basis or merit. She adds that some are scandalous, “and this provides an independent basis for their summary dismissal”. None of the allegations were presented in court to J Rofe, leading Chief Justice Mortimer to mention the “causal connection” between Fidge’s unsuccessful application and the lodging of the complaint (para 32):

In my opinion the causal connection is clear and Dr Fidge has made these complaints at least in part because his originating application was unsuccessful.

Mortimer is correct. As noted before it is actually Julian Gillespie driving this caper. We read on Gillespie’s Substack three days after the ruling, in GMO decision… when is a Judge not a Judge?;

[T]hanks to a stone turned over by a reader I did some research over the weekend revealing the following.

Gillespie then “revealed” that J Rofe had represented Pfizer between 2002 and 2006. Thus began the baseless claim that Federal Court judges must recuse themselves for such tenuously related work done as barristers, supposedly due to a conflict of interest. The complaint alleged that failure to announce this at the first hearing amounted to constitutional misconduct that justified J Rofe’s removal from the bench. This would require both Houses of Parliament, in the same session to seek the action of the Governor General to remove J Rofe “on the ground of proved misbehaviour or incapacity”.

Robert Kennedy Jr.’s Children’s Health Defense are behind a website, still active today, titled Section 72, referring to the relevant section of our constitution and urging Australians to take action by writing to MPs. Onto this first accusation of bias for having represented Pfizer as a barrister were layered the “scandalous” allegations that make no sense to any reasonable observer, but provide the apparent “gotcha” connections to COVID vaccine conspiracy theorists. These include:

• J Rofe majored in genetics when at university.
• J Rofe held membership of the Bolton Clarke Human Research and Ethics Committee.
• J Rofe’s cousin, Sir Andrew Grimwade, was associated with scientific and medical research including genetics. This included funding of medical research via his role as Honorary President of the Walter and Eliza Hall Institute (WEHI). WEHI received funding from the Bill and Melinda Gates Foundation, which has funded Pfizer.
• WEHI received money from State and Federal Governments and these governments supported COVID related health policies.
• Sir Andrew attended a ceremony to welcome J Rofe to the federal court and they both likely shared an “interest in science and scientific research”.
• Sir Andrew’s great-grandfather founded a pharmaceutical and medical aid company (1867-1930).

We should pause to remember that this case was docketed to Justice Rofe. She had no say in placing herself as the judge in the Fidge v Pfizer hearing. We see at paragraph 20 that on 10 July 2023 Justice Snaden referred the matter to be allocated to a docket judge. Let’s assume the complainants accept this and simply consider that Julian Fidge was subject to bad luck in coming before a judge with links to science and past employment involving Pfizer. The issue at hand is has the judge acted impartially. Are assumptions enough to confirm bias, and what would become of the legal system if every judge was subject to post hoc scrutiny? Over paragraphs 37 – 42, Mortimer discusses the legalities and case law of determining bias. Of interest in considering Rofe’s involvement with Pfizer, Mortimer adds in paragraph 43 and 48:

Finally, it is well established that “[a] prior relationship of legal adviser and client does not generally disqualify the former adviser, on becoming a member of a … court … from sitting in proceedings before that … court … to which the former client is a party”. […]

It is likely that every Judge on the Federal Court who has been appointed from the independent Bar can count amongst their former clients several such regular litigants. The discharge of the work of the Court, and therefore its administration of justice, would fall into disarray if a Judge could never preside over a proceeding involving an institutional or corporate litigant that, at some stage in the past, they had represented. The situation might be different for an individual litigant, but that is not this situation.

At this point we should consider that if past association and assumed bias were deemed relevant criteria for judging how professionals comport themselves in the legal sphere, how do we judge Julian Fidge’s solicitor Katie Ashby-Koppens? At the time of the hearing and still today, Ashby-Koppens was a member of the steering committee for the World Council for Health. An organisation fact checked by the Australian Associated Press and described as “figures who have promoted unfounded conspiracy theories”. Known for spreading misinformation to discourage COVID-19 vaccination and promote useless COVID-19 treatments, the group was responsible for attempting to launch widespread acceptance of the non-existent “post COVID-19 injection syndrome”.

How impartial is the advice Ashby-Koppens gives to clients? With a history of promoting conspiracy theories, is it any wonder this complaint is based on a conspiracy theory? How does her anti-vaccine ideology sit with professional boundaries? How might this impact PJ O’Brien & Associates? Professional conduct rules are clear:

Regarding duty to the court and the administration of justice:

Lacking professional distance from your client (or their cause) risks distracting you from this duty, which is paramount and prevails to the extent of inconsistency with any other duty. Your objectivity, your independence and your forensic judgement – on which the court relies – may be reduced.

Duty to avoid compromise to integrity and professional independence:

Your integrity and trustworthiness are fundamental to your reputation as a lawyer and to your relationships with clients and other parties in the justice system. When a lawyer fails to act with integrity because their professional boundaries are compromised, the integrity of the justice system as a whole is undermined.

The PDF below includes the decision on the complaint, the relevant ruling of Justice Helen Rofe (p.14), a media release from PJ O’Brien & Associates (p.52), the complaint (p. 54) and Fidge’s draft notice of appeal (p. 77).

Ultimately, Mortimer reasons as anyone not peering through the lens of conspiracy theory ideology would do. Simply, there is no fair minded observation in the complaint. However, the assertions might be explained by wider speculation about the role of the pharmaceutical industry. This, observes the Chief Justice, “appears to be held by Fidge and supported by his legal representatives”. Sir Andrew, who died in 2023, had no logical connection to Fidge’s proceedings. Nor is there any connection between his work, institutes he was associated with and the judicial decisions of Justice Rofe. The allegations are without merit and “likely insulting to Justice Rofe, and to Sir Andrew’s family”. Fidge’s team makes incorrect use of the Guide to Judicial Conduct citing mention of “cousins”. Yet far from deceased family members, the Guide is referring to proceedings where a family member is involved as a witness, a party or a legal adviser.

Quite rightly, Chief Justice Mortimer addresses the essence of the complaint. Namely that Justice Helen Rofe intended to deceive Fidge about her career and family. She quotes from the complaint, using her own emphasis:

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.

Mortimer states that if intended, this “would be a scandalous and unfounded allegation to make, and very serious indeed.” She notes it might justify referring “the firm and lawyers to the appropriate Law Society”. Which again brings to mind the importance of professional conduct rules, and the conduct of lawyers in these cases and in forming complaints. The Chief Justice is generous to decide the allegations are “inappropriate forensic flourishes”, demonstrating “poor judgement” and not intending to be scandalous insults to Justice Rofe. Gillespie and Ashby-Koppens sought outcomes which would require judicial power to grant.

1. A declaration the decision of Justice Rofe dated 1 March 2024 was void ab initio.
2. A declaration the decision of Justice Rofe dated 1 March 2024 is unappealable.
3. An order wholly vacating the decision of Justice Rofe dated 1 March 2024.
4. A declaration the Summary Dismissal hearing of 23 October 2023 was void and of no judicial effect.
5. An order requiring the Federal Court to pay all costs of the parties relating to the Summary Dismissal application on an indemnity basis.

Debra Mortimer then follows with this memorable paragraph:

Those contentions are so misconceived that it is difficult to understand how qualified lawyers could possibly have considered s 15(1AA) of the FCA Act could extend to exercises of judicial power. These requests, if they might be beneficially characterised as such, demonstrate the level of misconception and misunderstanding behind the entire complaint made by Dr Fidge, especially when considered with the abandonment of his application for leave to appeal.

Conclusion

In very simple terms this complaint alleged that a judge with a background in science and a historic employment history representing Pfizer as a barrister, intentionally concealed these facts for nefarious reasons. Namely, that she always intended to find the applicant lacked standing to bring his case, because she was part of a larger conspiracy to suppress public rights and protect the profits of pharmaceutical companies. The “wider speculation” required to believe such nonsense wasn’t ignored by Mortimer. There is no evidence to support any of the allegations in the complaint. Yet Fidge’s legal team sought to expunge J Rofe’s decisions and have costs resolved to their client’s benefit.

As usual with conspiracy theorists, Julian Gillespie has rejected the findings – which essentially refute his ideological view. In a post criticising the framework of procedural bias that Chief Justice Mortimer used, he contends she has failed the public, making much of what he believes a “reasonable observer” would actually conclude. He argues it was a “high profile case” and as such, Mortimer’s dismissal neglected “judicial transparency, integrity, and public trust”. I predict Ashby-Koppens would agree. Again I’m reminded of Professional Conduct Rules. Lawyers have a duty not to engage in conduct that would question their fitness to practice law, or diminish public confidence in the administration of justice. As a retired barrister, Gillespie need not worry about the following (R. 5.1.1 & 5.1.2):

Fitness to practise law requires the personal confidence of your fellow practitioners and judges, which you risk losing if you are perceived to be too closely aligned or involved with your client. Similarly, if your behaviour with clients would cause the general public to doubt or question your integrity, you are potentially compromising the reputation of the profession.

When it comes to COVID conspiracies and misinformation, the medical profession’s regulators in Australia are equipped to take action against members. If legal cases and complaints steeped in misinformation continue, it would not be overdue if appropriate Law Societies acted to preserve the reputation of their profession.