The Australian Courts have blocked a legal challenge over Moderna’s and Pfizer’s mRNA Covid vaccines on a technicality, stalling efforts to raise the alarm over alleged unregulated genetically modified organisms (GMOs), including high levels of DNA contamination, in the vials.

The Federal Court rejected Dr Julian Fidge’s application to seek an injunction preventing Moderna and Pfizer from distributing their products in Australia, in a decision handed down today, Friday 1 March, almost nine months after the application was filed. Dr Fidge has been ordered to pay costs.

Dr Fidge alleges that the mRNA Covid vaccines contain GMOs in two forms – the LNP-mod-RNA complexes, and plasmid DNA contamination – for which Pfizer and Moderna never obtained the proper approvals from the Office of the Gene Technology Regulator (OGTR).

It is a serious criminal offence under the Gene Technology Act (2000) to “deal with” unapproved GMOs in Australia. 

The OGTR denies that the Pfizer and Moderna vaccines are or contain GMOs, or that the products required a licence from the OGTR before being distributed in Australia, characterising such claims as “misinformation” in a statement released in December of last year.

However, the case will not be heard in the Courts. Justice Helen Rofe dismissed Dr Fidge’s application on the basis that he lacks standing due to not being considered an “aggrieved person” under the Act, and therefore “has no reasonable prospect of successfully prosecuting the proceeding.”

In legal filings, Dr Fidge, a Victorian pharmacist and General Practitioner (GP), argued that he has standing in professional, personal, private, and public capacities.

“I’ve been vaccinated with these mRNA Covid-19 vaccines, and I’ve vaccinated thousands of patients, including my own children,” Dr Fidge said at the time of filing, in July 2023.  

“It’s hard to understand how I am not an aggrieved person, when I’ve not been able to satisfy my legal, moral and ethical obligations to provide informed consent to all my patients that they will receive GMOs in these vaccines,” he stated today in response to the decision.

However, Justice Rofe determined that as the administration of GMOs does not fall under the range of activities specified as dealings under the Gene Technology Act, Dr Fidge did not have standing in his professional capacity as a GP.

Furthermore, Dr Fidge’s claim of standing in his personal, private and public capacity was not valid because, “the applicant must establish that the grievance he will suffer as a result of the breaches is beyond that of an ordinary member of the public and is more than a mere emotional or intellectual concern,” stated Justice Rofe in her decision.

This begs the question – if Dr Fidge is not an aggrieved person, who is?

Justice Rofe offered two categories of people who could be considered an aggrieved person under the Gene Technology Act (2000). First, individuals who have had direct contact with GMOs under the dealings stipulated in the Act, such as, “laboratory technicians, individuals involved in manufacturing GMOs or individuals responsible for transporting GMOs.”

The second category encompasses individuals who may have been exposed to biosafety risks in the course of GMO dealings. Justice Rofe listed a transport worker who was handling vials of unapproved GMO products or the owner of land on which GMO products were being disposed of as examples.

Instructing solicitor Katie Ashby-Koppens, of Sydney law firm PJ O’Brien & Associates, said that the decision overturns legal tradition by introducing ‘standing’ to dismiss a general civil action brought against a company for wrongdoing.

 “This is the latest decision in a pattern where the courts are simply refusing to hear evidence by throwing actions out at the earliest preliminary phase possible,” said Ashby-Koppens in a statement responding to Justice Rofe’s decision.

“It is concerning that where cases have been brought in respect to large pharmaceutical interests that the courts are not allowing the cases to get beyond first base.”

Indeed, the legal blow is one of a string of Covid vaccine-related cases dismissed by the Courts on narrowly interpreted technicalities.

A high-profile case brought by members of Dr Fidge’s legal team on behalf of the Australian Vaccination-Risks Network (AVN) and foster carer Mark Neugebauer, was also dismissed by the Federal Court in June 2022 on the issue of standing.

The action sought to prevent the administration of the Pfizer vaccine to children aged five to 11. The legal team expressed surprise at the Judge’s decision to reject the case on standing given the two applicants’ special interest in the matter.

Then, in an unprecedented in-chambers decision, the High Court of Australia refused in March 2023 to hear the Australian Babies case brought by the same legal team on the basis that it would, “unduly divert the Court from its principal functions.”

The Australian Babies case sought to revoke the provisional approval of Moderna’s SPIKEVAX vaccine for babies and toddlers aged six months to five years old, alleging that it was unlawful and unsafe.

Instructing solicitor Peter Fam, of Sydney firm Maat’s Method, said of the High Court’s decision at the time, “I think they have denied our applicants procedural fairness. The typical process is to at least appear once before the Court to discuss the case. They didn’t even let us appear.”

Dr Fidge’s legal team said they are reviewing Justice Rofe’s decision and are considering an appeal.

This article was first published at Dystopian Down Under

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