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Different Rules

Only the legal profession could possibly allow one of its own - a barrister - to continue practicing subsequent to bankruptcy even though that barrister becomes heavily involved in the management of client corporations. The rest of us (i.e. ordinary Australians) are restricted from doing so. And another example is fraud, no matter how extensive the criminal conduct or how brazen. So, before I begin this report let’s take a look at the character of Jeff Spender:

By reading further you will come to understand how Jeff Spender QC (Australia’s longest serving federal court judge) was finally charged under two sections of the Commonwealth Crimes Act 1914 - s.32 “Judicial Corruption” and s.43 “Attempt to Pervert Justice”.

Reflections of an Investor

Imagine, for just a few moments, that you have invested a quarter of a million dollars of your family savings into a mechanical carparking project which was, during the first four and a half years of development, plagued with violent intervention on the part of a fraudulent inventor. Nonetheless, you shared in the joy of winning World Bank funding for your European manufacturers and took pride in seeing the company you had invested in being awarded the highest export market development grant (EMDG) available in our nation.

You then derived a deep sense of achievement by working tirelessly to develop your Europark mechanical carparking franchise in a designated international territory. But now for the past three years you, along with many others, have been forced to endure a federal court battle based on the lies and deception of government officers as they move vigorously to support a false complaint made by that fraudulent inventor. Fortunately, expert witnesses testify continuously in your company’s favour, giving you hope that life can continue as it should. You eagerly await the results of trial.

After ten agonizing months, enter Justice Spender. He slams all of you with his litany of vile fabricated reasons for his judgment which culminates in the world being told that your franchise marketing program is nothing more than a scam. And I say “your”, because you, along with other franchisees, investors and staff, assisted in the development of that program.

Years of work and millions of dollars are now lost. And to seal any hope of recovery the judge has prevented all of you from ever again developing, manufacturing or marketing any form of mechanical carparking technology even remotely similar to the Europark system.

Typically, Australian bureaucracy had once again forced Australian technology offshore, but not before seconding the support of one of Australia’s most notorious judges.

The Judge

Justice Jeffrey Ernest John Spender retired as a federal court judge in 2010 after 26 years on the Bench – a term of judicial office that served only to cap an extensive history of questionable conduct within the Australian legal system.

Even before his appointment as a justice of the Federal Court of Australia he had begun tainting his career with dishonesty. The following link is an excerpt from Chapter One of Beneath The Bench. It is a clear indicator of that dishonesty; and on this particular occasion be was acting as Crown prosecutor in the Russell Island conspiracy case.

Yet, it was his dishonesty as a judge – moreso than as a legal practitioner – that would cause such irreparable damage to so many innocent Australians. And in the words of Charles de Montesquieu: “There is no crueller tyranny than that which is perpetuated under the shield of law and in the name of justice”. Such was the scarred profile of Jeff Spender.

It has also been said and universally accepted that the abuse of judicial office is a crime more heinous than murder.

And during Justice Spender’s reign as a federal court judge, his willingness to apply law in protection of corrupt government officers had caused financial ruin, suicide, murder, and terminal illnesses. The question has to be asked why the longest serving federal court judge in Australia was repeatedly denied the role of Chief Justice.

To many, he became known as the ‘go to’ man if a government agency needed a judge to do something underhanded ... something unlawful ‘under the shield of law and in the name of justice’.

In the annals of Australian legal history the name, “Justice Spender”, became synonymous with the term, “judicial corruption”. The Commonwealth Crimes Act 1914 (as amended) defines this term.

The Commission

The Trade Practices Commission (TPC) in Australia was renamed the Australian Competition and Consumer Commission (ACCC) in November 1995. A primary function of this government agency (“Commission”) is to prevent boycotting and anticompetitive conduct which often occurs within commerce. And yet, in many instances, the Commission’s own actions have been just that... boycotting and anticompetitive, and its image tarnished by officers such as Terrence John Guthrie, former Assistant Commissioner.

In the words of one Australian judge: “It appears that the Commission has inadvertently stepped between two competitors”. He was right. And it usually occurs to the extreme disadvantage of one of the competitors. But once that mistake is realized, the Commission will never admit error and never turn back. They have been known to pursue an innocent competitor to the point of total destruction simply to justify their conduct.

In the following brief report it was two former solicitors for the Australian Government Solicitor (AGS), Peter John Toy and Lesley Ann Ziukelis (both acting as legal practitioners for the Commission), who conspired with the Commission’s Guthrie to fabricate and pervert evidence in order to protect themselves and their respective government agencies. It was also these three who ensured – through manipulative means – that Justice Spender would sit as trial judge in their federal court action against Garth Eaton and his Europark companies.

Background (In Brief)

Willem Van Der Horst, a Dutch inventor, approached Garth Eaton in November 1989. He claimed to have invented a revolutionary mechanical carparking system. Eaton appointed a patent attorney to determine the novelty of the concept and a technology development agreement was subsequently entered into between the inventor and Eaton’s company, Parktec International Pty Ltd (“Parktec”) on 15 June 1990.

As the early months of development passed, Van Der Horst’s claims repeatedly proved to be false. He had also become violent and disruptive to technical staff as each claim was challenged and dismissed. By September 1991 his false claims and disruptiveness had constituted 34 breaches of the June 1990 agreement. He was dismissed, forfeiting any further right to income. But Eaton allowed Van Der Horst's royalties to remain intact – a worldwide royalty stream that was potentially worth $12million per annum.

Van Der Horst also left the employ of Parktec with his two invalid patents; the results of his fraudulent claims and at a development cost of almost half a million dollars of unnecessary expenditure on the part of Parktec investors and franchisees.

The Parktec mechanical carparking technology was redeveloped and renamed the Europark technology. International franchising kicked off in May 1994 with a full page advertisement in the Weekend Australian.

At this stage, Van Der Horst’s solicitor, Peter Smith, had become a co-shareholder of Van Der Horst’s company, Quicker Parking and Storage Systems Pty Ltd (QPSS) which now owned his two invalid patents. Smith – not knowing that he had been duped by Van Der Horst – complained to the Commission that Eaton’s companies were franchising his client’s patents. In reality, Peter Smith had been conned out of thousands of dollars and had been convinced of the validity of the two patents.

[In the early 1990s some 25% of Letters Patent granted by the Australian Patents Office were invalid (known as ‘bad’ patents) because of flawed (unsophisticated) searching techniques used by examiners.]

Based on a false complaint, the Commission moved swiftly against Eaton, his companies, franchisees, investors, staff, and agents. No opportunity was granted to discuss the false claims made against them in spite of a letter to the Commission detailing the nature of a police investigation into strong allegations that Van Der Horst had defrauded Eaton’s group. Police were close to laying charges against him.

A Fortnight Too Soon

The aggression of officers within the Commission was unstoppable. On 18 August 1994 Eaton gave an undertaking to the federal court that he would not continue his international franchising program or trade in any manner whatsoever until an independent patent attorney’s report could be provided stating that the technology being franchised by Eaton’s companies was different from the technology contained in the two patents owned by QPSS.

The Commission and now the AGS still refused to accept that these two patents were invalid. And the fact that they were invalid had already been confirmed by Van Der Horst’s own patent attorney, Dr Ian de Jonge. Nor did they accept that Van Der Horst was on the brink of being charged by State police for fraud.

To this day, the fact remains that Guthrie, Toy and Ziukelis had moved against Eaton and others just two weeks before Dr de Jonge had provided the Commission with his sworn Affidavit citing an expired 1957 United States (South Carolina) patent; the same patent that police would subsequently prove was copied by Van Der Horst and fraudulently held out as his own invention.

It was also this expired patent that was not cited by the Patents Office at the time they granted those two invalid patents to Van Der Horst. In short, nothing within those two invalid patents was of any value whatsoever. That US patent had expired in 1974 and its contents (claims) had been in the public domain for 20 years when Eaton’s companies had been brought – unjustifiably and unlawfully – to a standstill by the Commission.

[Note that the claims (patentable features) within an expired patent can be used by anyone. Naturally, those claims cannot be repatented. But the Patents Office had mistakenly done just that when granting Van Der Horst his two patents. They had failed to cite that expired US patent which convincingly knocked out the key claims within the two patents granted; hence the term invalid or ‘bad’ patents.]

The independent patent attorney’s report which cleared Eaton and his Europark group from any hint of infringing Van Der Horst’s invalid patents was provided to the Commission and the federal court in November 1994, but it would be the end of April 1996 before the matter would finally go to trial.

In the interim, 52 Australian families involved in the Europark carparking project could not move; and yet, Van Der Horst and his solicitor were allowed to continue raising money from the public based on their bad patents.

And by April 1996, Guthrie (Commission), Toy (AGS) and Ziukelis (AGS) had protected themselves repeatedly by committing a series of unlawful acts against those Europark families headed by Garth Eaton. Anything and everything was done to justify having moved too early. A mistake had been made and they had proceeded – and would continue to proceed – to bury that mistake with the invaluable assistance of their ‘go to’ man, Justice Spender.

The following is a précis of their fraudulent conduct.

•   Van Der Horst and his solicitor, Peter Smith, also a co-shareholder of QPSS, filed a false complaint      with the Commission claiming that Eaton’s companies were franchising their mechanical      carparking technology. •   The Commission refused to allow Eaton the right to personally address the allegations made by the      complainants. No meeting was granted. •   Peter Smith wilfully failed to disclose to the Commission that he was not just Van Der Horst’s legal      representative but that he had a substantial vested interest in the patents which he believed to be      valid. •   Eaton sent the Commission a letter detailing the reasons why Van Der Horst was dismissed as an      employee/contractor, at the same time indicating the fraudulent nature of their complainants. He      also went on to advise the Commission that Van Der Horst was under investigation by State police      concerning sound allegations of having repeatedly committed fraud against Eaton’s companies and      staff. •   The Commission showed no interest whatsoever and simply replied by cautioning Eaton to cease      franchising the Europark technology which they still erroneously believed was the property of      QPSS. Or put another way, to cease infringing QPSS’s two patents. •   Eaton disregarded the Commission’s caution and continued exercising his companies’ lawful right      to franchise their own Europark mechanical carparking technology. •   Before commencing action against Eaton and his Europark companies the Commission conspired      with John McCarthy, journalist from The Courier-Mail newspaper, to publish false material on      17 June 1994 which could later be used in court to damage Eaton and Europark’s defence.      (Crimes Act – Section 42 Conspiracy to Defeat Justice). •   On 27 July 1994, the Commission filed an Application in the Federal Court of Australia against      Eaton, his wife, their companies, staff, franchisees, investors and agents seeking to injunct (i.e.      freeze) Eaton’s companies from trading until a trial could establish if they were or were not      infringing the QPSS patents. •   On 12 August 1994, Dr Ian de Jonge, Patent Attorney, swore his Affidavit for the Commission.      It cleared Eaton’s group of any form of infringement. There were no patentable claims (i.e.      features) of any importance left within the QPSS patents given the existence of an expired      US patent which Dr de Jonge had cited. The QPSS patents were incapable of being infringed. •   The Commission was also provided with an independent patent attorney’s report prepared by      Mr Trevor Dredge. It cleared Eaton and his group of any possibility of infringing the two QPSS      patents. •   Now realising that Eaton’s group had not infringed the two invalid QPSS patents the Commission      was desperate to justify the damage it had created. It was now game on, and the dirty tricks      department headed by Guthrie (Commission), Toy (AGS), and Ziukelis (AGS) moved up another      gear. •   Of even greater amazement was the fact that the Commission had never sighted the Europark      technology. They had never called for it and Eaton had been denied the opportunity to discuss it      with them. They were behaving like a cowboy outfit and continued shooting from the hip to the      detriment of 52 innocent Australian families – all with substantial vested interests at risk. The      Commission and the AGS were playing with their lives. •   Every attempt by Eaton to get the matter to trial was blocked, even to the point of removing a      Directions Hearing set down for Friday, 16 December 1994. Eaton had not been advised of the      cancellation. •   At a later Directions Hearing on 7 July 1995 Justice Drummond graciously offered to identify what      technology in the Europark technology files could be classified as privileged information. It would      be this technology that Eaton could withhold from the commission and from the trial judge. It      needs to be emphasised that the Commission and the AGS still had no idea what comprised the      Europark technology, and therefore had no foundation for asserting that this technology was      infringing the QPSS patents. They simply had not seen it. They were firing shots wildly hoping to      hit a target – any target. •   Eaton was phoned by Justice Drummond’s associate on Sunday, 9 July 1995 and advised that the      judge wanted to see all parties in court the following morning for a Directions Hearing.      He told Eaton that he had marked the two files containing the Europark technology as File 41 and      File 48 in which he had clearly marked the technology which was privileged. All of the technology      contained in File 41 had been marked privileged and in File 48 he had marked the privileged      technology ‘A’ through to ‘K’. •   The Commission and the AGS were now on their back foot and keen to see the technology which      had been identified as privileged. In early August 1995 Eaton was invited to a meeting in the      chambers of the Commission’s barrister for the purpose of convincing Eaton to release the      privileged Europark technology so that they could ascertain for themselves that no infringement      had taken place. For whatever reason, ownership of worldwide rights was no longer relevant to      them. If they were satisfied, then they were prepared to cease their federal court action and      Europark could continue trading. •   After much deliberation and numerous discussions with investors and franchisees it was decided to      release the privileged technology on the proviso that only Uniquest – a division of the University of      Queensland – would be allowed to examine the technology and compare it with the two QPSS      patents. Again, these patents were totally invalid and worthless, and therefore incapable of being      infringed. But Eaton felt that it was worth a chance. Any opportunity to get back to normality was      worth taking. •   On 13 October 1995, Eaton was approached by Stephen Ridgeway, principal solicitor for the AGS.      Naturally, he was representing the Commission. They had devised an offer whereby they would      discontinue court proceedings against Eaton and the Europark companies provided Eaton took      Van Der Horst and QPSS into either a supreme or federal court to have his two patents revoked.      The cost would have been prohibitive.  Eaton declined the Commission's offer.      In truth, it was the responsibility of the Commission to prevent Van Der Horst, Smith,      and QPSS from trading with invalid patents; it was not Eaton’s responsibility... it was      not the public’s responsibility.      The Commission's violation continued. •   By March 1996 – five months later – the Commission had finally found themselves a compliant      patent attorney, John Kingston Pizzey. They had failed to get a falsified report from Uniquest, the      University of Queensland’s technology development and patenting division. The Commission and      the AGS had breached the agreement they had with Eaton. They had become desperate and were      prepared to do anything to save face and avoid the liability – both civil and criminal – of their      reckless federal court action.      [Note that government agencies are renowned for paying expert witnesses, like Pizzey, to provide      reports which will clinch their cases. And John Pizzey – by all accounts – was paid handsomely      to do just that.]      Pizzey provided a report that made a mockery of two of Australia’s most eminent patent      attorneys, Dr Ian de Jonge and Mr Trevor Dredge (also a former Patents Office examiner).      And his report repeatedly flew in the face of the findings of the Deputy Commissioner of the      Australian Patents Office; the same findings as those of Dr de Jonge and Mr Dredge which      rendered QPSS’s two patents, absolutely worthless.      In the words of Peter Toy (AGS), as he sat with a colleague in the back of a taxi: “... and that’s      how we stitched up Euro.” He was referring to Europark and the cleverly fabricated Pizzey report.      The driver of the taxi – unbeknown to Toy – was a Europark franchisee who had just lost      everything.

Protecting Government Officers

The federal court trial commenced on 26 April 1996. Justice Spender opened proceedings by challenging Eaton’s right to represent his Europark companies and his wife. But Eaton had been granted that right by Justice Drummond many months earlier.

The judge’s second move was to challenge the admissible nature of evidentiary material concerning the ongoing criminal investigation of Van Der Horst. He dismissed the material. He wasn’t going to have any criticism of Van Der Horst’s character in his court. He needed to protect Van Der Horst at all costs in order to justify the criminal antics of government officers.

During the course of trial the judge repeatedly tried to get his own way with expert witnesses who were testifying in favour of Eaton, but each of his attempts to discredit those witnesses was checked. His frustration showed. It was only when Pizzey sat in the witness box that the judge’s mood changed. It was then that he had the pawn he needed to win the game in defence of the corrupt conduct of officers within the Commission and the AGS.

Beneath the Bench exposes the lengths Justice Spender went to in order to fabricate his Reasons for Judgment; a judgment that protected Van Der Horst – a violent, mentally ill, fraudulent inventor who perjured himself 21 times under oath; a judgment that slammed the Europark group; a judgment that rested principally on the false Pizzey report; a judgment that failed to even acknowledge the existence of Dr de Jonge and Mr Trevor Dredge. In fact, nothing contained in these two patent attorneys’ written and oral testimonies was ever referred to. They may as well have never sworn their Affidavits or entered the witness box.

The attack on Eaton, his Europark companies, and the 52 families representing the Europark franchisees, investors, and staff was so destructive that no one was prepared to fund an appeal. And most were financially exhausted anyway. It was now time to accept that Guthrie (Commission), Toy (AGS), Ziukelis (AGS) and Spender (judge) were never going to be held to account for the damage they had created; and not for the lack of funds, but simply because the Australian judiciary would be obliged to protect them.

It is well known that any attempt to discredit the legal profession (as a body) will be blocked by the judiciary. And the Australian Government Solicitor (AGS) was and still is the peak legal body in Australia. By protecting its officers – even those who are obviously corrupt – the judiciary is protecting the agency and ensuring that public confidence is maintained. Those 52 families had no chance.

And more broadly, the question to be asked is: “Do judges systematically favour the interests of the legal profession?” A succinct answer to this question is given by an Associate Professor of Law, Benjamin Barton:

     “Here is my lawyer-judge hypothesis in a nutshell: many legal outcomes can be explained
     and future cases predicted by asking a very simple question: is there a plausible legal result
     in this case that will significantly affect the interests of the legal profession (positively or
     negatively)? If so, the case will be decided in the way that offers the best result for the legal
     profession.”

Reasons for Judgment

Garth Eaton’s autobiography, Beneath the Bench (eBook), describes how the judge was able to shut down the Europark group in protection of government agencies and their officers. The author highlights 15 of Justice Spender’s findings (i.e. false statements) in his Reasons for Judgment; findings which defied an understanding of intellectual property matters – in particular, patenting – and further disregarded the evidentiary material so vital to the security of the Europark group's 52 families.

On the home page of BeneathTheBench.com there are excerpts taken from various chapters. However, it is CHAPTER XI – DEATH SQUAD EXCERPTS that deals with just three of the judges’ damning false statements and the author’s response to them.

Criminal Charges – Van Der Horst

On 29 May 1997 – just three months after Justice Spender’s Reasons for Judgment were published – Willem Van Der Horst was finally charged by State police with 49 charges of False Pretences under section 427 of the Queensland Criminal Code.

There was now hope of overturning the Commission’s entire case; certainly now that the entire Reasons for Judgment had been discredited. But Justice Spender intervened again, and all charges were dropped by the Director of Public Prosecutions, Royce Miller QC, six months later on 13 October 1997. Police were bitterly disappointed having been on the case for over three years.

Justice Spender had won again, but in spite of illness now dominating the Europark group they fought on. It was not over.

Criminal Charges – Justice Spender

By March 1998, Justice Spender had been charged under two sections of the Commonwealth Crimes Act 1914 (as amended) – s.32 Judicial Corruption (12 charges) and s.43 Attempt to Pervert Justice (one charge). In spite of a convincing Brief of Evidence containing watertight facts, a highly nervous federal court magistrate ruled against the prosecutor’s case and Spender was allowed to continue his damaging reign as justice of the Federal Court of Australia for another 12 years.

The Fallout

By the end of 1999, Van Der Horst had been murdered because of his escalating violence. And one among the 52 Europark families had ended his own life because of the hopelessness created by Spender.

In time, others became critically ill; three terminally, making it five deaths in total, solely because one judge deemed it necessary to protect two government agencies – in particular, the AGS – and their corrupt officers.

It was over.

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