FEDERAL COURT OF AUSTRALIA

Reihana v Minister for Government Services (No 2) [2022] FCA 1088

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time filed by the applicant on 3 March 2022 is dismissed:

(a)    for want of competency pursuant to r 31.05 (5) Federal Court Rules 2011 (Cth); and

(b)    pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth).

2.    The applicant pay the costs of the respondents of and incidental to the objection to competency and application for summary dismissal, to be taxed if not otherwise agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time filed by the applicant on 4 March 2022 is dismissed:

(a)    for want of competency pursuant to r 31.05 (5) Federal Court Rules 2011 (Cth); and

(b)    pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth).

2.    The interlocutory application filed by the applicant on 8 July 2022 is dismissed:

(a)    for want of competency pursuant to r 31.05 (5) Federal Court Rules 2011 (Cth); and

(b)    pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth).

3.    The applicant pay the costs of the respondents of and incidental to the objection to competency and application for summary dismissal, to be taxed if not otherwise agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLLIER J

1    Before the Court are a number of objections to competency filed by the respondents in QUD122/2022 and QUD123/2022. These objections to competency, filed on 12 August 2022, concern:

    an application for extension of time for the filing of an application for judicial review, filed by the applicant in QUD122/2022 on 3 March 2022;

    an application for extension of time for the filing of an application for judicial review, filed by the applicant in QUD123/2022 on 4 March 2022; and

    an interlocutory application filed by the applicant in QUD123/2022 on 8 July 2022.

2    The objection to the competency of the substantive application in QUD122/2022 was made on the following grounds:

1.    The “decision” sought to be reviewed (as described in the draft Originating Application for Judicial Review) is not a decision to which the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) applies, because it is not a decision made, proposed to be made, or required to be made under an enactment.

2.    The “decision” to publish the form titled “Australian Immunisation Register immunisation medical exemption (IM 011)”, version IM011.210930, was not a decision made by either the First Respondent or Second Respondent, whether personally or through the exercise of delegated power.

3.    The Applicant has not shown that he is a person aggrieved by the “decision”, and therefore has standing to bring the application.

4.    The draft Originating Application for Judicial Review alleges that the decision is affected by fraud under section 6(1)(g) of the ADJR Act but does not include details of the alleged fraud, contrary to rule 31.01(2) of the Federal Court Rules 2011 (Cth).

3    Similarly, the objection to the competency of the substantive application in QUD123/2022 details the following grounds of objection:

1.    The decision sought to be reviewed (as described in the draft Originating Application for Judicial Review) is not a decision to which the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) applies, because it is not “a decision of an administrative character made, proposed to be made or required to be made under an enactment”.

2.    The Applicant has not shown that he is “a person aggrieved” by the decision he seeks to review, and therefore has standing to bring the application.

3.    The second of the proposed final orders sought by the Applicant, namely an injunction compelling the exercise of legislative power by the Commonwealth, is relief that is beyond the power of this Court to grant.

4    The respondents in QUD123/2022 object to the competency of the interlocutory application filed on 8 July 2022 on the following ground :

1.    The interim relief sought by the interlocutory application is entirely different character from the final relief sought in the draft Originating Application for which the Applicant seeks an extension of time to file and is therefore, in effect, final relief that may only be sought by originating application.    

5    In both proceedings, the respondents also contend that the proceedings should be summarily dismissed under s 31A of the Federal Court of Australia Act 1976 (Cth)(Federal Court Act) and/or 26.01(1)(a), (b) and/or (c) of the Federal Court of Australia Rules 2011 (Cth)(Federal Court Rules).

6    Before turning to the objections to the competency and the related applications for summary judgment, it is necessary that I deal with an oral application for adjournment made by Mr Reihana yesterday morning at the hearing.

ADJOURNMENT APPLICATION

7    On 9 September 2022, the applicant attempted to file an adjournment application in QUD123/2022 referable to the hearings listed on 14 September 2022 in that matter and QUD122/2022. The filing of that application was rejected on the basis that Orders of the Court dated 27 July 2022 prevented the filing of any materials or applications other than those specified therein (which did not include Mr Reihana’s adjournment application).

8    Notwithstanding the Orders of 27 July 2022 at the commencement of the hearing yesterday I allowed Mr Reihana to make an oral application for adjournment. He tendered a written application and an affidavit in support of the oral application. Ms Hoiberg for the respondents indicated that she was in a position to meet that oral application.

9    In his written application the applicant sought an adjournment in the following terms:

1.    That the Originating Application for Judicial Review QUD 123 / 22, and its "sister" application QUD 122 / 22 be suspended from operation, and the hearing set down for 14th September 2022 be vacated - while the two separate ( 19th August 2022, and 7th September 2022) High Court applications for leave to file Applications for a Constitutional or Other Writ (writs of mandamus) are finalised by the SUPERIOR High Court, as those High Court applications are directly related to the registry and Court's dubious mishandling of the interlocutory injunction application set down for hearing on the 27th July 2022, and the failure by the Court to grant an adjournment of the 31st August 2022 hearing of them interlocutory application for recusal of Justice Collier, whilst an interlocutory application seeking necessary interrogatories for the recusal application was actioned upon.

10    In his affidavit in support of the adjournment application, Mr Reihana deposed in summary that:

    he had spent a great deal of time attempting to file applications for constitutional or other writs with the High Court to appeal previous interlocutory decisions made by me in QUD122/2022 and QUD123/2022; and

    on the basis of the time he had spent doing so, he felt that he was not able to devote sufficient focus or diligence in the preparation of his submissions in response to the respondents’ objections to competency.

11    The applicant’s affidavit also annexed the first page of two applications for a constitutional or other writ which he attempted to file with the High Court. I note that on the first page of the first application, naming the parties as Toni Colin Reihana Plaintiff and Scott Tredwell Defendant, the following endorsement dated 19 August 2022 is apparent:

Pursuant to Rule 6.07.02 of the High Court Rules 2004 I direct the Registrar to refuse to issue or file this document without the leave of a Justice first had and obtained by the party seeking to issue or file it.

12    This endorsement appears signed by Justice Gleeson of the High Court of Australia.

13    On the first page of the second application, naming the parties as Toni Colin Reihana Plaintiff and Deputy Principal Registrar of Brisbane Federal Court Registry – Scott Tredwell Defendant, an endorsement appears in identical terms, albeit dated 7 September 2022.

14    The respondents in both matters opposed the application for adjournment.

15    After temporarily adjourning Court to consider the application for adjournment, I dismissed it. I informed the parties that I would publish my reasons for doing so. These are those reasons.

16    As Burley J noted in Zetta Jet Proprietary Limited v The Ship "Dragon Pearl" [2018] FCA 878 at [38], citing AON Risk Services Australia Limited v Australian National University [2009] 239 CLR 175, 179:

37    As the High Court made clear in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (AON), the types of matters that should be considered in the context of an adjournment application include: (a) the explanation for the adjournment; (b) the detriment to other parties; (c) the detriment to the court and other litigants, and; (d) the choices made by the parties as to the claims to be made and how they are to be framed. That, of course, is not an exhaustive list.

38    In the current context it is also apposite to note that in the exercise of its discretion it is appropriate for the Court also to consider the position of other litigants and confidence in the judicial system generally: AON at [5] (French CJ) and [111] (Gummow, Hayne, Crennan, Kiefel and Bell JJ). It is for the plaintiffs to persuade the Court, on sufficient material, that an adjournment is appropriate. As the plurality in AON said at [103], [106], [107], if an application that would result in an adjournment is sought and no, or no sufficient explanation is given then the application should be refused. French CJ said (at [4]) that where an application is made "late in the day", without adequate explanation and necessitating the vacation of a trial date, the applicant bears a heavy burden to show that the exercise of the Court's discretion should be in its favour.

(emphasis added)

17    In light of these considerations, I make the following findings.

18    First, the hearings listed on 14 September 2022 in QUD122/2022 and QUD123/2022 have been on foot since 27 July 2022. Without satisfactory explanation for adjournment, it would not be in accordance with the overarching purpose outlined in 37M of the Federal Court Act to grant an adjournment given the time that has passed since these hearings were first set down.

19    Second, the fact that Mr Reihana has been unable to devote as much time as he would like to prepare his submissions against the respondents’ objections to competency, because of his work preparing other applications in the High Court of Australia, is not a sufficient basis on which to grant an adjournment to the respondents’ objections to competency. The applicant has had nearly six weeks to prepare for these hearings. That the applicant chooses to engage in other litigation in the High Court is not of itself relevant. Neither the Court and nor the respondents should be inconvenienced by means of an adjournment of the hearings listed on 14 September 2022.

20    Third, the status of the High Court proceedings on which the applicant relies is unclear. As I have already noted, the annexures to the applicant’s affidavit of 8 September 2022, being the first pages of two applications for constitutional or other writ in the High Court, appear to have been stamped by Gleeson J to the effect that their filing or issue should be refused without leave of a Judge of that Court. Rule 6.07.2 of the High Court Rules 2004 (Cth)(High Court Rules) is enlivened following action by a Registrar in accordance with rule 6.07.1, which provides :

If a writ, application, summons, affidavit or other document (the document) appears to a Registrar on its face to be an abuse of the process of the Court, to be frivolous or vexatious or to fall outside the jurisdiction of the Court, the Registrar may seek the direction of a Justice.

21    Rule 6.07.2 in turn provides:

The Justice may direct the Registrar to issue or file the document, or refuse to issue or file the document, without the leave of a Justice first had and obtained by the party seeking to issue or file the document.

22    An inference may clearly be drawn that the applications to the High Court on which Mr Reihana relies for adjournment of the present proceedings have been refused filing in the High Court because they are prima facie an abuse of the process of that Court, frivolous or vexatious, or fall outside the jurisdiction of the High Court.

23    In that light I now turn to the objections to competency and the related applications for summary dismissal of the applicant’s applications.

RELEVANT LAW

24    Rule 31.05 of the Federal Court Rules is found in Part 31 Division 31.1 of those Rules. Division 31.1 concerns review by the Federal Court of applications under the ADJR Act. Relevantly r 31.05 provides:

(1) A respondent who objects to the competency of an application must, within 14 days after being served with the application, file a notice of objection to competency:

(a) in accordance with Form 68; and

(b) that, briefly but specifically, states the grounds of the objection.

(2) The applicant carries the burden of establishing the competency of an application.

(3) …

(4) …

(5) If the Court decides that an application is not competent, the application is dismissed.

25    Further, s 31A of the Federal Court Act relevantly provides:

Summary judgment

(1)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

a.    the first party is prosecuting the proceeding or that part of the proceeding; and

b.    the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.

(2)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

a.    the first party is defending the proceeding or that part of the proceeding; and

b.    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

a.    hopeless; or

b.    bound to fail;

for it to have no reasonable prospect of success.

(4)    This section does not limit any powers that the Court has apart from this section.

(5)    This section does not apply to criminal proceedings.

26    The test to be applied in determining whether or not to grant summary judgment is well-established. As Perry J stated in Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 at [7]:

7.    The principles governing the application of s 31A are well established and can be summarised as follows:

(1)    The respondent as the moving party bears the onus of persuading the Court that the application has no reasonable prospects of succeeding: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 (Cassimatis) at 271 [45] (Reeves J).

(2)    With respect to the scope of s 31A, French CJ and Gummow J explained in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at [22], that the section:

… will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the long-standing category of cases which are “frivolous or vexatious or an abuse of process”. The application of s 31A is not, in terms, limited to those categories.

(3)    Section 31A sets a lower threshold than the previous test for summary dismissal which required that the claim be “manifestly groundless” or “hopeless”: Spencer at [52]-[53] (Hayne, Crennan, Kiefel and Bell JJ). Nonetheless, the discretion must still be exercised with caution (Spencer at [24] (French CJ and Gummow J) and [60] (Hayne, Crennan, Kiefel and Bell JJ)).

(4)    An assessment of whether a proceeding has no reasonable prospects of success for the purposes of s 31A involves the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 (Kowalski) at [28] (the Court).

(5)    Consistently with this, Reeves J in Cassimatis explained at [46] that:

…the determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial. Each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect the materials available to the Court considering the application, for example, whether pleadings have been exchanged, or discovery of documents has occurred.

(6)    To illustrate the application of these principles, Reeves J explained at [47] that the moving party is more likely to succeed if she or he demonstrates that the applicant’s success relies on a question of fact that is fanciful, trifling, implausible, improbable, tenuous, or contradicted by all the available documents or evidence. Conversely, his Honour explained that, as a general principle, such an application is unlikely to succeed where, on a critical examination of all the available materials, the Court is satisfied that there appears to be a real question of fact to be determined. The latter, in his Honour’s view, is more likely to be the case where the available materials include pleadings that raise factual disputes that can truly be described as significant, substantial, plausible or weighty.

QUD122/2022

27    The applicant’s draft application for judicial review in QUD122/2022, for which he seeks an extension of time, describes the review decision as:

… the 10th December 2021 decision of the first respondent, to set the parameters and provisions for the drafting, and subsequent release for general Australian Public use, of the "Australian Immunisation Register immunisation medical exemption (IM 011)" application form, version "IM 011.210930 ", with the contents and provisions as contained therein, which are deemed "deliberately" contradictory to the Guidelines provided by the second respondent's 26th Nov. 2021 ATAGI guidelines to medical factors "that warrant a temporary medical exemption relevant for Covid-19 vaccines". Consequently, the respondents have made the type of decision captured by S. 6 (1) (a), (b), (c), and (g) of the Administrative Decisions (Judicial Review) Act 1977, and failed to take account of relevant considerations, means jurisdictional error has ensued, and the duty to "act" remains unfulfilled.

(QUD122 decision)

28    I note that that draft application was not filed, but I required it to be tendered and it is now marked as Exhibit 3(a) in both proceedings.

29    In particular in his affidavit, the applicant takes issue with the following:

9.    After receiving the form (IM 011) from head office on 6th December 2021, I had to wait four or five days before I could see my doctor about filling out that form with him, and the basis of my exemption application at that time was because I have a kidney ailment, and asthma, but those pre-existing conditions did not meet the criteria for obtaining exemption, and saving my termination from employment;

10.    Despondent, I pondered over the form (IM 011) for some days before realising, Eureka!, there was no provision for exemption from vaccination for natural immunity to Covid 19, as there had been provided for the other vaccines listed in (IM 011) for rubella, mumps, measels, varicella, and chickenpox, SO, soon thereafter I started drafting a judicial review to the Supreme Court thinking that the broad coverage of s. 4 (1) (a) of the Judicial Review Act 1991 (as opposed to the specific Qld state officials provision in s.4 (1) (b) ); did qualify me to launch a judicial review against the respondents in the Supreme Court;

30    The applicant proposes to seek review of the QUD122 decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth)(ADJR Act), and specifically the following relief:

1.    An order of or in the nature of Certiorari invalidating the 10th December 2021 contentious decision of the first respondent, and following Interrogatories and Discovery, invalidate any similar inter-connected decision that is of the same ilk as the 10th December 2021 decision;

2.    An order of or in the nature of Mandamus ordering the respondents to amend form (IM 011) to include the Covid 19 natural immunity vaccination exemption ATAGI always intended;

3.    Disbursements, expenses of the Applicant to prosecute this application, as well as "reasonable man's remuneration" for the time, effort, work and preparation to prosecute this Application for Review based upon the principles of Equity cemented in s. 7 Civil Proceedings Act 2011;

4.    Such compensatory, punitive, and exemplary damages as befit the respondents "evil";

5.    Removal from Office of the culprit respondent and any co−conspirators;

6.    Such other order this Court deems just and appropriate.

31    The grounds on which the applicant proposes to seek this relief are as follows:

i.)    The first respondent's "deliberate" failure to NOT include a natural immunity to Covid 19 option at the top left of page 2 of form (IM 011) was no accident, because it clearly states in first respondent's contentious 10th December 2021 decision/ document under the heading on the first page "What counts as a medical exemption", that you are exempt from Covid 19 vaccination if you:

~    "have natural immunity - for hepatitis B, measles, mumps, rubella, and chickenpox ONLY"

ii.)    The “reasonable man” applicant asks why the hell was the Covid 19 natural immunity option deliberately not included by the first respondent when drafting form (IM 011), when the second respondent ( through ATAGI) clearly provided for said Covid 19 natural immunity in its 26 November 2021 guidelines above;

iii.)     There is something treacherous about the way the relevant biomedical science and biomedical principles underlying a natural immunity (vaccine exemption option) have been applied to all the other diseases or viruses that vaccines are listed for in form (IM 011) - but the same scientific biomedical principles for natural immunity have not been applied to the Covid 19 viruses, and the respective vaccines listed for Covid 19;

iv.)     It is contended that there was no qualified biomedical scientific expertise, or moral ethical conscience put into the first respondent's drafting of form (IM 011), or the drafting of the catalyst contentious 10th December 2021 decision/ publication of the first respondent;

v.)     As grounds for an extension of time - In a very recent attempt 2 weeks ago in the Queensland Supreme Court to have this same judicial review subject matter heard in that Court pursuant to s. 4 (1) (a) Judicial Review Act 1991, counsel from the Australian Government Solicitor were in attendance, where that counsel submitted that it was the Minister of Health that ought to be the target of the judicial review, by and large why the second respondent is now made a party to this Federal Court judicial review;

vi.)     The above attempted judicial review BS 867 / 22 in the Supreme Court was filed on 20th January 2022, but in fact the applicant can prove that he attempted to file the same judicial review application on 23rd December 2021, but the Courthouse was closed for Christmas;

vii.)     The applicant was asked on the 2nd December 2021 by his employer to Show Cause why he didn't get vaccinated, and after much lower management failure the National Operations Manager Mr James Mcivor finally sent to the applicant on 10th December 2021 the above ATAGI guidelines, and the contentious form (IM 011) which was to be used by the applicant to obtain Covid 19 vaccination exemption;

viii.)     And shortly after the applicant received form (IM 011) from head office he noticed the failure (of the first respondent) to include provision within form (IM 011) for a natural immunity to Covid 19 exemption, because the applicant had recovered from Covid 19 infection earlier, and hurriedly he drafted the above Supreme Court judicial review;

ix.)     So any real delay in bringing this Federal Court Application for Review was due to both the filing of proceedings in the wrong court, and the delay over the Christmas etc.

QUD123/2022

The applicant’s draft application for judicial review in QUD123/2022, for which he seeks an extension of time, describes the review decision as:

…the 10th September 2021 decision of the respondents to ban General Practitioners from prescribing lvermectin as a Covid 19 treatment or preventative for, as the 10th September 2021 legislative action " Poisons Standard Amendment (lvermectin) Instrument 2021" with reference code F2021L01253 reveals the justification; " principally to impose additional controls on the possession or supply of the substance lvermectin, in preparations for oral administration for human use, to address safety risks and ensure continued availability.

    (QUD 123 decision)

32    The applicant proposes to seek review of the QUD123 decision under the ADJR Act, and specifically the following relief:

1.    An order of or in the nature of Certiorari invalidating the 10th September 2021 contentious decision of the first respondent to ban the prescribing of lvermectin by General Practitioners to treat Covid 19 viruses;

2.    An order of or in the nature of Mandamus ordering the respondents to immediately take the necessary legislative steps to approve lvermectin's liberal importation into Australia, and approve lvermectin as a treatment and preventative for Covid 19, without any restrictions upon General Practitioners prescribing it;

3.    Disbursements, expenses of the Applicant to prosecute this application, as well as "reasonable man's remuneration" for the time, effort, work and preparation to prosecute this Application for Review based upon the principles of Equity cemented in s. 7 Civil Proceedings Act 2011;

4.    Such compensatory, punitive, and exemplary damages as befit the respondents Misfeasance in Public Office/ breach of duty of care;

5.     Removal from Office of the culprit respondents and any co-conspirators;

6.     Such other order this Court deems just and appropriate.

33    The grounds on which the applicant proposes to seek this relief are as follows :

i.)    On 23rd August 2021 the first respondent's Therapeutic Goods Administration (TGA) website released a double article about the "Risks of importing Ivermectin for treatment of COVID-19" together with one about "Ivermectin is not approved for the treatment of COVID-19 ", and it is what is written in the latter article which commences

    "Treatment of COVID-19 is not a permitted indication for any TGA-approved Ivermectin products, which means that the TGA has not assessed the safety and efficacy of these products for this condition. Doctors that prescribe Ivermectin off label must consider the potential risks and benefits";

ii.)    And yet some 369 days earlier on the 19th August 2020 Professor Thomas Borody (of world renown peptic ulcer treatment fame, amongst other notable achievements), released the COVID-19 treatment protocol to Australian General Practitioners who at that point in time could legally prescribe the FDA and TGA approved Ivermectin, Zinc, and Doxycycline - together known as the Ivermectin Triple Therapy (ITT) treatment;

iii.)     Immediately the respondents are contended in jurisdictional error to have failed to take account of that highly successful "scientific" Ivermectin treatment breakthrough that Professor Borody's Ivermectin Triple Therapy provided, because in an interview with Digital Mantra Group on 19th August 2020, and relayed by ACN Newswire, Professor Borody confirms that " We have written the Federal Health Minister Greg Hunt and Victorian Premier Daniel Andrews for an urgent medical briefing to bypass the raft of "advisors" who need to know TGA-approved medicines do not require animal studies and prolonged clinical trials already done to approve them in the first place .... The Government could end the pandemic by openly encouraging GP's to prescribe these TGA approved medications";

iv.)     The respondents would have been aware at that point on 19th August 2020 that Ivermectin was discovered in the 1970s and was at that time on the World Health Organisation (WHO) list of essential medicines;

v.)    Interrogatories and Discovery will unearth what the respondents did about Professor Borody's 19th August 2020 highly successful "scientific" breakthrough Ivermectin treatment research, and in particular what COMPARABLY reliable and scientifically conclusive Ivermectin trialling and research the respondents had conducted locally in Australia, in the year time span leading up to the 10th September 2021 banning of Ivermectin by the respondents, because the respondents abovementioned 23rd August 2021 website release attempts to justify or reason that "Ivermectin is not approved for the treatment of COVID-19" because:

"More evidence-based research is required to determine if Ivermectin could be used as an antiviral medicine to fight against COVID-19 disease .... Cochrane Reviews provides globally recognised systematic reviews .... On 28 July 2021, a review of Ivermectin for preventing and treating COVID-19 .... found no evidence to support the use of Ivermectin for treating or preventing COVID-19 infection, and noted that the evidence base is limited";

vi.)    A year on from Professor Borody's expose' to the respondents of his highly successful Ivermectin Triple Therapy the respondents have dared to rely upon some Cochrane Reviews based in United Kingdom where "the evidence base is limited", compounds the respondents failure to take account of their own homegrown relevant consideration in Professor Borody's "scientific" breakthrough, but astonishingly, in a clear case of dereliction of duty; the respondents have conducted no equally comparable (to Borody's) Australian based research or review of their own, NOTHING !, to rely upon and justify their 23rd August 2021 release that "lvermectin is not approved for the treatment of COVID-19";

vii.)    The respondents contended dereliction of duty (failed duty of care) is prima facie established if all the respondents can offer up after a year from Professor Borody's Ivermectin Triple Therapy expose' to them, is some foreign off shore review with a limited evidence base , begs the questions, what the hell were they doing in the meantime, and why wasn't Professor Borody's successful Ivermectin protocol MANDATED !?;

viii.)    This supposedly esteemed Cochrane Reviews have either failed to do their homework, or have deliberately failed to acknowledge the living testament to the efficacy and complete success of Ivermectin as a Covid 19 treatment and preventative, where it is both well documented and well known by the world's medical fraternity that the largest Indian province of Uttar Pradesh with a population of 241,000,000 people hit their Covid 19 infection peak on 27th April 2021, but with the very liberal use of Ivermectin as a treatment and preventative it took just 30 days for them to achieve an 86% drop, and by the 45th day in mid June 2021 a 98% drop in Covid 19 cases !;

ix.)     With a population ten times the size of Australia the Uttar Pradesh's position must have been obvious to the esteemed Cochrane Reviews, and very relevant to their review published six weeks later on 28th July 2021, that their claims that "the evidence base is limited" was completely obliterated by the Uttar Pradesh position, and the respondents must have, INEVITABLY, been privy to these same relevancies too;

x.)    To hammer home the actual dereliction of duty issues involved in this Application for Review, the respondents own contended dereliction of duty (breach of duty of care) must be matched against the position in India where the Indian Bar Association sued World health Organisation (WHO) Chief Scientist Dr Soumya Swaminathan on 25 May 2021, accusing her in a 71-point brief of causing the deaths of Indian citizens by misleading them about Ivermectin;

xi.)     Advocate Dipali Ojha, lead attorney for the Indian Bar Association, threatened criminal prosecution against Dr. Swaminathan "for each death" caused by her acts of commission and omission in misleading the Indian people about Ivermectin, and accused Swaminathan of misconduct by using her position as a health authority to further the agenda of special interests to maintain an EUA (emergency use authorisation) for the lucrative vaccine industry;

xii.)    The "reasonable man" applicant is fully entitled to ask the Court who serves him to consider the full import of the respondents contended dereliction of duty, and whether on the balance of probabilities the respondents can be judged, through no other conceivable motive; to have been involved in the same misconduct by using their positions as a health authority to further the agenda of special interests to maintain an EUA (emergency use authorisation) for the lucrative vaccine industry ! ;

xiii.)    The first respondent National Manager of TGA John Skerritt has a science degree majoring in agriculture (his speciality is wheat), is not a medical doctor, has never treated any patients, and has no clinical experience with COVID-19, yet the TGA division he is in charge of orchestrated the banning of Ivermectin on 10 September 2021 through the above "Poisons Standard Amendment (Ivermectin) Instrument 2021", with the "Explanatory Statement" giving the seemingly pitiful reason for banning the prescribing of Ivermectin by GPs for Covid 19 treatment as being:

"Ivermectin is not currently registered or approved for the prevention or treatment of COVID-19 .... However, there has been a noticeable increase in the prescribing of oral ivermectin in Australia for this purpose. The Department is concerned that there are a number of significant public health risks associated with this practice including, for example, that persons taking Ivermectin in an effort to prevent COVID-19 consider themselves to be protected against the disease, elect not to be vaccinated as part of the national COVID-19 vaccination program, and chose not to get tested or seek medical care if they experience symptoms";

xiv.)    So Ivermectin is supposedly dangerous because it causes hesitancy to getting jabbed with a "toxic substance" that isn't even a proper and normal vaccine ( see recent US Supreme Court decision in the case of Robert F Kennedy Jr v Big Pharma );

xv.)    To compound the first respondent's contended exaggeration and fabrication of the supposed dangers of lvermectin, his "unqualified" response to Senator Rennick's question at a Senate estimates hearing on 27th October 2021 about the use of Ivermectin for Covid 19 was "3-5 mg per day is a reasonable dose and that anything higher can be dangerous" and John Skerritt referred to some obscure alleged American cases without stating the doses taken in those cases;

xvi.)    To prove the "unqualified" John Skerritt didn't know what he was talking about (exaggeration),the former manufacturer of Ivermectin Merck had no concerns with doses of 30-120 mg per day, that's up to 24 times the amount the first respondent claims as safe, and the icing on the cake is that the Australian Public Assessment Report for Ivermectin on the TGA website a study was cited that:

" .... showed good tolerability and no safety concerns at doses ranging from 30 to 120 mg, that is up to 10 times the proposed dose of 200 ug / kg for the treatment of scabies ";

xvii.)    There would appear to be much explaining to done by the respondents about how they deliberately ignored their own homegrown scientific expertise on the matter of Ivermectin being a highly successful treatment for Covid 19, and other irrefutable successes such as Uttar Pradesh province in India, but on top of the icing on the cake is a "little cherry", and that is when Queen Elizabeth was seen in a media appearance this week holding a box of Stromectol (IVERMECTIN), to cure the Covid 19 Lizzie has tested positive for, and she is reported to be following "appropriate guidelines", which the applicant suspects is the Ivermectin Triple Therapy our boy Professor Borody invented.

SUBMISSIONS OF THE PARTIES

34    The applicant filed written submissions only in QUD123/2022 despite case management orders to also require him to file submissions in QUD122/2022. His filed written submissions in their entirety are as follows:

Introduction

The applicant is aware that the respondents objection to competency application is something akin to, if not the same as to what the Kiwis would deem a strike-out application, and the legal principles relevant to strike-out actions will be utilised in this submission.

Clause 5 of respondents outline - "application for an extension of time is incompetent"

(a)    The "decision" sought to be reviewed is not a decision made ... under an enactment, and therefore does not fall within the scope of the ADJR Act"

Pursuant to s.138 of the Health Act 1953 "The exercise of power by the Secretary, or a delegate of the Secretary under this Act is subject to the directions (if any) of the Minister."

The Therapeutic Goods Administration (TGA) is a subordinate arm of the Department of Health, so all decision making by TGA "delegates" connects back to the tenure of the third respondent Minister Greg Hunt during his "watch", and his over-seeing role and duty.

Pursuant to s. 6 of the Therapeutic Goods Act 1989, the "Operation of the Act" covers:

(1) (b)    "things done by natural persons ... in so far as those things are done:

(ii)     under a law of the Commonwealth relating to the provision of pharmaceutical. .. benefits; or

(iii)     in relation ... to an authority of the commonwealth.

That is to say whoever in the Health Department, or a delegate of that Ministry, that made any decisions, applications, actions, or submissions to advance the legislative banning of Ivermectin as plead by the applicant in his statement of claim for judicial review, is by construction of the above enactments, statutorily connected to the three respondents, and cannot be accepted by the Court as some scapegoat for any of the respondents liabilities, fault, or breach of any broad duties.

As a typical example, and plead in the applicant's statement of claim, Professor Thomas Borody's official direct 19th August 2020 communication to the third respondent Greg Hunt concerning the highly successful Ivermectin Triple Therapy that Borody trialled, was typical of the type of highly relevant consideration that ought to have travelled down the chain of command to the Secretary of Health (second respondent Brendan Murphy), and particularly to the more observed TGA Manager, and the Deputy Secretary of Health (first respondent John Skerritt); when any decision making with the legislative banning of Ivermectin ensued.

The three respondents at differing times have had a direct hand in the demise of Ivermectin being accepted as a successful anti-viral covid 19 treatment and preventative, and the evidential pillars referred to in the applicant's statement of claim, that prove the first and third respondents are directly guilty of failing to take account of all relevant considerations in advancing to the legislative banning of Ivermectin, open the door for the applicant to push through his judicial review and claims.

The second respondent Brendan Murphy is bound by the wrongdoing of his subordinate Deputy Secretary John Skerritt who was publicly central in banning Ivermectin.

This submission is cut short to meet the 2nd September 2022 4pm deadline, but more will follow by opening Monday 5th September 2022 when the toddlers started getting "culled"

(errors in original)

35    In relation to the substantive application for extension of time in QUD122/2022, the respondents submitted, in summary, as follows:

    the QUD122 decision was not made, proposed to be made or required to be made under an enactment and therefore cannot be reviewed under that Act;

    regardless, the decision to publish IM 011 was not a decision made by the respondents;

    the applicant has not demonstrated he has standing to bring an application for review;

    the decision of the Full Court in Australian Vaccination-Risks Network Incorporated v Secretary, Department of Health [2022] FCAFC 135 (AVN2) is a complete answer to the applicant’s application, insofar as it makes clear that he has no standing; and

    the applicant’s proposed application alleges fraud without providing particulars as required by r 31.01(2) of the Federal Court Rules.

36    In relation to the substantive application for extension of time in QUD123/2022, the respondents submitted, in summary, as follows:

    the QUD123 decision was not made, proposed to be made or required to be made under an enactment and therefore cannot be reviewed under that Act;

    the applicant has not demonstrated he has standing to bring an application for review;

    the decision of the Full Court in AVN2 has similar application; and

    the Court does not have the power to grant the relief the applicant seeks.

37    In relation to the interlocutory application in QUD123/2022, the respondents submitted in summary that the interlocutory relief sought was unrelated to the relief sought in the substantive proceeding.

38    Given that the issue of standing is a threshold issue, it is appropriate that I examine that first.

STANDING

39    The burden rests on Mr Reihana to establish the competency of his applications before the Court. He also bears the onus of establishing standing: AVN2 at [28].

40    At the hearing yesterday, during oral submissions of Ms Hoiberg for the respondents, Mr Reihana abruptly, and without notice or explanation, left the Courtroom. I directed the Court officer to speak with Mr Reihana outside the Court, and to inquire whether Mr Reihana intended to return to the hearing. Mr Reihana’s answer as communicated to the Court officer was that he did not intend to return. The hearing proceeded in Mr Reihana’s absence.

41    Other than the submissions I have set out earlier in this judgment, Mr Reihana has not made any submissions concerning the objections to the competency of his applications or his standing.

42    Since these proceedings were filed, the Full Court has published its decision in AVN2. That proceeding concerned an appeal from a decision of a single Judge of this Court in Australian Vaccination-Risks Network Incorporated v Secretary, Department of Health [2022] FCA 320 (AVN1) as to, inter alia, whether the relevant applicant in that case had standing to seek:

… orders quashing or setting aside the decision by the Secretary to grant provisional approval with respect to the Comirnaty (tozinameran) COVID-19 vaccine sponsored by Pfizer Australia Pty Ltd (Pfizer), for use among children aged 5 to 11 years from 10 January 2022 (the Children Decision), and any determination made by the Secretary pursuant to s 22D of the TG Act to the effect that an indication of “the proposed Pfizer vaccine” was the treatment, prevention or diagnosis of a life-threatening or seriously debilitating condition for children between 5 to 11 years of age (s 22D Determination). These aspects of the proceeding are described in the Application as the Judicial Review Case.

43    Specifically, that applicant sought Orders to this effect under s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act) and/or as a “person aggrieved” for the purposes of the ADJR Act.

44    Justice Rares in AVN2 outlined the material facts at [1]-[3] of that decision as follows:

1    In early February this year, an organisation known as Australian Vaccination-Risks Network Incorporated (AVN) applied to the Court for orders requiring the Secretary of the Department of Health to consider whether to exercise his powers, or discharge his alleged duty under ss 29D, 30(1)(a) and (2)(a) of the Therapeutic Goods Act 1989 (Cth), to cancel or suspend the provisional registration of three COVID-19 vaccines, commonly known as the Pfizer, AstraZeneca and Moderna COVID-19 vaccines (the three vaccines). Alternatively, AVN sought declaratory relief to similar effect. AVN described that claim in its originating application as its “mandamus case”.

2    AVN also applied for orders quashing or setting aside the decision of the Secretary under s 22D of the Therapeutic Goods Act to grant provisional approval with respect to a COVID vaccine sponsored by Pfizer Australia Pty Limited for use from 10 January 2022 in children aged five to 11 years (the children decision) and any determination made by the Secretary pursuant to s 22D of the Therapeutic Goods Act to the effect that an indication of the proposed Pfizer vaccine was the treatment, prevention or diagnosis of a life-threatening or seriously debilitating condition in children between five and 11 years of age, (the s 22D determination). AVN described these aspects of the proceeding in the application as its “judicial review case”.

3    The Secretary filed a notice of objection to competency below, contending that AVN had no standing to apply for any of the relief it sought either under s 39B of the Judiciary Act 1903 (Cth) or as a person aggrieved within the meaning of ss 5 or 7 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). AVN then applied for leave to join Mark Neugebauer as the second applicant in case the objection to competency were upheld (the joinder application). The Secretary contended that Mr Neugebauer had no standing either.

45    I would note that the claims of the relevant applicant in AVN1 and AVN2 bear a marked resemblance to the basis on which Mr Reihana seeks to prosecute his applications in QUD122/2022 and QUD123/2022.

46    In AVN2, the Full Court ultimately upheld the primary Judge’s finding that the relevant applicant did not have standing to prosecute its application under s 39B of the Judiciary Act and/or as a “person aggrieved” for the purposes of the ss 5 and 7 of the ADJR Act. In doing so the Full Court relied on the observation of Gibbs J in Australian Conservation Foundation Incorporated v The Commonwealth (1980) 146 CLR 493 at 524-525 that :

It is quite clear that an ordinary member of the public, who has no interest other than that which any member of the public has in upholding the law, has no standing to sue to prevent the violation of the public right, or to enforce the performance of a public duty. There is no difference, in this respect, between the making of the declaration and the grant of an injunction. The assertion of public rights and the prevention of public wrongs by means of those remedies is the responsibility of the Attorney-General who may proceed either ex officio or on the relation of a private individual. A private citizen who has no special interest is incapable of bringing proceedings for that purpose, unless of course, he is permitted by statute to do.

47    Their Honours also noted the statement of Gibbs J in Australian Conservation Foundation at 530 that:

A belief, however strongly felt, that the law generally or a particular law, should be observed, or that the conduct of a particular kind should be prevented does not suffice to give its possessor locus standi.

48    In AVN 1 the primary Judge had found at [87] that the relevant applicant did not have “a special interest over and above that held by an ordinary member of the public”, and therefore did not have standing under s 39B of the Judiciary Act. Turning to whether the applicant was a “person aggrieved” for the purposes of bring an action under the ADJR Act, the primary Judge in AVN 1 noted, at [109], that the test for a person aggrieved under the ADJR Act was indistinguishable from the High Court’s special interest test for the purposes of s 39B of the Judiciary Act. As such, the applicant in AVN 1 similarly lacked standing as a person aggrieved under ss 5 and 7 of the ADJR Act.

49    Similarly, the Full Court in AVN 2 found:

40.    Because most of Ms Dorey’s evidence was limited by her Honour’s rulings under s 136 of the Evidence Act as evidence of her state of mind, her Honour did not give that evidence much weight. Indeed, it is difficult to see any error in her conclusion in that regard. Even if her Honour had wrongly limited the use of that evidence, which is not the case, those 10 factors could not have raised AVN’s standing beyond that of an ordinary member of the public, in the sense identified in the ratio decidendi of Australian Conservation Foundation 146 CLR 493. While it may be accepted, as her Honour did, that AVN and Ms Dorey had a genuine and deeply held belief in their views, that belief did not advance AVN’s position any further or give it locus standi to challenge the decisions which it sought to impugn in the proceeding below: Australian Conservation Foundation 146 CLR 493 at 530, 548. Nor did the fact that AVN was incorporated and had objects in its constitution strengthen its claim to standing for, as Gibbs J said (at 531):

A natural person does not acquire standing simply by reason of the fact that he holds certain beliefs and wishes to translate them into action, and a body corporate formed to advance the same beliefs is in no stronger position.

41.    AVN did not suggest that her Honour misapprehended its case or incorrectly summarised its argument. Rather, it cavilled with her Honour’s finding that it lacked standing. As happened in Australian Conservation Foundation 146 CLR 493, AVN was seeking to enforce public law remedies, to prevent or correct what it asserted was a public wrong, in respect of the duties which the Secretary had under the Therapeutic Goods Act, as a matter of principle and as part of an endeavour to achieve its objects and uphold the values which it was formed to promote: cf 146 CLR at 530. It follows that, as her Honour correctly found, AVN had no special interest, other than that of any member of the public, and, therefore, did not have standing to challenge the decisions the subject of its application below. Her Honour dealt comprehensively with, and correctly rejected, AVN’s arguments. There is no error apparent in anything her Honour decided.

(emphasis added)

50    Turning now to the applications before me, Mr Reihana’s prolix draft grounds of review – which in themselves are more in the nature of submissions than grounds – and the written submissions he has filed in QUD123/2022 are, with respect, more of an airing of his personal convictions rather than legitimate points of law. The applicant also, in those same documents, makes numerous unfounded accusations of “fraud” and “treachery” against various members of the public service.

51    The draft grounds of review do not demonstrate that Mr Reihana has an interest beyond that of an ordinary member of the public in respect of the decisions he identifies in his applications in QUD122/2022 and QUD123/2022. That Mr Reihana plainly believes strongly in the matters he seeks to prosecute does not equate to standing to seek public law remedies in the Courts referable to the decisions he identifies in QUD122/2022 and QUD123/2022.

52    In the context of QUD122/2022, and noting it is for Mr Reihana to establish that he has standing to prosecute his application, he has not provided any evidence to the Court suggesting that he is a person aggrieved by the publication of IM 011. The evidence on which Mr Reihana is of varying provenance, and includes social commentary on internet pages of dubious repute

53    The applicant’s tenuous contention that his employment was terminated as a consequence of not being vaccinated against Covid-19, and that this state of affairs was a direct result of the publication of IM 011 without an exception for ‘natural immunity against Covid-19’, is not sufficient to make him a person aggrieved for the purposes of the ADJR Act. Further, as the respondents correctly submit:

33. However, bearing in mind that the Applicant carries the burden of establishing competency, he has not presently put evidence before the Court that:

(a)     he had a PCR-confirmed SARS-CoV-2 infection in the six months prior to December 2021 (this apparently being when he sought to obtain the exemption); or

(b)    he attended a General Practitioner or other specialist listed on the Form for the purpose of having a temporary exemption recorded (as the Form must be filled out by a medical professional), and was unable to obtain that exemption because the Form did not permit recording of a temporary exemption due to prior Covid-19 infection.

34.    Therefore, there is presently no material before the Court on which it can be concluded that the Applicant’s interests were adversely affected by a “decision” not to include provision on the Form for temporary exemption for Covid-19 vaccination for up to 6 months due to prior Covid-19 infection.

54    In relation to QUD123/2022, and the decision Mr Reihana eventually seeks to impugn concerning the “decision” to “ban Ivermectin”, there is no evidence before the Court identifying Mr Reihana’s interests as distinguishable from those of an ordinary member of the public.

55    The same conclusion must be reached in respect of his interlocutory application concerning the administration of Covid-19 vaccinations to children between the ages of 6 months and 5 years. Again, Mr Reihana has not demonstrated that interest is other than that of a member of the public. He has no standing in that respect to pursue the public law remedies in respect of which he seeks interlocutory relief.

56    Further, I accept the submission of the respondents that Mr Reihana’s interlocutory application in QUD123/2022 is simply incompetent because it bears no relationship to the substantive application in those proceedings.

57    It follows that all three applications as filed by Mr Reihana are incompetent because he lacks the necessary standing to prosecute them.

ADDITIONAL FINDINGS

58    While I am satisfied that Mr Reihana lacks standing to prosecute his applications in QUD122/2022 and QUD123/2022 such that they are incompetent, for completeness I make the following findings.

59    First, even if Mr Reihana had demonstrated standing in QUD122/2022 and QUD123/2022, the draft grounds of review on which he proposes to rely are such that orders for summary dismissal should be made. His proposed grounds of relief in both matters are unparticularised, conspiratorial, unfounded, generally lacking in both merit and substance, and lack reasonable prospects of success.

60    Second, in any event the relief sought by the applicant in both applications cannot be granted to him by this Court.

61    In QUD 122/2022 the applicant seeks a range of relief including invalidation of unparticularised and “similar inter-connected” decisions (para 1); amendment of IM 011 to include an exemption “always intended” which is similarly not particularised; monetary compensation referable to the Civil Proceedings Act 2011 (Qld) (which is State legislation) and removal of respondents and “any co-conspirators” from office.

62    I am satisfied that the Federal Court either lacks power to order this relief.

63    In any event, I am also satisfied that the Court ought not do so because of the vagueness and lack of particularity inherent in the applicant’s claims.

64    Similarly, the relief sought by the applicant in QUD123/2022 in the nature of mandamus, to “immediately take the necessary legislative steps to approve Ivermectin’s liberal importation into Australia, and approve Ivermectin as a treatment and preventative for Covid 19, without any restrictions upon General Practitioners prescribing it” is akin to asking the Court to compel legislative action by the executive and legislative arms of government. This is not a power the Court possesses.

65    Third, in the context of QUD122/2022, the decision to release IM 011 was not made by either of the respondents in that matter. Helpfully the respondents identify the relevant administrative process resulting in the release of the IM 011 as follows:

24.    The draft Originating Application alleges that the decision was made by the First Respondent.

25.    However, any “decision” to release version IM011.210930 of the Form for public use was not a decision made by the Minister for Government Services. Nor was it a decision made by the Minister for Health and Aged Care.

26.    Amendments to the content of the Form were made by the Department of Health and Aged Care, as the Department with control of the policy underlying the Form. Amendments to the design and layout of the Form were made by Services Australia, the entity responsible for publishing the Form.

27.    Within the Department of Health and Aged Care, the Assistant Secretary in the Immunisation and Communicable Diseases Branch has responsibility for approving amendments to the Form.11 That position does not hold delegated power from the Minister with regards to making or approving changes to the Form. Nor was Ministerial approval required to be obtained for the amendments to the Form.

28.    Within Services Australia, approval to publish the amendments to the Form was given by the then National Manager of the Population Health Branch. That position does not hold delegated power from the Minister with regards to making or approving changes to the Form. Nor was Ministerial approval sought or obtained for the amendments to the Form.

66    No submissions or material contradicting these submissions has been provided by the applicant to the Court. In these circumstances I am satisfied that the respondents in QUD122/2022 were incorrectly named by the applicant.

67    Further, as the respondents submitted, the “decision” the subject of QUD 122/2022 concerning the release of IM 011 was not “made … under an enactment” within the meaning of that term as explained by Gummow, Callinan and Heydon JJ in Griffith University v Tang (2005) 221 CLR 99 at [89]. Detailed evidence of the steps leading to the release of IM 011 of the relevant form for public use was set out in the affidavits of Mr Nicholas Stoney affirmed 19 August 2022 and Ms Katrina Gerholt affirmed 19 August 2022. No submissions or evidence contradicting this evidence was provided by the applicant.

68    It follows that Mr Reihana’s applications lack reasonable prospects of success, and ought be dismissed.

CONCLUSION

69    For the reasons I have outlined I am satisfied that the applications for extension of time filed by Mr Reihana in QUD 122/2022 and QUD123/2022, and his interlocutory application filed in QUD123/2022, are incompetent due to his lack of standing.

70    I am also satisfied in light of the complete absence of merit to his proposed grounds of review that his applications should be summarily dismissed pursuant to s 31A of the Federal Court Act.

71    It is appropriate that the applicant pays the respondents’ costs in both proceedings of and incidental to the objections to competency and the applications for summary dismissal, to be taxed if not otherwise agreed.

Associate:

Dated:    15 September 2022