This webpage is a work in progress last edited in August 2020.
2 of 12 alternative remedies pursued shows that when Dr Gordon Hughes (the then arbitrator) and Warwick Smith (the administrator of those arbitrations) continued to use an arbitration agreement that was covertly drafted by the defence for the first four COT arbitrations, fully aware that Telstra’s lawyers who had drafted it had not allowed enough time in that agreement for “the production of documents, obtaining further particulars and the preparation of technical reports;” (See Open Letter File No 55-A), but still used it in my arbitration regardless of those deficiencies was unconscionable conduct.
Using the defendant’s drafted Arbitration Agreement, while telling the government and claimants it had been drafted independently of the two parties (when this was clearly not the case), is misleading and deceptive conduct under Section 52 of the Australian Trade Practices Act.
Section 52 of the Trade Practices Act 1974 (Cth), in contrast with most obfuscatory legislative drafting, is simplicity itself. The Section says that: A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. Section 52 has no criminal sanction. Its sanctions are damages, injunction and the granting of a wide range of “other orders” under s.87 of the Act (see https://lr.law.qut.edu.au/article/view/358 link.
This SENATE official Hansard record, on page 5169, confirms a number of senators discussed a legal firm and its strategy advising Telstra how to conceal technical information from the first four COT cases under Legal Professional Privilege, even though the documents were not privileged. The COT Strategy is available at download Prologue Evidence File 1-A to 1-C and shows I was one of the four COT cases singled out by this legal firm. As this SENATE official Hansard – Parliament of Australia (p 5119) confirms.
This was the same legal firm that faxed the deficient drafted Arbitration Agreement to the office of Warwick Smith on 10 January 1994 (see exhibit 48-B file Open Letter File No/48-A to 48-D).
And further, the day before the Senate committee uncovered this COT Strategy, they were told, under oath, by an ex-Telstra employee and whistleblower Lindsay White that, while he was assessing the relevance of technical information requested by the first five COT claimants, he was instructed that we COT cases must be stopped “at all costs” from proving our claims. (See pages 36 and 38 Senate – Parliament of Australia)
Find out more about Dr Hughes and his misleading statements to the then president of the Institute of Arbitrators Australia on 16 February 1996 in Chapters One to Three in our Prologue page. These three chapters show that even the arbitration project manager John Rundell (who now runs an arbitration centre in Collins Street, Melbourne) was prepared to mislead and deceive me during my arbitration.
As we have shown in the concluding statements on Call For Justice – Introduction, the Telecommunication Industry Ombudsman formally advised a Senate Estimates Committee on 26th September 1997 (after the arbitrator had deliberated on seven arbitrations) that we COT Cases were advised prior to signing our arbitration agreements:
“In the process leading up to the development of the arbitration procedures – the claimants were told clearly that documents were to be made available to them under the FOI Act”.
This Burying The Evidence page has been set up to ensure the reader fully understands the ramifications of what transpired, i.e. that the COT Cases were formally advised before they signed their government-endorsed arbitration agreements they would receive the documents they needed to fully support their claims. When the government promise was broken and the COT Cases were left without the documents to fully support their claims, it set up a trail of events that have now left the COT Cases’ victims of a crime (a giant cover-up by the Australian Establishment) in order to protect Telstra at all cost.
This letter, dated 20 January 1994, from Ms Philippa Smith, Commonwealth Ombudsman to Telstra’s corporate secretary Jim Holmes, notes:
“I received complaints from three of the ‘COT Cases,’ Mr Graham Schorer, Mr Alan Smith and Ms Ann Garms, concerning TELECOM’s handling of their applications under the Freedom of Information Act (FOI Act) of 24 November 1993 and 21 December 1993 respectively. …
“All three assert that they require the information to support their submissions to the imminent review in accordance with the Fast Track Settlement Proposal (FTSP) agreed between TELECOM and AUSTEL, and endorsed by the then relevant Minister.” (Home Page – Part One File No/2-A)
Although the Commonwealth Ombudsman found against Telstra, in my case that finding was more than two years after the completion of my arbitration. I was awarded costs against Telstra for unnecessary expenses incurred in trying to access arbitration documents under the FOI Act – documents that the arbitrator himself was unable to obtain from Telstra, even though government records showed they existed somewhere in Telstra’s archives. The Commonwealth Ombudsman’s later finding, however, did not assist me in proving my arbitration claims that the faults that sent me into arbitration in the first place were still ongoing on the day the arbitrator brought down his finding, which did not take into account that these problems had still not been fixed under the promises by the government they would be. How could the arbitrator make findings on documents that the defence (Telstra) concealed from the arbitration process? Those claims of ongoing telephone problems remain unresolved today, in 2020, therefore, the Commonwealth Ombudsman’s finding that Telstra was defective in supplying legally requested documents under FOI was a hollow victory.
On 17 February 1994, during an official pre-arbitration meeting, Graham Schorer (COT spokesperson) asked Dr Hughes to assure us that the agreement the COT claimants were being pressured to sign was not Telstra’s proposed rules of arbitration. Telstra’s own transcripts of this meeting (see Open letter File No 54-F) confirm both the arbitrator and the TIO’s special counsel stated, “they had not received this document and had not read it and that it was irrelevant”. However, Burying The Evidence File 9 confirms the arbitrator was provided with a document called “Telstra Corporation Limited – ‘Fast Track’ Proposed Rules of Arbitration” before 18 January 1994, one month before this meeting. Furthermore, by combining Open Letter File No/48-B and Burying The Evidence File 8 it is also confirmed the TIO office received a faxed copy of the “Telstra Corporation Limited – ‘Fast Track’ Proposed Rules of Arbitration” on 10 January 1994.
In fact, Open Letter File No/48-A, dated 24 January 1994, confirms both the arbitrator and a representative of the TIO’s special counsel read Telstra’s proposed rules. And they actually used that document as the basis for the final arbitration agreement: the version presented to the first four COTs for signing the very next month. This was the version that we were assured had been drafted totally independently. During the first official arbitration meeting, before the COTs had signed their arbitration agreements and even before he was officially appointed, the arbitrator was already misleading and deceiving the claimants and all other interested parties.
This deception, regarding which version of the agreement we signed, was maintained throughout the various COT arbitrations. This agreement was NOT independently drafted by the special counsel, but by Telstra – the defendants.
This letter, dated 23 February 1994, from Telstra’s arbitration liaison officer to the pending arbitrator notes:
“Telecom is of the view that Special Counsel and the Resource Unit should be accountable for any negligence on their part in relation to the arbitration process, given that these parties are acting in their capacity as experts. Therefore, this clause should not be amended so as to include an exclusion from liability for Special Counsel and the Resource Unit.” (See Open letter File No 54-E)
3 March 1994: Confirmation from AUSTEL to Steve Black, that the regulator was adamant that,
“if the Fast Track Settlement Proposal is to be effective then the COT members must be given access to the documentation in Telecom’s possession necessary for them to prepare their cases”. (see Exhibit GS 173 file GS-CAV 155 to 215.
AUSTEL’s COT INVESTIGATION
On 21st November 2007, I received from the Australian Communications Media Authority (ACMA), under FOI, a copy of AUSTEL’s original draft findings regarding the telephone problems experienced by the Cape Bridgewater Holiday Camp during 1988 to 1994. Copied below are some of the page numbers and points in the report. If AUSTEL (the government regulator) could not gain access to documents from a fully owned government corporation, such as Telstra was during this official, government-funded investigation, then what hope did the COT claimants ever have? Did AUSTEL have a regulatory obligation, as the facilitators of the FTAP, to abandon the signing of the agreement until the COT Cases received the documentation they were promised they would receive if they signed the FTAP? The following list identifies some areas where AUSTEL had problems accessing Telstra records on my service:
Point 43 on page 20 notes:
“As no fault report records remain in existence from Cape Bridgewater residents prior to this period, or these records have not been provided to AUSTEL, it is difficult to gauge the level of problems in the area which should have been to [sic] known to Telecom based on their own routing reporting data.”
Point 48 on page 22 notes:
- “AUSTEL has been hampered in assessing Telecom’s dealings with Mr Smith by Telecom’s failure to provide files relating to Mr Smith’s complaints.”
Point 71 on pages 28 and 29 notes:
- “AUSTEL has not been provided with the documents on which the conclusions in this briefing summary were reached, such as fault reports from other Cape Bridgewater subscribers over this period or the details of the final selector fault. It would have been expected that these documents would have been retained on file as background to the summary. It can only be assumed that they are contained within the documentation not provided to AUSTEL.”
Point 140 on page 49 notes:
- “It should be noted that AUSTEL’s investigation of matters relating to the RCM problem has been hampered by Telecom’s failure to make available to AUSTEL a file specifically relating to the Pairs Gains Support investigation of the RCM. The file was requested by AUSTEL on 9 February 1994.”
Point 160 on page 55 notes:
- “It should be noted that it is hoped that a number of issues in regard to the Cape Bridgewater RCM will be clarified when Telecom provides the documentation requested by AUSTEL.”
Point 5.46 on page 95 in the final AUSTEL COT Cases Report notes:
- “Where, as part of its direction, AUSTEL sought to obtain detailed information on each of the exchanges involved in terms of performance standards, actual performance, maintenance requirements and achievements, Telecom initially responded with advice in terms of a few generalisations. Very specific requests were necessary to obtain data which a co-operative approach may well have been expected to deliver. Indeed, throughout this inquiry it has been apparent that Telecom has chosen to interpret AUSTEL’s request for information in the narrowest possible terms. The net effect of this was to minimise the amount of relevant data it put before AUSTEL and lengthen the process necessary to extract it”.
AUSTEL records dated 3 March 1994, show that the following more-adverse findings contained in the following links > Open Letter File No/4, /5, /6, and /7 . were provided to Telstra (the defendant in my arbitration) in March 1994, one month before COT Graham Schorer (COT Spokesperson) and I signed our arbitration agreement. Providing the defendant with a copy of these findings, showing Telstra destroyed both businesses, while concealing them from the claimants prior and during their arbitrations, shows the odds were against Mr Schorer and I even before we signed our arbitration agreement on 21 April 1994. Why is the Australian government still concealing this disgraceful and unethical conduct? When the government communications regular provided only the defendant with a copy of this report, it breached its statutory obligation (duty of care) to Graham and I. Why has the Australian government not acted on this breach?
Exhibits 20111025143553046 and 20130627133948062. were not released to Graham Schorer (COT spokesperson) until October 2008, fourteen years too late to be used in his arbitration or during the Senate Estimates Investigation into why relevant documents were being withheld from Graham during his arbitration. In other words, if AUSTEL had provided their adverse findings against Telstra to Graham and the Senate Estimates Committee during that 1997/1999 Committee investigation, it would be fair to say that the Committee would have immediately ensured that Telstra didn’t pressure Graham into accepting compensation of only 33% of his arbitration claim – and that 33% did NOT include the thousands upon thousands of dollars Graham had wasted on legal fees to prove something that the government regulator had already proved.
“Ex parte” is a Latin phrase meaning “on one side only; by or for one party”. An ex parte communication occurs when a party to a case, or involved with a party, talks or writes to or otherwise communicates directly with the judge about issues in the case without the other parties’ knowledge. Under the Judicial Code of Conduct, judges may not permit or consider “ex parte communications” in deciding a case unless expressly allowed by law. This ban helps judges decide cases fairly since their decisions are based only on the evidence and arguments presented to the court and the applicable law. It also preserves trust in the legal and court system.
Upon reading this segment Open letter File No 54-A), and the following Prologue page, you will come to the same conclusion many others have: arbitrator Dr Gordon Hughes should not have secretly met with Telstra (the defendants) prior to arbitration to discuss what rules in the arbitration agreement would be removed and which would remain. This clandestine meeting (without the claimants being represented) also covered how to protect – to exonerate – the arbitrator’s consultants from incurring any liability for negligence and to exempt the unit from being sued. Of course, this was to the detriment of the COT cases and our legal right to a have recourse over the arbitration consultants if the resource unit was negligent in their duties. It will be clear, after reading Open letter File No 54-A), and the Prologue page, the arbitration resource unit was negligent during my own arbitration process and I was unable to hold them to account for those actions, due to those negligent clauses being removed in my arbitration agreement. This is a very serious issue and should have been addressed in 1995, when this was discovered. An investigation, 20 years ago, would have uncovered that Dr Hughes and Warwick Smith (TIO) used Telstra’s proposed arbitration agreement as the base document for the COT arbitration agreement, rather than using an agreement drafted totally independently of Telstra, as the government (who endorsed the first four arbitrations) and the COT cases’ lawyers were promised. An investigation in 1995 (see Prologue Chapter Four) would have also uncovered Dr Hughes’ 12 May 1995 letter to Warwick Smith, which condemned the Telstra-based agreement as not a credible document to use in the arbitrations, although he used it in my arbitration.
On 22 March 1994, a clandestine meeting attended by Steve Black (Telstra’s arbitration consultant) David Krasnostein (Telstra’s general counsel), Simon Chalmers (Telstra’s arbitration legal advisor), Peter Bartlett (TIO special counsel), Gordon Hughes (the arbitrator), Warwick Smith (first TIO) and Jenny Henright (TIO’s secretary). The meeting discussed the Fast Track Arbitration Procedure FTAP arbitration agreement without any COT claimants or their representatives being present (see Open letter File No 54-A) or advised of this pre-arbitration meeting.
What has since been revealed from this secret meeting is that the COT Cases were never intended to prove their cases of ongoing telephone problems. We have raised this clandestine meeting at the very beginning of our story in order for the reader to understand that justice when fighting big corporations like Telstra can only be won if the judge (in our case) the arbitrator, is impartial. For Dr Hughes to have allowed such a meeting to discuss the arbitration rules, rules that he and the TIO allowed to be secretly crafted by Telstra (the defendants) is appalling conduct to say the least especially after he and the TIO had told the government and the claimants lawyers the arbitration rules had been totally drafted independently of Telstra.
Telstra’s transcript of this meeting (see Open letter File No 54-A) notes at point 6:
“Peter Bartlett [TIO-Special Counsel] stated that he was unhappy that Telecom did not appear prepared to allow his firm an exclusion from liability.
“Warwick Smith [TIO] stated that he thought it was reasonable for the advisers to incur some liability, and that the only matter left to be negotiated on this issue was the quantum of the liability caps”.
“Mr Black [Telstra] said that he thought the liability caps proposed by Telecom in the amended rules were already reasonable.”
This document records how the TIO was adamant that:
“he thought it was reasonable for the advisers to incur some liability, and that the only matter left to be negotiated on this issue was the quantum of the liability caps”
The TIO declined to explain what circumstances occurred to change this. Who was able to pressure the TIO to allow the advisors (see below) to be exonerated from all liability in relation to my arbitration? Why it did not occur to the TIO or Arbitrator that, once the directions regarding liability were removed, this would allow complacency to creep into the process (which is exactly what happened)
It is clear from the author of these minutes, has left out points 4 and 5. Point 6 follows point 3. Where are points 4 and 5?
This is further proof that for Dr Gordon Hughes should have never allowed this secret meeting to take place without the COT cases being represented. Most, if not all, Western democracies would condone allowing the defendants and their lawyers to be present in the judge’s chambers (arbitrator’s office). The missing discussion material or questions raised at points 4 and 5 may well be why the parties present agreed to Telstra lawyers drafting the agreement, instead of the independent arbitration agreement the government and claimants were assured would be used. It could also be where Telstra and the arbitrator, Dr Hughes, agreed and accepted that Telstra would allow the arbitration resource unit first access to all arbitration procedural material (see Arbitrator Part One Chapter Nine Prologue Evidence File/No 7). This allowed them to decide which documents Dr Hughes would see and which would be discarded.
The TIO has, to date, declined to explain what circumstances occurred to change this. Who pressured the TIO to allow the advisors to be exonerated from all liability in relation to our arbitrations? Why would the TIO special counsel be:
“unhappy that Telecom did not appear prepared to allow his firm and exclusion from liability”?
On the actual day we signed the agreement, (see Open letter File No 54-D) the liability clauses 25 and 26 had been removed. We were told if we did not accept these late changes, then there would be NO arbitration. With our banks declaring they were ready to take over our assets if we could not show settlements were imminent, we buckled and accepted the resource unit and TIO special counsel would be exonerated from all liability.
On 25 March 1994, Ms Philippa Smith wrote to Telstra’s CEO Frank Blount, stating:
“It was unreasonable for Telecom to require the participants to make further assurances while Telecom was considering the Agreement and thereby denying the participants the opportunity to consider the rules that Telecom wished to have included in the Agreement.” (Home Page – Part One File No/2-B)
Again, on 6 May 1994, Ms Philippa Smith wrote to Telstra’s CEO, Frank Blount, stating:
“I should be grateful if you would now respond to the outstanding matters raised in my letter of 25 March 1994 ie
- Comment on my views that:
- it was unreasonable for Telecom to impose a condition for release of certain documents that the participants make further assurances that they will participate in the FTSP; and
- it was unreasonable for Telecom to require the participants to make the assurances while Telecom was considering the agreement related to the FTSP (the Agreement) and thereby denying the participants the opportunity to consider the rules that Telecom wished to have included in the Agreement.” (Home Page – Part One File No/2-C)
Regardless of the government and the relevant minister endorsing COT arbitrations, as confirmed by Ms Philippa Smith, in her 20 January 1994 letter, and regardless of both the TIO and the government being aware the arbitrator had no control over the arbitrations (see Arbitrator File No/71), the government only assisted five of the 21 COT cases to resolve their long outstanding claims. (See the An Injustice to the Remaining16 page, in the menu bar).
It May 1994, with the pressure being applied by the Commonwealth Ombudsman, that Alan was able to arrange to go to Melbourne on the 14th May 1994 to look at some FOI documents which Telstra had stated they would show him in their offices. Alan arrived at Telstra House in Exhibition Street a little after nine and then discovered that a room had been set aside for him from 8 am to 6 pm.
14 May 1994: This document is a copy of the same sworn statement faxed on this day to Detective Superintendent Jeff Penrose (AFP) by me (see Burying The Evidence File 1 in which it notes:
“At approximately 4.20 pm yesterday, I spoke to Detective Superintendent Jeff Penrose (Federal Police) regarding my concerns about what had taken place.
My purpose for being at Telecom House was that when Telecom had originally supplied the FOI documents, they had somehow failed to supply the adjoining documentation that should have accompanied some of these Fax Header Sheets (fifty six (56) header sheets in all)
It is now my concerns were justified…and In the office provided for me , that because much of the FOI documentation was so blanked out that it was hard to march the correct correspondence to the Telecom Header Sheets in question.
The moment I brought to their attention the irregularities regarding the two faxes in question there was an immediate urgency to terminate my presence and I was asked to leave at 40.40 pm”.
At 9:00 am when I had originally arrived at this FOI viewing room I was introduced to Telstra FOI staff, including George Sutton and Rod Pollock and was then provided with some of the documents which I should have received under my December 1993 and February 1994 FOI requests. Some thirty or so heavily blanked-out documents were provided by Mr Pollock, including about fifty-six fax cover sheets, with attached documents. One of the documents referred to the MELU telephone exchange, which had caused my business massive problems between August 1991 and March 1992 so I asked Mr Pollock if he could supply the document, without the blanking-out. Mr Pollock went away for some time and I continued to check the documents that had been provided. It was so clear that Telstra had defaced so many of these requested documents that I was unable to decipher or understand where the document had originally come from and/or the importance of the document.
I had taken with me that day some of the documents that Telstra had previously supplied me with and, while Mr Pollock was away from the room, I noticed that some of the fifty-six fax cover sheets I had seen before now had different material attached. Nothing seemed to match. For example, documents relating to a fault in 1991 were attached to a fault record dated 1993 which stated that no fault had been found. I was so alarmed at this discovery that I phoned Detective Superintendent Jeff Penrose of the Australian Federal Police and described the situation to him. Mr Penrose responded with words to the effect that: ‘… it is illegal to destroy documents during a discovery process’ and went on to explain that my attendance at Telstra’s office certainly qualified as an official ‘discovery process’. Then, on 14 May 1994, I passed Mr Penrose’s comments on to the Deputy TIO, along with samples of the documents that Telstra had tampered with Burying The Evidence File 2 and, following on from Mr Penrose’s other suggestion, I also prepared a Statutory Declaration describing what I had discovered and then provided it to both the TIO and the arbitrator Burying The Evidence File 1
I did eventually receive the MELU exchange document that, during this meeting, I had asked Rod Pollock to supply, without ‘sanitising’ it, but I didn’t get it until 2008, fourteen years after I had originally asked Telstra for it, via Mr Pollock, and then it didn’t actually come from Telstra after all, it was eventually sent from the Government Regulator (now called ACMA), as FOI folio 95/0603-01 (75). While I would have rejoiced in 1994 if I had received it un-sanitised because it confirms that the MELU RVA exchange fault that advised callers to my business that I was no longer trading, was NOT a sixteen-day fault, even though this is what the arbitrator recorded in his award, it was in fact a fault that had actually lasted for more than seven months. This same document must have been used by the Government Regulator (then called AUSTEL) for them to come to the conclusion they recorded in relation to the same fault, in their covert findings that document (see Open Letter File No/4, File No/5, File No/6 and File No/7 was so critical of. It is almost impossible to even imagine what I could have achieved with this one un-sanitised document. if only I had received it when I should have, under the rules of discovery.
Even though the TIO was acting as an administrator to my arbitration, the TIO office refused to send anyone back with me to Telstra’s FOI viewing room regardless of the evidence that I had provided that this tampering with my requested documents was not just a one-off mistake. Considering that, as already noted, on 11th January and 11th July 1994, Telstra’s Steve Black wrote to Warwick Smith regarding the TIO-appointed Resource Unit and AUSTEL censoring Telstra documents before the COT claimants were allowed to use them to support their claims we have to ask if this is why no-one from the TIO’s office would help to investigate this discovery matter. In the last paragraph of this document the deputy TIO Ombudsman, Sue Harlow wrote to Warwick Smith, and referred to the proof I left with her confirming Telstra had defaced many documents by blanking out information on the supplied documents noting
‘He left an example of this with us (also attached)’ Burying The Evidence File 2
It is most important to note on 11th July 1996, when as a member of AUSTEL (now the ACMA) Sue Harlow wrote to the Hon Senator Richard Alston, Minister for the DCITA attaching the sixth status report on AUSTEL’s recommendations of the COT Cases report which notes on page 12:
“The TIO believes that Telstra has, in all claims, responded in an overly legalistic manner. In short, while the arbitration procedure has sought to relax the legal burdens, Telstra’s conduct has certainly not”.
This is the same Sue Harlow, Deputy TIO, who I had provided Burying The Evidence File 2 i.e. the aforementioned conclusive evidence that Telstra was destroying evidence on numerous requested discovery documents. These documents were not being requested under FOI although the documents were viewed in Telstra’s FOI viewing room, they had been granted by Telstra under the agreed process of discovery.
In Australia, like many western democracies, Freedom of Information (FOI) laws give the general public the right to formally request access to documents held by Governments and Government bodies at all levels, according to a process known as a ‘right-to-know’ and, if the request is granted, then the documents are duly stamped or otherwise marked with an official FOI number. As part of any legal procedure there is also a process referred to as ‘discovery’. It Even though in 1994, the FOI Act meant that Telstra should have supplied my first FOI request of early December 1993, within a thirty day period from the time Telstra had received that requests, by May 1994 I had only received a very small portion of the documents I had requested and even this small amount of documents were heavily censored and was provided without the required schedule of contents determining what the documents were. This led me to being granted under pressure from the Commonwealth Ombudsman access to Telstra ‘FOI viewing room’ under strict supervision so I could decide which documents I wanted to have copied for me to take away. During the later part of the day after I had tried to get at least a TIO staff member to visit this viewing room to show them what appeared to have been a cleansing process and with the Deputy TIO Sue Harlow refusing my request it was not long after that a heated argument between Rod Pollock took place when documents I had asked to be cleaned/de-censored that I was sure this process had just been a public relation exercise.
One particular group of five or six pages of documents that had not been released to me under FOI before, but which were in the viewing room with me, Rod Pollack and Mr Pollack’s ‘helpers’, was addressed to me from someone with a Ballarat address, most of the rest of the information had been blanked out. I asked one Mr Pollack’s assistants if she could get Mr Pollock to provide an un-sanitised version of both that document and another fax as well: not long after that I was escorted out of the building and I never saw the Ballarat document again.
On the 20 May 1994, Cathy Ezard (now my partner) signed a statutory declaration, explaining a number of sinister happenings when she attempted to collect mail on my behalf from the Ballarat Courier Newspaper office Burying The Evidence File 7. This declaration leaves questions unanswered as to who collected my mail and how did they know there was mail to be collected at the Ballarat Courier mail office. On both occasions when this mail was collected by a third person, I had previously telephoned Cathy, informing her that the Ballarat Courier had notified me there was mail addressed to me waiting to be picked up.
On pages 12 and 13 on the Australian Federal Police transcript dated 26 September 1994 Australian Federal Police Investigation File No/1 they show that the AFP stated to me at Question 59
“And that, I mean that relates directly to the monitoring of your service, where it would indicate that monitoring was taking place without your consent?”
Chapter Three – A Secret Deal
On 11 January 1994, even before I signed for arbitration (on 21 April 1994), Steve Black, Telstra’s Group General Manager of Customer Affairs, wrote to the Telecommunications Industry Ombudsman (administrator of the arbitration) advising that:
It was agreed at our meeting between Telstra and the Chairman of AUSTEL on 7 January 1994 that:
“I also wish to confirm to you my previous advice regarding arrangements made with AUSTEL for the release of documents obtained from Telecom to the four customers currently proposed for the Fast Track arbitration process”
“Information obtained from Telecom, in the course of AUSTEL’s regulatory functions, and relevant to any parties involved in a formal arbitration process with Telecom under the control of the Telecommunication Industry Ombudsman (TIO) will only be released after consultation with the TIO and Telecom” (see Introduction Part Two File /1)
Introduction Part Two File /2 also suggests that a secret deal between Telstra (the defendants), the TIO (the administrator), and AUSTEL (the Government regulator) in the form of a letter also dated 11 January 1994 but this time from Telstra to AUSTEL’s Acting Chairman, stating:
“To this end I wish to confirm the agreement reached between Graeme Ward [Telstra] in a meeting with you and Mr Neil Tuckwell [Chairman of AUSTEL] today that:”
“Information obtained from Telecom, in the course of AUSTEL’s regulatory functions, and relevant to any parties involved in a formal arbitration process with Telecom under the control of the Telecommunication Industry Ombudsman (TIO) will only be released after consultation with the TIO and Telecom”.
Similarly, a letter dated 12 January 1994, from Telstra to AUSTEL’s, General Manager of Consumer affairs Introduction Part Two File /3, states that:
“In accordance with our agreement reached in the meeting with yourself and your Chairman, these documents will be released through the TIO at the appropriate stage of the arbitration process. It is my view that the appropriate time for release is after the assessor is appointed and the procedural rules for the arbitration process have been agreed by all parties. However, as indicated in our agreement, this decision will be taken in consultation with the TIO”.
The letters of 11 and 12 January 1994 (above, are surely linked to the following letter of 11 July 1994 from Steve Black Group General Manager of Customer Affairs, to the TIO, (see Introduction Part Two File /4) where Telstra states:
“Telecom will also make available to the arbitrator a summarised list of information which is available, some of which may be relevant to the arbitration. This information will be available for the resource unit to peruse. If the resource unit forms the view that this information should be provided to the arbitrator, then Telecom would accede to this request”.
In particular, the statement that: “… if the resource unit forms the view that this information should be provided to the arbitrator” confirms that, during the very early part of the arbitration process, it was secretly planned that the Resource Unit would have the power to decide which documents would reach the arbitration process and which would be withheld. In other words, the Resource Unit was to be (at the least) the secondary arbitrator. When this confirmation in here is read in conjunction with the letters of 11 and 12 January 1994 () it can be seen, that a secret agreement between Telstra and Warwick Smith appears to have been contrived months before the four claimants signed their individual arbitration agreements, believing, as did the Government, there was to be only one arbitrator.
This, therefore, raises the following questions:
Since Telstra (the defendants) and the TIO covertly appointed the Resource Unit to be in charge of deciding which documents were concealed from both the arbitrator and the claimants, does this collusive practice provide a good argument on which to base a claim that the arbitration process should be declared null and void – a mistrial?
As the TIO was the administrator of the COT arbitrations that allowed this collusive practice between Telstra (the defendants) and the TIO-appointed Resource Unit (of allowing them to decide which documents should be viewed by the arbitrator and which should not), should the existing TIO Board and Council be made to provide a public statement that clearly identifies who gave the Resource Unit the authority to act as a secondary arbitrator or whether they were they actually secretly appointed as the primary arbitrator since it was the Resource Unit who decided which documents would be assessed during the arbitration process?
The TIO did NOT have the authority to introduce a separate deal into a process being conducted according to a written legal agreement. On page 5 of the Commercial Arbitration Act 1984, under Part II – Appointment of Arbitrators and Umpires, (see Open Letter File No/21
An arbitration agreement shall be taken to provide for the appointment of a single arbitrator unless –
(a) the agreement otherwise provides; or
(b) the parties otherwise agree in writing.
As noted in above the missing discussion material, or questions raised at points 4 and 5, may well be why the parties present agreed to Telstra’s lawyers drafting the agreement, instead of the independent Arbitration Agreement the Government and claimants were assured would be used. It could also be where Telstra and the arbitrator, Dr Hughes, agreed and accepted that Telstra would allow the Arbitration Resource Unit first access to all arbitration procedural material (see Prologue Evidence File/No 7). This allowed them to decide which documents Dr Hughes would see and which would be discarded. Surely the COT Cases were entitled to know this.
The Fast-Track Arbitration Procedure Agreement that Graham Schorer (COT spokesperson) and I both signed on 21st April 1994 mentions only one arbitrator. There is no written agreement in existence, seen by myself, that allows a second arbitrator to determine what information the first arbitrator will see. It is interesting to collate a number of covert situations put in place by key players in the COT arbitrations and mischievously concealed under the Arbitration Agreement confidentiality clauses, even though those events took place before the Confidentiality Agreement was signed. In their 2nd August, 1996 communication to the arbitrator (copied to the TIO), the Resource Unit admitted to concealing relevant documents pertaining to my billing issues from the arbitrator during the course of my arbitration.
Why were the defendants allowed to draft the arbitration rules?
On 13 October 1994, a letter sent by a Telstra whistleblower to Parliament House Canberra and received by the Office of the Hon Michael Lee, MP Minister for Communications, includes allegations against one of the Telstra executives involved in altering and removing information on documents I requested at Telstra’s FOI viewing room. Someone has added a hand-written comment on page one, pointing to this person’s name and noting Warwick Smith [the TIO] “has been critical of [same Telstra representative] on same issue”
The deputy TIO passed this letter to the TIO, together with my statutory declaration (see Destruction of Evidence / Perverting The Course of Justice/Crimes Act 1958 File No/3) showing I had named this same Telstra representative as one of the employees who had removed information on requested FOI documents and/or had not provided the correct documentation. The TIO must have told someone – either in the government or in a regulatory position – that this Telstra representative was named by two different sources. The whistleblower’s letter (see Destruction of Evidence / Perverting The Course of Justice/Crimes Act 1958 Evidence File No/8) states under the heading Concerns and Issues
“Mr Steve Black Group General Manager of Customer Affairs, who has the charter to work to address and compensate Telecom’s ‘COT’ customers as well as the management of other customer issues related to Telecom, is involved in and initiates conduct and work practices that are totally unethical…
There are three main areas in which this second Telstra representative and his senior executives have sought to influence and manipulate.
- Remove or change clear information on the position of liability.
- Diminish the level of compensation payable to COT customers.
- Dismissive of breaches in relation to matters regarding customer Privacy”.
When this document surfaced some four years after my arbitration, it further proved what the COTs had been claiming all along: their cases were crippled before they even submitted their claims. One particular statement on the first page of this letter caught my eye, however, i.e. the whistleblower’s comment naming the same Telstra employee that I named in my statutory declaration as being part of the FOI unit that provided me altered documents in Telstra’s Melbourne office on 13 May 1994 (see Destruction of Evidence / Perverting The Course of Justice/Crimes Act 1958 File No/3)
Chapter Four – The Log Book
On 11 November 1994, John Wynack, Commonwealth Ombudsman office, wrote to Telstra’s CEO noting:
“At the request of [Telstra’s FOI unit], I am notifying you of the details of the complaints made to the Ombudsman by Mr Alan Smith. …
- Telecom claimed that documents given to Telecom by Mr Smith in 1992 had been destroyed or lost. …
- Telecom has lost or destroyed a number of files relating to his contacts with Telecom prior to 1991. …
- Telecom unreasonably delaying providing access to many documents. …
- Telecom unreasonably refused to provide the Portland/Cape Bridgewater Log Book associated with the RCM at Cape Bridgewater for the period 2 June 1993 to 6 March 1994.” (See Home Page File No 10 -A to 10-B)
In my own letter to Dr Hughes, of the same date, regarding the concealment of this logbook (which I continued to seek through the arbitration process) I noted:
“I believe the following fax from the Commonwealth Ombudsman’s Office, is relevant to my claim, and not contrary to the instructions outlined in your letter dated 10th November, 1994.
“In defence of these letters and faxes I would like to state that I believed at the time of writing that I was showing both the reluctance of Telecom to assist me with the Arbitration Procedure and their efforts to inconvenience me in this Procedure. However, I understand the legal reasons you have put forward as to the inappropriateness of forwarding literature back and forth where it may be seen by parties as compromising the confidential undertakings I agreed to abide by.” (See Home Page File No 10 -A)
Dr Hughes stated I should not be sending letters to him, the TIO or Telstra unless the letters related directly to my claim. I received threats from Telstra after the signing of the agreement. Telstra refused to supply requested FOI documents and forced me out of their Melbourne Exhibition Street head office after I discovered some of my requested FOI documents were defaced while I was at lunch. Yet Dr Hughes and Warwick Smith would not approach Telstra on my behalf and demand Telstra explain those threats. The Australian Federal Police were supposed to investigate these threats and did not. It seemed Telstra controlled the whole arbitration process. This is why I stood out, alone, asking what the #$?* is going on! Where was the Portland Cape Bridgewater exchange logbook? This one document, amongst thousands, on its own would prove my case: my ongoing telephone problems and those of other Cape Bridgewater and Portland residents were true, as the daily recording of those faults, penned into the log book each day by the various technicians, would have shown. I was on my own, as were the other COT cases. Of course, later the Senate uncovered that Telstra withheld most, if not all, of the relevant, requested documents. However, the Senate’s findings, regarding this withholding, were tabled three years after my arbitration over. This was three years too late: Telstra had won and concealed that my ongoing complaints were real.
Was this Log Book also concealed from the AFP?
While one sworn statement, dated 10 August 2006, by an ex-Telstra protective service officer is addressed elsewhere in absentjustice.com, I again raise this statement here because points 20, 21 and 22 support how important this withheld Portland/Cape Bridgewater logbook was:
“(20) …I had cause to travel to Portland in western Victoria in relation to a complaint involving suspected illegal interference to telephone lines at the Portland telephone exchange.
(21) As part of my investigation, I first attended at the exchange to speak to staff and check the exchange log book which was a record of all visitors to the exchange and a record of work conducted by the technical officers.
(22) When I attended at the exchange, I found that the log book was missing and could not be located. I was informed at the time by the local staff that a customer from the Cape Bridgewater area south of Portland was also complaining about his phone service and that the log book could have been removed as part of that investigation. I was not told about this complaint prior to travelling to Portland and when I made inquiries by telephone back to Melbourne I was told not to get involved and that it was being handled by another area of Telstra. I later found out that the Cape Bridgewater complaintant [sic] was a part of the COT Cases”. (See Main Evidence File No 30)
The government heard the four original COT claimants were “denied all necessary documents to mount their case against Telecom” and “denied access to documents that could have influenced them when negotiating the arbitration rules, and even in whether to enter arbitration at all”, concerning an arbitration process it endorsed. The government should have immediately appointed a review of the whole sordid affair. It never did.
Six months into my arbitration, I had still not received any relevant FOI information from Telstra and the arbitrator was disregarding my pleas for the promised documents. Telstra and their lawyers were illegally concealing documents from me under the COT strategy. Dr Hughes wasn’t demanding answers from Telstra; Senator Ron Boswell went into action to attempt to gain the documents I needed to support my claim.
Senator Ron Boswell
Chapter Five – Senator Boswell
Page 180 ERC & A, from official Australian Senate Hansard, dated 29 November 1994, reports Senator Ron Boswell asking Telstra’s legal directorate:
“Why did Telecom advise the Commonwealth Ombudsman that Telecom withheld FOI documents from Alan Smith because Alan Smith provided Telecom FOI documents to the Australian Federal Police during their investigation?” (See Senate Evidence File No 31)
After receiving a hollow response from Telstra, which the senator, the AFP and I all knew was completely false, the senator states:
“I will ask you another question. Telecom is cooperating fully with the Australian Federal Police inquiry. Why would Telecom withhold vital documents from the AFP? Also, why would Telecom penalise COT members for providing documents to the AFP which substantiate that Telecom had conducted unauthorised interceptions of COT members’ communications and subsequently dealt in the intercepted information by providing that information to Telecom’s external legal advisers and others?”
Even though the Commonwealth Ombudsman and Senator Boswell both advised that Telstra’s ‘Inner Establishment’ threatened me a number of times that, if I didn’t stop assisting the AFP with their investigations into Telstra’s alleged interception of my telephone and faxes, Telstra would not provide me with the documents I desperately needed to prove my case against them. I raised these threats with Dr Gordon Hughes and Warwick Smith, in a document dated 29 November 1994 and attached to official Senate Evidence File No 31. The same issue was also covered in statements of concern made by the AFP on 26 September 1994 (see Australian Federal Police Investigations). Yet, neither Dr Hughes nor Warwick Smith attempted to intervene on my behalf, even though threats made to a claimant by the defence, during litigation, is classified as a criminal act.
There is no amendment signed by me in my arbitration agreement nor did the arbitration agreement mention the arbitrator had a ‘terms of reference’ that allowed him not to address Telstra’s unauthorised interception of telephone conversations and faxes. It is highly likely that that the AFP never supplied either me or the arbitrator with a copy of its findings in relation to my claims because they were unaware (as the claimants were also unaware) that the arbitrator was NOT ALLOWED to address these issues because he had agreed to “terms of reference” that protected Telstra from being held accountable for their unauthorised interception of phone conversations and faxed claim documents.
Many of those within the Establishment said that it was actually unconstitutional to force the COT cases into an arbitration process with Telstra while the Australian Federal Police (AFP) were still investigating Telstra for alleged phone and fax hacking of the COT cases’ businesses and, furthermore, Telstra was also being investigated for stealing from the people of Australia i.e; rorting millions of dollars from the public purse SENATE Official Hansard, it was acknowledged that it was clearly an unworkable process. This didn’t stop the arbitrations however, but it does raise a number of important questions:
- How could two separate investigations into Telstra, for allegedly unlawful conduct, be undertaken by two different organisations at the same time i.e an arbitrator as well as the AFP? As far as we can find, this situation is unheard of in any other Western democracy.
- While all the COT cases attempted to keep their individual small businesses going while their arbitrations continued, how could they be expected to submit a complex submission to an arbitrator and at the same time, assist the AFP with their investigations?
- Who decided that this situation would be allowed to continue?
Not only was it grossly undemocratic for these small-business people to be put into such a situation but, while these two investigations (the one run by the AFP and the arbitrations themselves) were being run concurrently. While these two investigations were being run concurrently, the Commonwealth Ombudsman was also investigating Telstra for acting unlawfully and outside of the Freedom of Information Act (FOI Act, 1984), for NOT supplying the COT cases with our promised FOI documents we needed to support our claims. That investigation started before the COTs signed their arbitrations and continued for the whole five-year period of the COT arbitrations.
In my case, NINE Telstra employees submitted false witness statements to the arbitrator concerning my claims was the anger and defiance of the truth told by these nine Telstra employees due to the publicity within government that it was the threat of a full Senate hearing into the COT Cases telephone claims that many Telstra employees thought would further expose more rorting of the public purse than what the NSW police were uncovering. How could the COT Cases receive a fair process when so many Telstra employee’s were under investigation for corrupt practices? Concealing documents from the COT Cases during their respective arbitrations was only one of the mant tactics Telstra management and their employees used on the COT Cases in order to disrupt the arbitration processes.
30 January 1995: I again writes to Dr Hughes, explaining many alarming facts and noting:
“A ruling regarding information associated with the Defence Documents being presented in this manner must be addressed. I had no intention of drip feeding information to the Arbitration Dr Hughes, once my final Submission had been completed.
“It is now thirteen months since the first of four FOI applications was presented to Telstra and yet, even after all this time, Telecom have not supplied the material sought: NNI documentation, technician’s diary notes, ELMI raw data, CCS7, CCAS and EOS data and voice monitoring fault records. Very little of this information has been supplied under the Arbitration Procedure.” (AS 146)
30 March 1995: This report by Sue Hodgkinson of FHCA, to Warwick Smith, TIO, confirms Warwick Smith and his resource unit were fully aware Alan did not receive the bulk of his requested FOI documents until two weeks after Telstra submitted their defence. In this letter, Ms Hodgkinson states:
“Alan Smith … has included volumes of documents and the direct relevance of all this information is difficult to ascertain. Nonetheless, Smith has gone to a lot of trouble to assemble his FOI information which, as you may be aware, was not provided in full by Telecom until 23rd December 1994. …
- Smiths [sic] claim was formally certified as complete in November 1994. …
- On 13 December 1994, Telecom delivered its defence to the Arbitrator.
- Smith has stated verbally to myself that, on 23 December 1994, he received 90 kilograms of FOI material. As his claim was ‘finalised’, he did not have the ability to examine these documents and add to his claim. (AS 103)
With regard to Ms Hodgkinson’s difficulty in understanding the relevance of the material Alan submitted, these were highly technical documents and they were presented to me, by Telstra, in apparently unrelated batches; many documents didn’t even arrive until long after I had submitted my claim. It is actually amazing that I managed to make any sense out of them at all!
That my claim was certified as complete in November 1994 is correct, according to the resource unit. The 90 kilograms of FOI material referred to by Ms Hodgson belonged to the Fortitude Valley and Lutwyche telephone exchanges in Brisbane, more than 1,200 kilometres from my exchange. How could I submit this Fortitude Valley and Lutwyche technical documentation into my own Cape Bridgewater Holiday Camp arbitration claim when it belonged to Brisbane COT case members Ann Garms and Maureen Gillan?
24 May 1995: Mr Benjamin (Telstra’s arbitration officer) wrote to me two weeks after Dr Hughes deliberated on my claim. Accompanying this letter were 745 FOI documents which were delivered under the heading “Your FOI Request of May 1994”, and includes the following:
“Further documents have recently come to light that fall within your FOI request of 1994.
“Copies of these documents are enclosed. At this time a table has not been prepared giving decisions in relation to these documents as it was considered by Telecom more important you receive copies of the documents now.” (AS 183)
Twelve months after Alan originally asked for these documents, Telstra finally considers in important that he gets them – too late! And the arbitrator had gone to Greece.
Among the papers in this FOI release, Alan found two particularly relevant documents, numbered N00005/6 and N00037 (AS 135 and AS 136). Document N00005/6 is a letter dated 6 September 1994, from Telstra to Gerald Kealey of Bell Canada International in Ottawa, which confirms that the BCI tests conducted at Cape Bridgewater on 5 November 1993 were impracticable.
N00037 is an internal Telstra memo dated 23rd August 1994, which also acknowledges the BCI tests conducted at Cape Bridgewater on 5 November 1993 were impracticable. Even though documents N00005/6 and N00037 note the BCI tests conducted at Cape Bridgewater on 5th November 1003 were impracticable, none of the BCI tests conducted from 5 to 9 November could have been conducted, because the CCS7 equipment could not be operated at Cape Bridgewater or the Portland Exchanges (see Telstra Falsified BCI Report ‘masked identities).
This website discusses Telstra’s threats to withhold all future FOI documents from my arbitration because I helped the Australian Federal Police with their investigations into Telstra’s unlawful interception of my telephone conversations, but does not completely cover the continuing FOI saga or the discovery that these were not just empty threats because, as it eventuated, Telstra certainly did withhold documents, a situation that the Commonwealth Ombudsman’s office is fully aware of.
In the last paragraph of this document the deputy TIO Ombudsman, wrote to the TIO, and referred to the proof I left with her confirming Telstra had altered information on the supplied Freedom of Information (FOI) documents noting ‘He left an example of this with us’.
It is most important to note on 11th July 1996, when as a member of AUSTEL (now ACMA) this same Deputy TIO wrote to the Hon Senator Richard Alston, Minister for Communications attaching the sixth status report on AUSTEL’s recommendations of the COT Cases report (see Call For Justice Evidence File/87) which notes on page 12:
“The TIO believes that Telstra has, in all claims, responded in an overly legalistic manner. It has shown a tendency to deny liability under every potential clause of action on the basis of perceived statutory and contractual immunities.
It has provided large and detailed defences, often out of proportion to the size or complexities of claims. It has lodged lengthy and detailed requests for further and better particulars in most arbitrations. In short, while the arbitration procedure has sought to relax the legal burdens, Telstra’s conduct has certainly not.”
This is the same Deputy TIO, administrator to my arbitration who I provided conclusive evidence (see Burying The Evidence File 2). that Telstra was destroying evidence I was requested in May 1994. As the facilitators of the process, AUSTEL (now ACMA) had a duty of care to inform the Minister that AUSTEL was provided evidence, which confirmed that Telstra was acting unlawfully during my arbitration by destroying and/or altering, requested FOI documents.
Furthermore, had this Deputy TIO and other officers of AUSTEL (refer to the following AUSTEL FOI document folio 94/0269-05 – 22) acted appropriately and informed the relevant Communications Ministers at the time that Telstra was destroying requested FOI documents, not just withholding them, there may well have been a thorough Senate enquiry into this unlawful conduct by Telstra.
This seems to suggest that the rumours were actually more than just rumours and the Victorian Commercial Arbitration Act 1984 WAS used as a shield to mask the unethical way in which the COT arbitrations were conducted, a situation that is discussed in more detail in Chapter forty-five, which also explains that, on 23 March 1999, after the conclusion of a Senate Estimates Committee Hearing into why this Government owned carrier withheld so many documents from the COT claimants, the Australian Financial Review (an Australia newspaper) reported that the Chairman of the Senate Committee, Senator Alan Eggleston, had stated:
“A Senate working party delivered a damming report into the COT dispute. The report focussed on the difficulties encountered by COT members as they sought to obtain documents from Telstra. The report found Telstra had deliberately withheld important network documents and/or provided them too late and forced members to proceed with arbitration without the necessary information. Senator Eggleston said: “They [Telstra] have defied the Senate working party. Their conduct is to act as a law unto themselves”.
When this information is added to the second appointed TIO’s statement that the arbitrations were conducted ‘the arbitrator had no control over the process because it was a process that was conducted entirely outside the ambit of the arbitrations procedures’, this certainly seems to add more weight to those rumours suggesting that the arbitrator had was forced to use Telstra’s drafted arbitration agreement (rules) and it was never his intention of doing so. Threats were nothing new to the COT claimants.
Even though the Institute of Arbitrators Mediators Australia (IAMA) agreed to investigate my claims against the arbitrator, they have chosen not to make a finding on my 21 submissions without explaining why, could it be that the COT arbitrations were conducted so appallingly? Could it be that this was not the only instance of using the Commercial Arbitration Act 1984 as a shield to protect those in power, who therefore appear to have that same power over the IAMA?
It is this very evidence that has now compiled in my manuscript ‘Ring for Justice’ and on my webpage absent justice.com in the format it has, as well as telling my story using documented evidence attached as downloads to absent justice.com, obtained mostly under the Freedom of Information Act (FOI Act). Because of the extent of the collusion and deception by so many of the main players in this unbelievable story, we had no other real option but to write the story in the dated stages as we have by showing:-
- when the corruption started;
- when the deception became apparent;
- when the defendants first withheld or destroyed vital evidence; and/or
intercepted this evidence on route to various parties before allowing it to be redirected to its intended destination.
We do not apologise to the reader for breaking up the story as we have into sections, often using the exact text recorded in the received FOI documents we have numbered on the enclosed CD which allows the reader to see for themselves why this story had to be told in the format we have done here. During this saga, sometimes one important issue or one important document is connected to a number of different events or issues and so, as part of the preparation of this website, it has therefore often been necessary to duplicate the details of such an issue and/or the references to a single document, so as to ensure that all the events are properly explained.
Stop these people at all cost
On 24 June 1997, the day before this COT Strategy was exposed (see below), ex-Telstra employee turned whistleblower, Lindsay White, advised a Senate estimates committee that, while he was assessing the relevance of the technical information requested by the COT claimants, two Telstra officials gave him instructions.
Mr White: “In the first induction – and I was one of the early ones, and probably the earliest in the Freehill’s [Telstra’s Lawyers] area – there were five complainants. They were Garms, Gill and Smith [me], and Dawson and Schorer. My induction briefing was that we – we being Telecom – had to stop these people to stop the floodgates being opened.”
Senator O’Chee: “What, stop them reasonably or stop them at all costs –or what?”
Four months into my arbitration, I informed the arbitrator that Telstra was refusing to supply me with any more FOI documents because I had given sensitive FOI documents to the Australian Federal Police to assist their investigations into Telstra’s interception of my telephone conversations. I received not one single response concerning these threats – from neither the arbitrator nor the TIO.
Thus, the threats became a reality. What is so appalling about the withholding of relevant documents is that no one in the TIO office or government has ever investigated the disastrous impact this had on my overall submission to the arbitrator. Material, which could further support my claims before the arbitrator, was denied me.
On 25 June 1997, the day after the Senate committee were told we five COT cases had to be stopped at all cost from proving our claims, a number of senators discussed Telstra’s legal firm and its COT strategy, dated 20 September 1993. This strategy advises how Telstra can conceal technical information from the four COTs under Legal Professional Privilege, even though the documents were not privileged (see SENATE Hansard, page 5169). The COT strategy is available at Prologue Evidence File No/1-A.
The government advises any interested parties that the COT issues cannot be investigated because of the confidentiality clause we signed in our individual arbitration agreements. This advice by the government is misleading and deceptive. Firstly, page 5169 of the following SENATE Official Hansard shows the government is aware we four COT cases were targeted by Telstra’s lawyers before the arbitrations commenced. This is one issue where the gag clauses should not be used to stop an investigation into our claims. Secondly, both the government and claimants were advised the arbitration agreement for first four arbitrations was totally drafted by the Telecommunications Industry Ombudsman lawyers when it was drafted by Telstra’s own arbitration lawyers. Page 5169 of this same Senate Hansard shows Telstra’s lawyers spuriously advised Telstra how to conceal technical documents from us four COT cases under Legal Professional Privilege even though the documents were not privileged. How can a democratic, legally conducted arbitration process conceal this conduct, which began seven MONTHS before we four COT cases signed our arbitration confidentiality agreements?
A group of small-business operators (the COTs) on one side of a fight against Telstra’s bottomless purse, on the other, was really no contest, even though the COTs had right on their side because Telstra had access to the public purse they had been stealing from for many, many years. In order to win the battle, the COTs needed a strong assessor-come-arbitrator who would demand that this thieving and skulduggery be properly investigated and fully addressed before the arbitrations even began. If such a person had been appointed – someone with ethics and a spine strong enough to stand up to the power of Telstra and demand that an investigation be completed before any arbitration commenced – then we would all have gone through a much fairer process.
On 25 June 1997, it was reported (page 5163, in SENATE Official Hansard – Parliament of Australia), Telstra employees rorted millions upon millions of dollars from Telstra shareholders, i.e., the government and Australian citizens, who then owned Telstra.
No democratic country should have force claimants to enter into an arbitration process with a corporation like Telstra, while the Senate was investigating its senior management and its middle management was under investigation by both the state and federal police for rorting millions of dollars from Telstra shareholders during the same seven years we were in confrontation with Telstra. (See Front Page)
Just as astounding, on page 5169 of this same 25 June 1997 SENATE Official Hansard, a number of senators discuss the legal document Telstra received from its lawyers, titled COT strategy and dated 20 September 1993. This strategy advises how Telstra can conceal technical information from the four COTs under Legal Professional Privilege, even though the documents were not privileged (see Prologue Evidence File No/1-A).
The author of this COT strategy is the same lawyer with whom I was forced to register each of my phone complaints, in writing, before Telstra would address these problems. NONE of the fault information I provided to this lawyer, concerning ongoing telephone problems and Telstra’s response to those problems, was ever released to me during my arbitration.
On 26 September 1997, more than two years after most of the arbitrations had been concluded, the TIO, John Pinnock, formally addressed a Senate estimates committee and also reported to the Department of Communication Information Technology and the Arts legislation committee (see Arbitrator File No/71), that:
“In the process leading up to the development of the arbitration procedures – and I was not a party to that, but know enough about it to be able to say this – the claimants were told clearly that documents were to be made available to them under the FOI Act”
“For present purposes, though, it is enough to say that the process was always going to be problematic, chiefly for three reasons. Firstly, and perhaps most significantly, the arbitrator had no control over that process, because it was a process conducted entirely outside the ambit of the arbitration procedures.”
Why were the arbitrations not conducted under the agreed ambit of the arbitration procedures? How can arbitration be a just process when the arbitrator has no control over how it is conducted? When did Dr Hughes (arbitrator) lose control over the arbitrations? Was it the first week, or two months or even nine months into the process? And, just as importantly, who authorised him to conduct the process entirely outside of the ambit of the arbitration procedures.
Why has John Pinnock’s admittance that our arbitrations were not conducted under the agreed-to process not been acted upon? Why has Mr Pinnock’s admittance that the COT Cases were told clearly that documents were to be made available to us and it is now common knowledge those documents were not made available to the majority of the COT Cases as our An injustice to the remaining 16 Australian citizens page so clearly shows?
Chapter Six – Senators have their say
The Australian government, including the communications regulator AUSTEL, the lawyers representing the COT cases and the COT cases themselves were assured the arbitration process would be conducted under the ambit of the Arbitration Act 1984. They were also assured the arbitration rules would be drafted totally independently of Telstra, in the same fashion as in the UK when British Telecom agreed to arbitration and the Chartered Institute of Arbitrators UK drafted the agreement in Australia. The evidence we have supplied on absentjustice.com, shows this was not the case at all: the arbitrations were not conducted under the ambit of the arbitration act and the agreement was not drafted independently of Telstra.
Senator Kim Carr
On 27 January 1999, after having read my first attempt at writing Call For Justice, Senator Kim Carr wrote:
“I continue to maintain a strong interest in your case along with those of your fellow ‘Casualties of Telstra’. The appalling manner in which you have been treated by Telstra is in itself reason to pursue the issues, but also confirms my strongly held belief in the need for Telstra to remain firmly in public ownership and subject to public and parliamentary scrutiny and accountability.
“Your manuscript demonstrates quite clearly how Telstra has been prepared to infringe upon the civil liberties of Australian citizens in a manner that is most disturbing and unacceptable.” (Arbitrator Evidence File No 66)
Senator Kim Carr
Senator Kim Carr also criticised the handling of the COT arbitrations on 11 March 1999 as the following Hansard link shows. Addressing the government’s lack of power, noting:
“What I do make a comment on is the question of civil liberties and the rights of citizens to approach this parliament and seek redress for their grievances when corporate power, particularly in a publicly owned corporation, has been abused. And there can be no question that that is what is at the heart of this issue.”
And addressing Telstra’s conduct, by saying:
“But we also know, in the way in which telephone lines were tapped, in the way in which there have been various abuses of this parliament by Telstra—and misleading and deceptive conduct to this parliament itself, similar to the way they have treated citizens—that there has of course been quite a deliberate campaign within Telstra management to undermine attempts to resolve this question in a reasonable way. We have now seen $24 million of moneys being used to crush these people. It has gone on long enough, and simply we cannot allow it to continue. The attempt made last year, in terms of the annual report, when Telstra erroneously suggested that these matters—the CoT cases—had been settled demonstrates that this process of deceptive conduct has continued for far too long”. (See parlinfo.aph.gov.au/parlInfo/search/displaychamberhansards1999-03-11)
Parliament House Canberra
Senator Schacht was possibly more vocal:
“I rise to speak to this statement tabled today from the working party of the Senate Environment Communications, Information Technology and the Arts Legislation Committee—a committee I served on in the last parliament—that dealt with the bulk of this issue of the CoT cases. In my time in this parliament, I have never seen a more sorry episode involving a public instrumentality and the way it treated citizens in Australia. I agree with all the strong points made by my colleagues on both sides who have spoken before me on this debate. What was interesting about the Senate committee investigating this matter over the last couple of years was that it was absolutely tripartisan—whether you were Labor, Liberal or National Party, we all agreed that something was rotten inside Telstra in the way it handled the so-called CoT cases for so long.
The outcome here today is sad. There is no victory for citizens who have been harshly dealt with by Telstra.” (See parlinfo.aph.gov.au/parlInfo1999-03-11)
Senator Alan Eggleston
On 23 March 1999, the Australian Financial Review reported on the conclusion of the Senate estimates committee hearing into why Telstra withheld so many documents from the COT cases:
“A Senate working party delivered a damning report into the COT dispute. The report focussed on the difficulties encountered by COT members as they sought to obtain documents from Telstra. The report found Telstra had deliberately withheld important network documents and/or provided them too late and forced members to proceed with arbitration without the necessary information,” Senator Eggleston said. “They [Telstra] have defied the Senate working party. Their conduct is to act as a law unto themselves.”
Senator Len Harris – One Nation
On 25 July 2002, Senator Len Harris travelled from Cairns in Queensland (a trip that took more than seven hours) to meet four other COTs and me, in Melbourne, in an attempt to ensure our claims of discrimination against the Commonwealth were fully investigated. He was appalled that 16 Australian citizens were so badly discriminated against in such a deplorable fashion by the then-Coalition government, despite a Senate estimates committee working party being established to investigate all 21 COT-type claims against Telstra.
He was stunned at how I had collated this evidence into a bound submission. When Senator Harris read the 9 August 2001 letter from Senator Alan Eggleston Liberal Party warning me that if I disclosed the in-camera Hansard records (which supported my claims that sixteen Australian citizens had been discriminated against in the most deplorable manner) I would be held in contempt of the Senate and risk jail, he Senator Harris, was very upset to say the least.
At a press conference the next day, Senator Harris aimed questions at the chief of staff to the Hon Senator Richard Alston, Minister for Communications. He asked:
“Through the following questions, the media event will address serious issues related to Telstra’s unlawful withholding of documents from claimants, during litigation.
- Why didn’t the present government correctly address Telstra’s serious and unlawful conduct of withholding discovery and/or Freedom of Information (FOI) documents before the T2 float?
- Why has the Federal government allowed five Australians (from a list of twenty-one) to be granted access to some of the Telstra discovery documents they needed to support their claims against Telstra, but denied the same rights to the other sixteen?
- Why has the Federal Government ignored clear evidence that Telstra withheld many documents from a claimant during litigation?
- Why has the Federal Government ignored evidence that, among those documents Telstra did supply, many were altered or delivered with sections illegally blanked out? (See Senate Evidence File No 56 ).
Please click onto Manipulating the Regulator and find out how the then Australian communications regulator also concealed relevant documents from the COT Cases prior to and during the arbitration process.
To be continued