GMO decision .. when is a Judge not a Judge?

.. that is the question

good Substack folk,

we have received many messages of outrage following the decision by Justice Rofe handed down 1 March in our GMO proceedings

a great deal of review and discussion has already been underway

yes, discussions definitely include appealing

but .. before we travel down the appeal path

.. and thanks to a stone turned over by a reader

.. I undertook some research over the weekend revealing the following


before being elevated to the Federal Court of Australia, Justice Rofe appears to have directly and indirectly represented Pfizer in at least 4 separate matters when a barrister

Eli Lilly and Company v Pfizer Research and Development Company NV/SA [2003] FCA 988 (19 September 2003)

Eli Lilly & Company v Pfizer Ireland Pharmaceuticals (No 2) [2004] FCA 850 (30 June 2004)

Eli Lilly and Company v Pfizer Overseas Pharmaceuticals [2005] FCA 67 (10 February 2005)

Pharmacia Italia SpA v Mayne Pharma Pty Ltd [2006] FCA 305 (29 March 2006)

the Eli Lilly proceedings in toto were considerable and would have involved considerable payments for services

Pharmacia Italia SpA appears to be a joint venture with Pfizer .. references HERE and HERE

the above work with Pfizer is what we currently know about

.. it is presently unknown what, if any, other work Her Honour performed for Pfizer

.. there could be other prior engagements with Pfizer involving Her Honour that did not reach the Courtroom and therefore public record, and there could be advisory briefs not involving litigation

the above proceedings demonstrate significant prior involvement for monetary reward with a Respondent in the GMO proceedings, which ..

Her Honour failed to disclose

.. typically, a judge who has had prior dealings with one or more parties to proceedings discloses all details of their prior involvement and invites the parties to make submissions on whether that judge should recuse themselves

.. this did not occur with Justice Rofe

.. further

.. and the Chief Justice and many other Justices of the Federal Court also appear to have known Justice Rofe had these prior dealings with Pfizer

yet Justice Rofe was kept on the case

the judicial rules around Bias and Reasonable Apprehension of Bias have been powerfully developed in this country and were recently articulated again by the High Court in:

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15 (17 May 2023)

quoting paragraph 26 in QYFM:

The question arising in the circumstances of the present case falls to be resolved at the level of principle within the framework established in Ebner v Official Trustee in Bankruptcy^[40]. Foundational to that framework are two propositions. One is that impartiality is an indispensable aspect of the exercise of judicial power^[41]. The other is that "[b]ias, whether actual or apprehended, connotes the absence of impartiality"^[42]. Leaving to one side exceptional circumstances of waiver or necessity^[43], an actuality or apprehension of bias is accordingly inherently jurisdictional in that it negates judicial power.

.. and another High Court case looking at the question of bias or a reasonable apprehension of bias:

Charisteas v Charisteas [2021] HCA 29 (6 October 2021)

within which the High Court observed at paragraph 11:

Where, as here, a question arises as to the independence or impartiality of a judge, the applicable principles are well established^[3], and they were not in dispute. The apprehension of bias principle is that "a judge is disqualified if a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide"^[4]. The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial – that it is conducted by an independent and impartial tribunal^[5]. Its application requires two steps: first, "it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits"; and, second, there must be articulated a "logical connection" between that matter and the feared departure from the judge deciding the case on its merits^[6]. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed^[7].

the legal team for Dr Fidge now must consider the above issues and more in the coming days

more details when they are available .. look for Part 2

look forward to reading your comments

Jules