AVrN v TGA et al case management report

The first case management hearing in the AVrN’s attempt to get all the approvals for the COVID vaccines removed took place earlier this afternoon.

Her Honour Justice Melissa Perry was quick early on to identify an issue between two applications that had appeared conflated when they should be separated. That being the core application for the vaccine approval to be removed in general, and the injunction to get the approval for the kids removed specifically. So she asked for a follow up concise statement from the applicant to address this and some other issues.

To my disappointment, the respondent didn’t give notice of an application to have the matter struck out as an abuse of process and with no prospect of success. But what was done was that notice was given that the respondent’s position was that the applicant “lacked standing” to make the application. The effect of this in the end would in fact be the same – the matter would be tossed albeit for the different reason of being outside the Federal’s Court’s original jurisdiction as such. The respondent was also asked for a concise statement.

Hopefully both of those are unrestricted documents.

In addition – and this makes sense – is the note about the reasons for the TGA’s decision for approval. The public reasons are all there and always have been, but there are additional matters that would come under commercial confidentiality, or the equivalent government confidentiality. All this would do is prevent the publication of the documents (or rather no one outside of the proceeding could see it – including me, and rightly so). Such an application would need to be made through the Administrative Decisions Judicial Review Act and not Freedom of Information (an application under the latter would fail as the documents would be exempt from that).

There was a lot of cleaning up to do, and when the legal representative for the applicant, Mark Robinson (it would appear that I was wrong on my January 12 blog entry about him not knowing about this – add another fool who is putting ideals ahead of actual law alongside the idiots who prosecuted the Kassam and Henry cases in the Supreme Court of New South Wales) claimed they were ready to go, Her Honour respectfully informed him that they were not, and rightly so. One paragraph in the Statement of Claim needs better particulars for a start (I agree – it’s too general) and as a result the originating application needed to be amended. And one assumes substantively enough for it to need to be served on the respondent again.

One more note – the respondent hasn’t filed anything as of yet. One assumes that will be done over the next two weeks. The next case management hearing has been set down for March 3 at 4:15pm.

I will be keeping an eye on the AVrN website and their Facebook page for any more news from their end. There are three mystery Affidavits that have been filed by the applicant as well. I would love to know who they are from, but there is no way to find out unless I apply for access as a non party. Whether or not I do that is a decision I still have to make, but at present pending any changes in the meantime I won’t make that decision until after the next hearing on March 3.

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AVrN file in the Federal Court after all

Back on January 12 in the last entry here I speculated that Meryl Dorey and her precious network were lying about taking the TGA to the Federal Court.

The information I was relying on hasn’t changed. They didn’t file when they said they did.

But there is now new information confirming that they have indeed filed. The filing is here;

https://www.comcourts.gov.au/file/Federal/P/NSD52/2022/actions

What they have also done is publish on their website the originating application, a general steps taken statement (required as part of the Federal Court Rules) and two Affidavits. There is a third but the Affidavit itself is not there – only the annexures. That’s the Affidavit of Peter Lam – the lawyer running this case.

The two published are from Dorey and a statistician called Lisa Mitchell. A statistician, claiming to be an expert witness.

My views are as follows;

For Dorey’s Affidavit, the reference to the experiences of other individuals should be redacted. It’s hearsay – and the people referred to are available so they have to provide their own Affidavits or be available as witnesses. The claims made by Dorey herself aren’t backed up by medical evidence in any of the appendices so unless she coughs that up those claims end up being hearsay as well.

For Mitchell’s Affidavit, the whole thing should be redacted. Her expertise is outside the relevant lines of this case. She is using statistics that are not appropriate – that is the number of reports of adverse events. The key in decision making is the number of the reports that are confirmed – a factor that Mitchell fails to acknowledge. Claiming the reports are an issue require medical back up and an expert witness from that sector. They don’t have one.

For the originating application – first things first. I was originally planning on intervening. But for me to be able to do that, I need a cause of action – and there isn’t a door available for me to do that. But in the good news, it is a very poor application. It relies entirely on the reports, believing that to be enough for the TGA to withdraw the approvals. It isn’t. The reports have to be confirmed as I said. No confirmation means everything said in the application is manifestly wrong and untenable.

This case – subject to a skim of Lam’s Affidavit if it can be found – is dead in the water. Even with Lam’s covering document I can’t see anything changing judging by his massive list of annexures. The TGA should apply to have it thrown out as an abuse of process with no prospect of success.