12 Alternative remedies pursued (draft)

12 Alternative remedies pursued was last edited in June 2021. This page is currently being edited and expanded.

It’s most important we advised the reader how and when we COT Cases first discovered and then reported our discovery to the government that Telstra was knowingly installing faulty telephone equipment at the customer’s premises (see Tampering With Evidence – TF200) and/or using known faulty Ericsson telecommunications equipment in their telephone exchanges.

In Chapter Seven of the AUSTEL COT Cases Report, dated April 1994, AUSTEL notes my business and a number of other COT businesses suffered major network problems associated with Ericsson AXE equipment. At point 7:40, when discussing my AXE Ericsson problems, it notes:

“AUSTEL recently became aware that Telecom (Telstra) had prepared an internal document on the subject of this AXE fault and on 21 March 1994 sought a copy from Telstra.”(See ExhibitAXE Evidence File 1 to 9)

Since this is in a government-prepared report, Telstra would have been duty-bound to provide this AXE report to AUSTEL. It is clear from AUSTEL’s secret findings, because of the damaging nature of the findings contained in it, that AUSTEL had obtained damning information from somewhere. This information would not only have proved to the arbitrator my claims were valid (had it not been concealed from him during my arbitration), but the arbitrator would also have had to investigate Telstra’s ongoing use of faulty Ericsson equipment (which was still being in use during the COT arbitrations). I only received my copy of AUSTEL’s Adverse Findings in November 2007, as the attached cover page to my FOI documents received show.

On the receipt of this document and realising that AUSTEL had requested the AXE report from Telstra in March 1994, I, too, sought this document during my two 2008 and 2011 Administrative Appeals Tribunals, but to no avail (see Chapters 8, 9 and 12 below. AUSTEL (now ACMA) would not release it, even after senior AAT member Mr G Friedman suggested the government solicitors, as a show of good faith, provide to me free of charge all of my ACMA documents sought under various FOI requests.

Why were ACMA and its government lawyers afraid to release my Ericsson AXE FOI request?

Brief Ericsson Introduction  

See also exhibit link Telstra’s Acronyms & Jargon

Towards the end of 1993, the COT group was lobbying hard on two counts. First, we were pushing for settlements in the form of a commercial assessment that would properly address the financial losses our businesses had suffered. This would be a specifically non-legalistic process. The Labor government of the time had endorsed it as the most appropriate path towards justice in our case. In 1994, during my government-endorsed Telstra settlement/arbitration process, one of my arbitration consultants, Barry O’Sullivan (later became a Queensland Senator) wrote on an internal memo:

“…We also need to take into account the fact that Mr Smith has suffered stress and has been diagnosed as suffering from post-traumatic stress syndrome. This disorder has been documented by his resident Psychologist in Portland Kay Frankin, and also a psychiatrist he has visited in Geelong, Dr Chris Mackie”(See Exhibit 4 AXE Evidence File 1 to 9)

While somewhat reluctant to disclose I suffered post-traumatic stress syndrome, it is of considerable significance, because the COT saga has played an integral part in it. Many other COTs have suffered from similar stress-related issues. If we had lost our businesses, or a significant part of our businesses, as a result of fire, theft, floods or bad management decisions, most of us could accept what had happened and even if we were not happy about the circumstances we found ourselves in, we would eventually find ways to sort through issues and move on. Before the advent of emails and internet generated businesses, fully functioning phone and fax machines were essential to the successful operation of businesses dependent on them for clients.

For the first six years of my business operation, the only alternative available when the phone lines were not working, was to drive 20 kilometres into Portland to make my phone calls. We did not even have a public phone in Cape Bridgewater until after 1995. On the occasions, I tested my business phone line by ringing my office from the Portland public phone, imagine my dismay and frustration when I consistently received a recorded telephone message announcing that the number you are ringing (my own business!) is not connected, when I knew it certainly was connected to Telstra’s network.

For the purpose of highlighting that anyone can fall victim to this stressful situation, I will briefly move forward eight years to when I sold my beloved holiday camp in December 2001; six years after my arbitration process had failed to rectify the ongoing telephone and faxing problems. Darren Lewis, the new proprietor of my business, also sought help from a psychologist in Portland to assist him in dealing with a business that had massive telephone communication problems up to at least November 2006.

A psychologist visited me on 23 February 2007 to discuss Darren’s psychological state and the suicidal thoughts he was, then, reporting. He also wanted to confirm that the dreadful telephone saga Darren was talking about was real, and not his imagination.

Returning back to April and May 1993, where our lives were being torn apart by Telstra’s refusal to accept that we four might have valid claims. Telstra’s internal emails confirm Telstra’s management was trying to force us, four COT members, into court.

The author of one of these internal Telstra emails to various senior executives on 21 April 1993, for instance, referred to raising the issue of court with us:

“Don, thank you for your swift and eloquent reply. I disagree with raising the issues of the courts. That carries an implied threat not only to COT cases but to all customers that they’ll end up as lawyer fodder. Certainly that can be a message to give face to face with customers and to hold in reserve if the complainants remain vexatious” (See Arbitrator File No 57)

Clearly, Telstra management intended to decide when claimants were becoming vexatious and that this would be when they would threaten the claimants with legal action. This decision, from a corporation, continually held up to be a benevolent organisation and acting for the good of the Australian public; yet behind closed doors, Telstra management intended to turn legitimate claimants into lawyer fodder if they persisted with their claims. This April 1993 Telstra document had a particularly devastating effect on me.

If this is not enough skullduggery, consider Telstra’s executives were clearly aiming to muzzle the media regarding the validity of our valid claims. The sense of fear within the COT group was understandable, but it intensified once it became apparent that this government-owned corporation had the COT cases under surveillance. This Telstra internal email dated 16 June 1993 discusses a TV news programme:

“Good news re channel nine news. Haven’t checked all outlets but as it didn’t run on the main bulletin last night, we can be pretty certain that the story died the death. I wish I could figure which phase it was that convinced [A TV journalist] not to proceed. Might have been one of Jim Holmes (Telstra’s Corporate Secretary] pearls…

Neil  Mitchell had another bite this morning. Said to keep those faxes rolling into Schorer.” (See Arbitrator File No/93)

The Telstra executive who apparently delved into pearl diving was Telstra’s corporate secretary. What type of pearl was cast by this high-flying corporate secretary? Were they pearls of wisdom, financial pearls or another type of pearl that convinced a respected journalist to drop a story? The Neil Mitchell referred to in this email was and still is a talkback interviewer on Melbourne’s 3AW693 radio station.

It is important to note that COT spokesperson Graham Schorer had a very high regard for Neil Mitchel and 3AW693 during this very difficult period in our lives.

Why is this particular instance so important, that I raise here? The answer is simple. If indeed metaphorical pearls can convince a respected journalist to drop a story, cannot similar pearls be cast before other professionals assigned to the forthcoming COT case arbitrations, to entice them not to act independently? It is clear from documents on absentjustice.com that relevant adverse material against Telstra and others assisting Telstra, was concealed to prevent it from being addressed during my arbitration.

Is that news reporter (journalist) who concealed from the Australian public what I found in that briefcase inadvertently left at my business proud owners of pearl necklaces? This then corporate secretary was also a member of the Telecommunications Industry Ombudsman Board (TIO) during the TIO-administered COT arbitrations which government records show (see Telecommunication Industry Ombudsman) was allowed to attend TIO monthly board meeting when COT related arbitration issues were discussed. The Telstra briefcase Ericsson issue was one of my arbitration claims but was never defended by Telstra or discussed in the arbitrator’s findings.

On 3 June 1993, because of my constant complaints to the regulator, including incorrect charging, Telstra’s network investigations department was finally involved and, for the very first time, Telstra investigators were sent to Cape Bridgewater. At last, I thought, I would be able to speak directly to people who knew what they were talking about and find the underlying cause of the issue. However, the two Telstra senior technicians from Melbourne told me nothing I hadn’t heard before. With nothing resolved, they finally prepared to leave and head back to town.

One particular document labelled Problem 1 shocked me. It referred to Telstra being aware that the RVA fault of March 1992 had actually lasted for eight months, not the alleged three weeks that I’d been told on the day I accepted my compensation payment. I received a copy of a similar document (see AUSTEL’s Adverse Findings) further supporting this document, in November 2007 from the now-Australian Communications Media Authority.

My own transport was, by this time, long gone; sold to pay some of my mounting debts, and I also needed to go into Portland. The technicians offered me a lift. After spending some time in Portland I got a lift back to Cape Bridgewater with a neighbour. In my office, I found that one of the technicians had inadvertently left behind a briefcase. I opened the briefcase to find out who owned it and the first thing I saw was a file titled SMITH, CAPE BRIDGEWATER. After five gruelling years fighting with Telstra and being told various lies along the way, here was possibly the truth, as seen from Telstra’s perspective. Some of the documents in this file were much too technical for me to interpret. ASome that I could decipher, however, dated back to the compensation payment I received on 11 December 1992. The Smith, Cape Bridgewater file was provided to Senator Richard Alston in August 1993, during a meeting in his Melbourne office. This file confirmed Telstra was aware they had a major network problem in all of their AXE Ericsson telephone exchanges. Senator Richard Alston was also alarmed that it appeared as though Ericsson testing equipment might also have a compatibility problem when used in rural locations. Two years later, in September 1995, The Hon David Hawker MP  provided proof of these facts to Senator Alston in his Canberra parliament house office in the company of a number of witnesses. In June 1996, I provided similar non-addressed arbitration Ericsson claim material to Paul Fletcher, Senators Richard Alston’s Chief of Staff (see Open Letter File No/41/Part-One and File No/41 Part-Two), Mr Fletcher declined to investigate these documents.

Even though Paul Fletcher, is now the Hon Paul Fletcher MP, Minister for Communication in the current government my valid claims are still being suppressed, as of 2021.

Chapter One

The first Remedy pursued in November 1993.

The first remedy to have my Telstra and Ericsson related claims assessed was facilitated by AUSTEL the then government communications regulator in November 1993, which then led to those matters being arbitrated between April 1994 and May 1995.

As we have stated in our Prologue page at the beginning of my ebook titled Absentjustice.com it is important we use the Ericsson https://www.channelnews.com.au/key-telstra-5g-partner-admits-to-bribery-corruption/ link as part of my ongoing attempt to have the Australian government impartially investigate my claims against Telstra and whether Ericsson should have been allowed to purchase Lane Telecommunications Pty Ltd during the period of the COT arbitrations.

How could a comprehensive log of my arbitration claim documents namely: i.e.; my claims of incorrect charging by Telstra of my telephone and faxing service along with some 3,000 or more collated documentation showing Telstra knowingly used faulty Ericsson telecommunication equipment which other countries around the world had removed from service once they had uncovered the many deficiencies in that equipment.

A letter from the Arbitration Project Manager on 18 April 1995, advised the TIO, the arbitrator and the TIO counsel that:

“It is unfortunate that there have been forces at work collectively beyond our reasonable control that have delayed us in undertaking our work.”

. . . .

Any technical report prepared in draft by lanes [the Australian technical consultants that the COT Cases mistrusted] will be signed off and appear on the letterhead of (See Arbitrator File No/17)

NONE of the four COT claimants were ever told about these forces at work” nor were we warned that, under the noses of the TIO, his legal advisor and the arbitrator, these unnamed forces were allowed to infiltrate and manipulate the arbitration process. Three legal experts appeared to note nothing out of the ordinary or any illegalities, while the lives of the four COT cases were held to ransom by these STILL unnamed forces.

In this 18 April 1995, letter the Project Manager advised the TIO (see Arbitrator File No/17) that the Director of the Canada technical consultancy firm appointed by the TIO as the Principal technical consultants who was to take charge of the arbitration technical-side of the operation arrived in Australia on 13 April 1995. He worked over the Easter Holiday period, particularly on the Smith claim where the Project Manger’s true colours were exposed when he noted:  Any technical report prepared by draft by Lanes (the company who was soon to be purchased by Ericsson) will be signed off and appear on the letterhead of DMR Group Inc” [the Canadian technical consultancy the COT Cases trusted].

Here is clear proof, that even before the arbitrator brought his technical findings on 11 May 1995, the arbitration resource unit was prepared to mislead him into believing DMT Group Inc (in Canada) had prepared all of the technical findings on my claims when Lane had secretly assessed them without making a finding against Ericsson.

The Canadian firm received only three of my 22 submitted claim documents along with Telstra’s defence of my arbitration claim on 21 March 1995 (see Arbitrator File No/22). Telstra addressed no more than 10% of my claim documents. Their submitted response to my claim also supports this fact. And worst of all, none of the ongoing billing problems and my Ericsson data (some 3,000 or more documents) submitted in my comprehensive log of fault complaints were addressed.

The TIO-appointed financial resource unit Ferrier Hodgson Corporate Advisory (FHCA) advised this Canadian technical consultant on 5 April 1995 that the TIO-appointed Australian technical consultants would have his draft technical report prepared by 7 April 1995 (see Arbitrator File No/23).

The arbitrator’s draft award, on page three, states:

“…pursuant to paragraph 8 of the arbitration agreement, I had power to require a ‘Resource Unit,” comprising of FHCA, and DMR Group Australia Pty Ltd, to conduct such inquires or research as I saw fit;

On 21 February 1995, by the time I was satisfied that the submissions of all relevant material by both parties was complete, I instructed the Resource Unit FHCA (and, through them DMR) to conduct certain inquiries on my behalf (Exhibt AS 164 file AS-CAV 128 to 180).

The Arbitrators’ final award modifies these points so that they read:

“…pursuant to paragraph 8 of the arbitration agreement, I had power to require a ‘Resource Unit’ comprising FHCA Accountants, and DMR Group Australia Pty Ltd, to conduct such inquires or research as I saw fit. By consent of the parties, the role of DMR Group Australia Pty Ltd was subsequently performed jointly by the Canadian technical consultancy group and the Australian consultants;

“On 21 February 1995, by which time I was satisfied that the submissions of all relevant material by both parties was complete, I instructed the Resource Unit FHCA to conduct certain inquires on my behalf (Exhibit AS 165 file AS-CAV 128 to 180).

Summary of documents (AS-CAV 160 to AS CAV 165):

The technical findings in both the draft and final awards (except for the removal of the billing issues, which needed weeks to investigate) are mirror copies of each other. However, in the draft award, the writer states he called on the DMR Group Australia Pty Ltd to conduct inquiries by 21 February 1995. DMR Group Australia Pty Ltd resigned from the arbitration process months prior to this date. This Canadian consultancy firm and the TIO-appointed consultants were not officially appointed by the TIO until 9 March 1995 and/or officially accepted by letter of consent (see Arbitrator File No/24). The Canadian company did not receive any of the technical claim and defence material until 21 March 1995 (see Arbitrator File No/22).

Just as important is the question:

  1. did the arbitrator know that David Reid from Lane actually assessed my claims documents before the independent Canadian consultant Paul Howell arrived in Australia?
  2. did the arbitrator know that Ericsson was soon to purchase Lane and that this was the real reason Lane did not assess my comprehensive log of fault complaints which had clearly found against Erricson?

Who provided the arbitrator with the technical information he used in determining my award? Why did he only address anecdotal or historic phone problems, rather than the ongoing faults that were still affecting my business of the faulty Ericsson exchange equipment that Telstra had not removed from service as was the case in other countries who had used the same Erisccon equipment?

Two Conflicting Reports, Both Dated 30 April 1995

There are discrepancies between the arbitrator’s and my version of the technical consultants’ report titled Resource Unit Technical Evaluation Report. Mr Alan Smith. CBHC. 30 April 1995. The second paragraph on page one consists of only one short sentence “It is complete and final as it is,” (see (See Prologue/Chapter One). However, the second paragraph on the equivalent page (page two) of the arbitrator’s report, also dated 30 April 1993 says:

“There is, however, an addendum which we may find it necessary to add during the next few weeks on billing, i.e. possible discrepancies in Smith’s Telecom bills.” (See Prologue/Chapter One)

There is more information in the arbitrator’s version than there is in mine. The reference to my ongoing billing problems states extra weeks are required to complete the investigation. The arbitrator did NOT provide the extra weeks.

My page two of this report (see (See Prologue/Chapter One) shows no mention of my billing claim document in my version. However, page three in the arbitrator’s version notes:

“One issue in the Cape Bridgewater case remains open, and we shall attempt to resolve it in the next few weeks, namely Mr Smith’s complaints about billing problems.

“Otherwise, the Technician Report on Cape Bridgewater is complete.” (See Prologue/Chapter One)

How can two identical technical reports with the same 23 technical assessments, both dated 30 April 1995 and apparently both prepared by the same consultants, have one version noting that the “… case remains open, and we shall attempt to resolve it in the next few weeks”, while the other has no mention of it still being open and needing weeks to complete?

Both documents state: “A comprehensive log of Mr Smith’s complaints does not appear to exist.” It did exist, as we have shown. Had this comprehensive log of fault complaints been provided to the technical consultants to assess, they would have had to overrule the arbitrator’s decision not to allow them the extra weeks they had requested, in order to investigate my faulty Ericsson exchange documents as well as my ongoing billing fault claim material.

I did not receive the report until 2 May 1995, however, the arbitrator advised me I had five days in which to respond to the report

Open Letter File No/47-A to 47-D)

Garry Ellicott and Barry O’Sullivan had definitely submitted a very comprehensive list of fault complaints as part of my submission (see Arbitrator File No/31 & 32). In the second week of June 1994, Garry Ellicott and Barry O’Sullivan freighted down eight bound, spiral reports from Queensland. One of those reports was a full chronology of events to assist with reading the comprehensive log of fault complaints. When I demanded an arbitration meeting to discuss these missing reports, my request was denied (see Arbitrator File No/48).

Could the loss of the comprehensive log of my fault complaints have anything to do with the arbitrator deciding not to proceed with my matters any further or to do with Lane in the process of being sold-off to Ericsson?

Consider:

  1. Why did the TIO-appointed arbitration technical unit state in their 30 April 1995 report that “A comprehensive log of Mr Smith’s complaints does not appear to exist” when my claim advisors Garry Ellicott and Barry O’Sullivan submitted a full chronology numbered as evident on pages 11, 12 and 22 in their reply to Telstra’s Interrogatories (see Arbitrator File No/91).
  2. Why did the TIO arbitration resource unit advise the new TIO on 15 November 1995, six months after my arbitration was over, that the billing issues I raised were not addressed in arbitration because they were not submitted until April 1995 (see (See Prologue/Chapter One)? Yet, their correspondence to the arbitrator (and copied to the TIO on 2 August 1996) show these billing issues discussed by the resource unit in December 1994 (see Arbitrator File No/53).
  3. Why did the research unit arbitration project manager, in this 15 November 1995 letter, also state: “As no further progress was likely to be made on these matters, the formal version of the Technical Evaluation Report did not leave the billing issues open.”? Yet this letter proves beyond all doubt these ongoing unaddressed billing faults were left “open”.

Canadian and Australian consultancy report 

The 23 findings included in the TIO-appointed technical consultants report draft report (inadvertently provided to me three months after the end of my arbitration) are exact duplicates of the findings in the final 30 April 1995 Canadian and Australian consultancy report provided to me by the arbitrator, but that so-called ‘final version’ had NOT been signed off.

Why did I have to wait until 16 August 1996, 15 months after the end of my arbitration, before I finally received a copy of a covering letter apparently provided by the Canadian consultancy firm to the arbitration project manager, on 30 April 1995, in relation to the final version of the 30 April 1995 draft report? And I only received that covering letter from the TIO who advised me that:

“…the Arbitrator was not obliged to forward a copy of this covering letter to you, as it did not, strictly speaking, form part of the Technical Evaluation Report. However, in the interest of alleviating your concerns, I now enclose a copy of Paul Howell’s [Canadian consultant]’s covering letter”. (See Arbitrator File No/25)

Neither the arbitrator, the TIO, nor the arbitration project manager has ever explained why the formal technical report supplied to the arbitrator and then copied to me was not signed off, or why the covering letter, allegedly written by this Canadian technical consultancy firm, was not produced until 15 months after my arbitration was declared. Unbeknown to the TIO, the Canadian consultant had already spoken directly to me, on 31 May 1995, (see my partner’s diary note, Arbitrator File No/26) advising that he didn’t sign off on the report because it was NOT FINISHED at the time it was submitted to the arbitrator, myself and Telstra for their official comments.

The following information, under the heading Important Comparisons, is just one example from a long list of crimes connected to my arbitration, and it is the combination of those criminal activities that have destroyed the last 20 years of my life and that of my partner.

Important Comparisons

The list of documents (see Arbitrator File No/22) the arbitration resource unit sent to Canada for assessment does NOT include a comprehensive log of my fault complaints, although it does include 10 volumes of Telstra’s defence documents to address the three bound volumes of my claim documents (instead of the 17 that should have been sent).

Arbitrator File No/31 also confirms that no comprehensive log of my fault complaints was assessed, either in Canada or in Australia. None of the numbered claim documents that Garry Ellicott and Barry O’Sullivan submitted were assessed either.

Arbitrator File No/32 is a list of claim documents numbered SM2, SM16, SM 17, SM20, SM21, SM45, SM46, SM47, SM48, SM49, SM50 and SM53. These documents are missing from Files No 22 and 31. This document illustrates Barry and Garry’s numbering system and shows that, on my behalf, they sent the arbitrator another seven folders that included documents numbered 1-200, 200-400, 400-600, 600-800, 800-1,000, 1,000-1289 and 2,001-2,158, i.e. a total of 2,158 documents, further to the other documents labelled as SM.

Prologue/Chapter One shows that both of these almost-identical reports are dated 30 April 1995. However, one was supposed to be a draft version and the other was supposed to be the final version. How can one include a list of 17 bound submissions, examined by the technical consultants, while the other lists only three; but both versions state that the same 4,000 documents were examined? These reports indicate that every single one of the extra 3,000 documents was apparently assessed on 30 April 1995, the day that both the reports were dated, which is clearly not even remotely possible.

An Exercise in Logic

If one version of the report shows that there are 14 sets of claim documents (3,000 more documents to be assessed as well as the other version) apparently produced on the same day, and notes that those documents were properly assessed, how could the resource consultants have assessed 3,000 extra technical documents in the space of one single day?

As an exercise in logic, let us assume consultants from the Canadian and Australian consultancies were able to assess, collate and understand the relevance of those 3,000 technical documents in the one day available. Where are the results of that phenomenal assessment? There are no references to assessments of the billing documents in the so-called ‘final’ version of the report and/or draft report. The only reference to billing issues in the arbitrator’s version indicates the need for extra weeks to assess my billing claim documents – making it blatantly obvious that the Canadian and Australian consultants were not able to magically assess, collate and understand the relevance of those 3,000 billing and faulty Ericsson claim documents at all.

Obviously, it is not humanly possible to read all 3,000 documents even briefly, let alone check complex calculations too.

The submission of this technical report, still incomplete, is deception on a very wide scale, involving some very prominent Australian identities, all of whom should have known better than to go along with this level of deceit in the first place, let alone remain involved in this deception for another 20 or more yearsI first raised these two conflicting technical report issues with the TIO in August 1995, when the arbitrator’s secretary inadvertently provided them to me.

There is no mention, in any correspondence provided to the Canadian or Australian consultants, of Telstra’s threats or the carrying out those threats by not providing me with the FOI documents I requested because I assisted the AFP’s investigation into Telstra’s unauthorised interception of my telephone conversations. This decision seriously disadvantaged the whole preparation of my arbitration claim.

Why didn’t the arbitrator and TIO initiate an investigation into how an Australian citizen (me) could be so disadvantaged during a civil arbitration process, simply for carrying out his civil duty; assisting the AFP with their investigations into Telstra’s unauthorised interception of my telephone conversations?

The truth of what was done to me by the arbitrator and technical consultants is firmly embedded in these two conflicting reports. All that is needed is for one government official to start asking questions upon reading absentjustice.com so the truth surrounding these two conflicting reports will finally be revealed.

None of the important Ericsson and billing claim documents in those aforementioned 14 folders (see above) was assessed or defended by Telstra in Australia, or assessed by DMR Inc. in Canada. It is also important to note that I provided the government officials conducting those three separate investigations documentation confirming that NONE of my Ericsson and billing fault claim material was ever assessed under the agreed (arbitration agreement).

The Deception Continues

Before reading the following Ericsson segment below, please consider: is Telstra, via the government, protecting the international telecommunication company Ericsson at the expense of the COT cases? We exposed, during our government-endorsed arbitrations, that Telstra was knowingly using faulty equipment in its exchanges to the detriment of Australian business operators, who were losing millions of dollars from lost revenue due to incoming business calls not reaching their businesses (see Misleading Deceptive Conduct File No 4-D and 4-E).

The then government-owned Telstra knowingly continued to use Ericsson equipment in its Australian telephone exchanges during the COT arbitrations, despite British Telecom and other telecommunication companies in Europe recalling that same equipment. When evidence of this was provided to Senator Alston in September 1995 (after my arbitration finished without my telephone faults being fixed), he exploded: how dare Telstra treat the parliament and its citizens with such contempt. Senator Alston had first raised this equipment issue on my behalf on 25 February 1994 in the Senate. With this new evidence on hand, Senator Alston, in front of the Hon David Hawker MP (my then Federal Member of Parliament) and numerous other witnesses, asked me to continue assisting his office to bring this faulty Ericsson equipment issue to the attention of the government.

In 1994 and 1995, George Close and Associates (the official COT cases’ arbitration technical consultants) alerted the arbitrator Dr Gordon Hughes that Telstra’s arbitration defence engineers were also using known-faulty Ericsson telephone-testing equipment, even though Senator Alston and others were advised it was not compatible with rural unmanned roadside switching exchanges, like the Cape Bridgewater RCM telephone system my business was connected to. So, further to the exchange equipment being defective, the Ericsson telephone-testing equipment, used by Telstra during the arbitrations, was also faulty.

It is clear, from the various exhibits on Absentjustice.com, that numerous governments over the past 25 years have ignored most of the COT Cases, as An injustice to the remaining 16 Australian citizens shows, in order to protect Ericsson, a multinational telecommunications company whose faulty testing equipment the then government-owned Telstra corporation used in its arbitration defence against the COT cases.

One of the many interesting questions so far unanswered relates to 2 February 1995, during the COT arbitrations, when the government communications regulator (AUSTEL), formally and deliberately misinformed the Hon Michael Lee MP by telling him that all the tests carried out until then in relation to the first six of the COT arbitrations, had met all of the required government standards even though, ten weeks earlier, on 15 December 1994, AUSTEL had already been formally warned by a prominent, independent, technical expert stating the testing infromation (which had been collected from the Ericsson SVT testing process) should NOT have been used in the COT arbitrations (see pages 10 and 13 of the Michael Rumsewicz PhD report provided to the government communications regulator that:

“Telecom Australia, as part of document G.001, applies a standard technique based on hypothesis testing. Hypothesis testing is used to determine whether there is sufficient evidence to reject one hypothesis (known as null hypothesis) in favour of another (known as the alternative hypothesis). If insufficient evidence exists to reject the null hypothesis, the null hypothesis is accepted. It is critical to note this is not the same as saying that the null hypothesis has been verified.”

…and on page 13 he reports:

“We believe that, given the stated purpose of the Service Verification Tests supplied in the Telecom Australia Customer Fault Management Procedures document (000 841) and that of the AUSTEL COT cases report, the statistical test being applied to the collected data is inappropriate. We believe the alternative test described above is more suitable and, in addition, promotes customer confidence in the test procedure and analysis. …

“We believe that the analysis of collected data should be expanded to include an examination of call failures broken down by originating exchange, time of day and type of failure. In the event that correlations in the failures are found, further investigations, as appropriate, should be undertaken.”

In my own case, the government was also informed that Telstra’s arbitration defence received advice from AUSTEL, on 11 October and 16 November 1994, that the Service Verification Tests (SVT) conducted at my business was grossly deficient. AUSTEL demanded Telstra advise what it intended doing about this deficiency see Front Page Part One File/No 24-A to 24-B.

The failed SVT tests had been generated (trunked) through the same faulty Ericsson testing equipment using the PTARS 055 267211 service line.

I reiterate, No retesting of my business ever took place after Telstra was warned of their SVT deficiencies.

Collusion between AUSTEL and Telstra (who after all were the defendants in my arbitration) continued throughout this process i.e., particularly Absent Justice Part 3/Chapter Thirteen and Fourteen).

During the 1997 and 1999 Senate FOI investigations, the five litmus COT cases that had their FOI document issues assessed by the Senate received enough Ericsson fault documentation to enable them to secure a reasonable compensation payout. In April 1999, the Minister for Communications Senator Richard Alston, his Chief of Staff the Hon Paul Fletcher and others halted the investigation and the faulty Ericsson equipment documentation was withheld from the remaining 16 COT cases, who were still waiting for these details to prove their telephone and exchange problems were ongoing issues affecting their businesses.

Both the NEAT testing equipment used by Telstra and BCI at the Cape Bridgewater unmanned RCM switching station parented off of the Portland AXE Ericsson telephone exchange between the 4 and 9 November 1993 and on the 29 September 1994 the day Telstra tried to run their arbitration Service Tess (SVT tests) but had to abandon the process was Ericsson made equipment. This Ericsson NEAT testing equipment was also not compatible when the covert phone interception equipment that the Australian Federal Police investigations found had been connected to my service lines over an extended period.

There are further issues surrounding the TIO’s answers to similar Questions on Notice asked by the Senate committee. The TIO’s official response confirms that Ericsson purchased the arbitration main technical consultancy firm, Lane Telecommunications, during the COT arbitrations. All the technical information that I supplied to Lane Telecommunications during my arbitration, confirming the AXE Portland and Cape Bridgewater lockup problems were not just a local problem but a national and international problem, affecting hundreds of exchanges all over the world, was acquired by Ericsson.

At least three other COT claimants also had businesses connected to Ericsson AXE exchanges and their claim material, too, was on Lane’s computer data files when the company was sold.

Australia must be the only country in the Western world that allows a witness (Lane Telecommunications was a witness to what the COT claimants had uncovered) to be purchased during a major litigation process, particularly when even the administrator advised the Senate committee of this, on 26 September 1997 (see Senate Evidence File No/61).

I believe the Australian government should answer the following questions: How long was Lane Telecommunications in contact with Ericsson, the major supplier of telecommunication equipment to Telstra, before Ericsson purchased Lanes? Is there a link between Lanes ignoring my Ericsson AXE claim documents and the purchase of Lanes by Ericsson during the COT arbitration process?

To have been literally forced into 12 separate investigations over two decades, because I sought a reliable phone service in order to operate my telephone-dependent business, has been soul searching, to say the least. Telstra used outside lawyers as well as in-house lawyers during the arbitration process to convince the arbitrator that the very problems he was investigating were only historic complaints, rather than the ongoing complaints first registered with Telstra six-plus years previously. This is unconscionable conduct of the worse possible kind. Telstra was still unable to fix these problems eight years later when the arbitration drew to a close – and yet the official government April 1994 AUSTEL COT Cases report arbitration agreement states that findings could not be brought down until Telstra’s Service Verification Testing of the COT Cases businesses had shown they were not experiencing any further network problems.

Worse, Telstra and its lawyers only achieved this result, because, as our story shows, the government communications regulator (then AUSTEL, now ACMA) allowed Telstra to address some of the most relevant arbitration claim documents in secret, without me or the arbitrator’s knowledge. This despicable act not only prevented the arbitrator from realising how bad these ongoing telephone problems were, but also disallowed me my legal right of reply under the arbitration agreement (rules). The government regulator also allowed Telstra’s submission of arbitration witness statements prepared by at least one Portland Telstra technician, despite my claim advisor (an ex-detective sergeant of police) proving to the arbitrator, during arbitration, that this particular witness statement was more than just fundamentally flawed: the author had perjured himself on at least two accounts. This is clearly criminal misconduct. And, yet, the government allowed this same witness statement to be used secretly in a process that should never have been allowed without the arbitrator and me present.

Mr Davey concurs, “It was less accurate than it should have been.”

And, as we now know, even Mr Davey’s statement that Telecom’s “exchanges had been given a clean bill of health”was incorrect as the BCI test calls were trunked through the Warrnambool exchange and not the Cape Bridgewater RCM exchange.

How many other BCI tests conducted at various other exchanges around Australia were fabricated in a similar manner to those shown in the BCI Cape Bridgewater report?

Even though arbitration documentation shows both I, advised the arbitrator that I was still registering complaints of ongoing phone and facsimile problems throughout my arbitration, he brought down his findings in favour of Telstra BCI addressing only old anecdotal phone faults that were affecting my business prior to the BCI report which the Ericsson fault ridden testing equipment had falsely given my business the green light.

The further confirms this fact, it is noted in the arbitrator official 11 may 1995 award at point 3.5 that:

“Telecom commissioned Bell Canada International (“BCI”) to audit its testing a fault finding capabilities as a result of problems reported by a number of commercial telephone customers, including the COT Cases. Telecom noted at the time that it had been unable to find a widespread network problem or individual problems which could account for the nature and extent of these reported faults.”

“In summarising its findings, BCI concluded that the tests revealed a grade of service being delivered by Telecom to its customers which met global network performance standards. There was no evidence of any network dysfunction that could create the variety and magnitude of troubles reported by the COT Cases.”  

This seems to indicate that before Telstra submitted the Cape Bridgewater BCI report to arbitration they already knew that it was fabricated and they also knew it would put an end to any chance of a proper investigation into my claims of ongoing telephone problems, even though those problems and faults continued to ruin my business throughout the entire time that it took for my arbitration process to be completed and, as absentjustice.com shows, these unaddressed and ongoing telephone problems also continued for many years after the arbitrator accepted the falsified BCI report into evidence.

As discussed on our Absentjustice.com – Preface page the following six individual Senators all made official statements dated 6 March 1999 (See > Eggleston, Sen Alan – Bishop, Sen Mark – Boswell, Sen Ronald – Carr, Sen Kim – Schacht, Sen Chris and Alston, Sen Richard) which all formally record how those six senators believed that Telstra had ‘acted as a law unto themselves’ throughout all of the COT arbitrations. It is clear from Senator Ron Boswells statement that:

“…Telstra are still withholding the most important network documents. Mr Wynack [Commonwealth Ombudsman Office] has said, `There is plausible evidence that Ericsson would have documentation’ and that he believes much of the documentation specified by Mrs Garms would have been created. Further, going to the core of the dispute of bad service,” 

Senator Boswell believed along with John Wynack that Telstra was still concealing vital Ericsson exchange equipment from the COT cases.

This is the same Ericsson and Telstra logbook material that John Wynack Commonwealth Ombudsman Office had also tried to access from Telstra on my behalf between January 1994 and October 1997.

The Portland/Cape Bridgewater exchange logbook was concealed from me during my arbitration. It was not even provided to the arbitration process under confidentiality when I asked the arbitrator to access it under discovery and it was also not provided after Commonwealth Ombudsman director of investigations John Wynack demanded to know why it had not been supplied under FOI, in his 13 November 1994 letter to Telstra’s CEO Frank Blount. This shows Telstra concealed vital evidence during my arbitration. Had this document been provided, it would have proved my phone problems were still ongoing and it would have shown that the Ericsson telecommunications testing equipment being used by Telstra was grossly deficient.

AUSTEL acknowledges that Ericsson suggested the call loss could be at least 15% (see  Home-Page File No/64), Evidence File No/10-A to 10-f

Chapter Two

The second remedy pursued 

February 1994 to March 1995

The Australian Federal Police First investigated our COT cases claims that Telstra was intercepting our telephone conversations and fax-transmissions in February 1994 with no finding at the conclusion of their investigations in March 1995.

This official Senate Hansard record dated 20 September 1995, under the heading A MATTER OF PUBLIC INTEREST shows a very emotional senator discussing the injustices that we four COT claimants (i.e., Ann Garms, Maureen Gillan, Graham Schorer and I) suffered prior, during and after our so-called government-endorsed arbitration’s i.e;

“Then followed the Federal Police investigation into Telecom’s monitoring of COT case services. The Federal Police also found there was a prima facie case to institute proceedings against Telecom but the DPP [Director of Public Prosecutions], in a terse advice, recommended against proceeding. …

The attached AFP transcripts (see Australian Federal Police Investigation File No/1) dated 26 September 1994, taken during their second interview with me concerning Telstra’s unauthorised interception of my telephone conversations and my further claims to both the government and AFP that it appeared as though my faxes were also being hacked  I agreed to hand over to the AFP all fresh evidence received under FOI from Telstra that suggested I had been subjected to this unauthorised attack on my then civil liberties

Why didn’t the AFP advise the COT arbitrator their findings suggested arbitration-related documents were being hacked into before reaching their intended destination?

QUESTIONS ON NOTICE: On 15 February 1994, during my settlement /arbitration process, Senator Richard Alston (Shadow Minister for Communications) put a number of questions to the Senate Estimates Committee, On Notice, to be answered by Telstra. These are the questions most pertinent to the COT claimants (see Main Evidence File No/29 QUESTIONS ON NOTICE):

  1. Could you guarantee that no Parliamentarians who have had dealings with ‘COT’ members have had their phone conversations bugged or taped by Telstra?
  2. Who authorised this taping of ‘COT’ members’ phone conversations and how many and which Telstra employees were involved in either making the voice recordings, transcribing the recordings or analysing the tapes?
  3. On what basis is Telstra denying copies of tapes to those customers which it has admitted to taping?
  4. (A) How many customers has Telstra recorded as having had their phone conversations taped without knowledge or consent since 1990? (B) Of these, how many were customers who had compensation claims, including ex Telecom employees, against Telecom?
  5. Why did Telecom breach its own privacy guide-lines and how will it ensure that the revised guidelines will not be open to similar breaches or abuses?
  6. Could you explain why a large amount of documents accessed by customers under FOI have a large amount of information deleted, including the names of Telecom employees who wrote and received memos and documents?
  7. How many customers who have alleged that Telecom has tapped or bugged their phones without their consent or knowledge are the Australian Federal Police currently investigating?

The response to Question 5 (see Main Evidence File No/29) notes:

“…These matters are currently being investigated by the AFP and AUSTEL, and by Telecom;

It would be inappropriate for Telecom to make any further comments at this stage about possible breaches of the Telecommunications (Interception) Act while the matter is before the Federal Police. However, the Minister will be making a full statement in the near future on action taken to date to remedy apparent procedural problems within Telecom”.

Telstra’s claim (when referring to Question 5 On Notice) that it would be inappropriate for them to comment on these phone interception issues whilst the AFP were still investigating these matters is, in itself, the normal and expected comment that Telstra lawyers would have ensured that Telstra would make, under those circumstances.  No other form of interception investigation by any other authority should have taken place whilst the AFP was still investigating these breaches of privacy issues because that might well have undermined the AFP process.

Before I signed for my arbitration, on 21 April 1994, I used a similar response to questions from the Telecommunication Industry Ombudsman (the administrator of the arbitrations) when I advised the TIO that it would be unworkable for the Arbitrator to start my arbitration while the AFP had not yet concluded their investigation, particularly since the COT spokesperson and I were both seeking compensation from Telstra as part of our arbitration claims and in direct relation to Telstra’s breaches of the Interception Act.  I still clearly remember, as if it was yesterday, that the TIO stated that he would tactfully carry out his own investigations, along with the Arbitrator, and that their investigation would not impede the then-present AFP investigations.  As shown in our Front Page Part One, the arbitrator then allowed Telstra to cross-examine me regarding what the AFP had uncovered during my arbitration.

Telstra’s statement to the Senate Estimates Committee (at point 5) that: “It would be inappropriate for Telecom to make any further comments at this stage about possible breaches of the Telecommunications (Interception) Act while the matter is before the Federal Police”, clearly raises the question of why the COT Cases were forced into arbitration while the AFP were still investigating exactly the same breaches of privacy claims that were to also be investigated by the arbitrator because how can there be two investigations, by two separate bodies, into the same complaints, at the same time? What if the AFP and the arbitrator came up with conflicting findings? Which findings would the arbitrator then use to calculate and pay compensation?

Of course, it was an unworkable arbitration process while the AFP was involved.

What finally happened is that neither the AFP nor the arbitrator produced a record of any findings in relation to the (now proven) invasion of my privacy and it is now twenty-two years later, after no decision was made by either side, and it is the COT Cases who have been left to live with these undecided issues, regardless of the fact that it cost each of us hundreds of thousands of dollars just to take part in this arbitration facade.

January 1994: A Telstra arbitration liaison officer faxed this document to the TIO in relation to the appointment of an assessor for the Fast Track Settlement Proposal. The words across the top of this document, in the space that should record the sender’s business identification, are absent, and it records only the wording “Fax from” then followed by the fax number. The Scandrett & Associates Pty Ltd report discusses this “Fax from” issue (see Open Letter File No/12, and File No/13). The fact that a secondary fax machine installed in Telstra’s network during the arbitration process intercepted this document (see Hacking-Julian Assange File No 26) is another reason why this illegal interception of legal in-confidence documents should have been investigated during our arbitrations when these illegal acts were first discovered. Who were the faceless people who were soon termed the “forces at work”?

My Fast Track Settlement Proposal (FTSP) Accountant Selwyn Cohen sent me a fax on 21 January 1994 stating:

“I refer to your facsimile of 10.42am on 17th January 1994. The fax cover sheet refers to 7 pages being sent. Unfortunately, I only received 2 pages. Please forward the remaining 5 pages to enable me to begin the required work.” (See AFP Evidence File No 2-A to 2-C)

This was the forth time between the Christmas period of 1993, that Mr Cohen had problems sending or receiving documents from me.

31 January 1994: A copy of Alan’s phone/fax account 055 267230, when compared with these two Telstra CCAS document FOI number K01410 and K01411 confirm someone within Telstra has hand-written the names of the people I had spoken to and/or faxed. (see AFP Evidence File No/3)

Transcripts from my interview with the AFP on 26th September 1994 (see Australian Federal Police Investigation File No/1), confirm that the AFP were alarmed that Telstra had gathered private information about me including documenting on this CCAS data the names of the people who I had telephoned on a daily basis. This CCAS data information was supplied to Warwick Smith, and the Commonwealth Ombudsman’s office.

Stedman Cameron, Lawyers & Solicitors wrote to me on 2 February 1994, stating:

“We note that you did not receive two pages at all and only the number 2 from the third page and the signature from the last page of the facsimile sent to you at approximately 2.23pm on the 1st February, 1994. It was successfully sent approximately two hours later. (AFP Evidence File No 2-A to 2-C)

Telstra’s FOI document (M34363) dated 4 February 1994 was not made available to the arbitrator or me during my arbitration, even though Telstra’s FOI numbering system (M followed by a number) clearly indicates to Telstra and the TIO’s office that I was still reporting problems with my fax transmissions during my FTSP process (see Hacking-Julian Assange File No 24).

8 February 1994, The Hon Michael Lee Minister for Communications writes to the Minister for Justice, the Hon Duncan Kerr, MP: (note: this document is held in Government archives.)

“I am writing to inform you that members of the group known as the Casualties of Telecom (COT) have contacted my Office regarding the Australian Federal Police inquires into voice monitoring by Telstra of their telephones.

Both Mr Graham Schorer and Mr Alan Smith of COT have informed my Office that they have information on Telstra’s activities in relation to these matters”.

Specification for Customer Premises Line Monitoring Equipment. 1.0 noting:

“The original direction from AUSTEL in relation to Difficult Fault cases required the installation of equipment to monitor a customer’s line at the customer’s premises as well as the exchange end.  The equipment currently in operation in Telecom has some deficiencies in meeting this requirement.  The Coopers & Lybrand Report recommended the development or purchase of such equipment.  These recommendations are a fundamental foundation for a joint working party between AUSTEL and Telecom to develop the specifications for such equipment.  The specifications should be finalised by December 1994”.

AUSTEL writes to Telstra on 10 February 1994 stating:

“Yesterday we were called upon by officers of the Australian Federal Police in relation to the taping of the telephone services of COT Cases.

“Given the investigation now being conducted by that agency and the responsibilities imposed on AUSTEL by section 47 of the Telecommunications Act 1991, the nine tapes previously supplied by Telecom to AUSTEL were made available for the attention of the Commissioner of Police.” (See Illegal Interception File No/3)

From 10-15 February 1994, we lost any chance we may have had for a Senate inquiry into, what the COT members believed, the unethical way Telstra continued to treat us. By mid-February 1994, it appeared that not only was Telstra treating us with sheer contempt, but also they were doing this in full view of the Senate. The COT members began to believe that no single person or organisation, anywhere in Australia, had the courage to initiate a judicial inquiry into the way Telstra continued to thumb their noses at the government.

On 25 February 1994:  When this letter to Telstra’s Corporate Secretary from Fay Holthuyzen, Assistant to the Minister for Communications, Michael Lee, (see exhibit AS 772-a file AS-CAV 765-A to 789  is compared to the letter dated 3rd February 1994 Exhibit (AS 772-b) that I sent to the Minister’s office it is clear that I was concerned that my faxes were being illegally intercepted.

On the same day of 25 February 1994,  an internal Government Memo confirms that the then-Minister for Communications and the Arts had written to me to advise that the Australian Federal Police (AFP) would investigate my allegations of illegal phone/fax interception. (See exhibit AS 773 file AS-CAV 765-A to 789.

The letter dated 2 March 1994, from Telstra’s Corporate Solicitor, Ian Row, to Detective Superintendent Jeff Penrose (see Home Page Part-One File No/9-A to 9-C), makes it quite clear that Mr Penrose was profoundly misled and deceived about the faxing problems I was having to deal with, as discussed in this letter. Over the years, many people have compared the four exhibits numbered (File No/9-C) with the interception evidence revealed in Open Letter File No/12, and File No/13 and promptly concluded that, if Ian Row had not misled the AFP in relation to my faxing issues then the AFP may have been able to stop Telstra from intercepting the various relevant AFP arbitration documents in March 1994, before any damage had been done

On 3 March 1994: this article appeared in the Portland Observer newspaper (AS 773-b) noting:

Federal Police officers are investigating allegations of possible illegal activity on the part of Telecom Australia.

Officers from the Federal Police visited Portland last week and interviewed Cape Bridgewater Holiday Camp proprietor, Alan Smith, who is one of the four original members of COT (Casualties of Telecom).”

In February 1994, Detective Superintendent Jeff Penrose and Constable Melanie Cochrane of the AFP visited my business to discuss my concerns regarding the possibility my telephone conversations were intercepted and my faxes were not being received at the intended destination. During this visit, I spoke to Constable Cochrane regarding my concerns about the privacy issues connected to my singles club records, explaining I had provided the club members with a written assurance that I would not circulate their private information to anyone without first seeking their permission. For this reason, I was particularly concerned that it would not be fair to submit any of their private information into my Fast Track Settlement Proposal. Constable Cochrane commented that the TIO should contemplate suspending our settlement process until after the AFP finished their investigations into Telstra’s unauthorised interception of COT cases’ telephone conversations and in-confidence faxes.

The above issue surrounding the advice I received from Constable Melanie Cochrane of the AFP, is directly related to the serious matter that NONE of my single club bookings was ever valued as it should have as lost revenue to my business (see Australian Federal Police Investigations).

Senator Ron Boswell

As my arbitration progressed, I continued to assist the AFP, under the direction of Detective Superintendent Jeff Penrose, who explained that it was my public duty to assist the AFP because I had raised my complaints with the Federal Government.  Then, after Telstra’s arbitration liaison officer, Paul Rumble, began to threaten me, and then the arbitrator, Dr Hughes, ignored my request for an explanation of the reason behind those threats, and after those threats had finally become a reality, eventually the Hon Senator Ron Boswell took these matters to a Senate Committee Hearing on 29 November 1994, demanding that Telstra’s legal directorate explain why I should be threatened is such an appalling manner.  ERC&A/Page 180 (See Senate Evidence File No 31) provides more details regarding these threats, particularly:

“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?”

After receiving a hollow response from Telstra, which the senator, the AFP and I all knew was utterly false, the senator states:

“…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? (See Senate Evidence File No 31)

George Close, the technical consultant for the COT cases, visited my residence in Cape Bridgewater after I showed him Open Letter File No/12, File No/13, Front Page Part One File No/1, Front Page Part One File No/2-A to 2-E, Front Page Part One File No/4 and FrontPage Part One File No/5. We discussed the effect of these intercepted/hacked faxes on my overall submission to the arbitrator. Mr Close later sent me an email, on 5 August 2011, to assist me with breaking open this terrible denial of justice to the COT cases (see Front Page Part One File No/26).

“I recall a discussion with Senator Ron Boswell during the late 90’s.

“He had been shown fax’s [sic] which had clear indication of change in the headers, indicating interruption in transmission by a third party or parties.

“He questioned whether it was possible that faxes to and from senators could be interrupted, read or copies.

“My response in the affirmative brought about an expression of extreme anger. Stating that if it could be proven that it occurred the offender(s) would be jailed.

“If required I am prepared to re-state this on an affidavit.”

So far, no one in Australia has even been brought to account, let alone jailed, for the terrible invasion of the COT cases’ private and business lives.

As recently as March 2018, compensation was being paid out in Britain to the victims of this hacking scandal see www.guardian.com/media/2017/apr/25/mirror-group-settles-phone-hacking-claims-with-undisclosed-damages). All of those victims are entitled to compensation because their lives will never be the same again. The uneasy feeling whenever they pick up the phone as they wonder ‘Is someone else listening in?’, ‘Does someone else now know that I am going away for the weekend?’ Those memories for those British victims will never go away. I know.

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, 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:

  1. 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.
  2. 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?
  3. 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

How have many other Australian arbitration processes been subjected to this type of hacking?  Is this electronic eaves-dropping, this hacking into in-confidence documentation still happening today, during legitimate Australian arbitration’s?

Exhibit AS 492-A file AS-CAV 488-A to 494-E is a letter dated 26 August 1998 from George Close (my previous arbitration technical consultant to the new Telecommunications Industry Ombudsman. The fax header records: Fax from: — 61 74 453198 — 17:54 which was Mr Close’s residential fax number. Our Main Evidence File (see Open Letter File No/12, and File No/13), is the technical findings of both Scandrett & Associates and Peter Hancock showing that they both agree that, if the wording Fax from: followed by the numbers of the various COT faxes does not also include the correct business identification of the respective COT business then that indicates that those faxes were intercepted by a secondary fax machine and then redirected on to the intended destination.

This intercepted letter from Mr Close was copied to the offices of twelve different Government Ministers in Parliament House Canberra, which then raises a number of very important questions. Since we constantly hear about politicians questioning how information has been leaked from the party room, could this be because even Government offices in Parliament House are also routed through Telstra’s Fax Streaming centre? Even if the Fax Streaming arrangement has been officially organised by those Government offices, what could be happening to the documents that go through that system, without the Government’s knowledge? Could it be that privileged, in-confidence material ‘leaks’ out of Parliament house through Telstra in this same way? Could it be that Telstra’s Fax Streaming process means that, around the country, private is not so private at all?

PLEASE NOTE: although the George Close exhibits are of poor quality (having been copied a number of times) the poor quality does not take away the truth that these exhibits when viewed together still prove our claims.

Exhibit AS 492-B file AS-CAV 488-A to 494-E, which is a report faxed by Mr Close on 16 April 1998, has the correct identification across the top of the page see 61-74-453198 — GEORGE CLOSE & ASSOC — 17:34. In simple terms, those with access to Telstra’s network were able to use ‘keywords’ so only certain faxes leaving Mr Close’s residence were intercepted. I have used these two examples because they were both sent at approximately the same time in the afternoon, although months apart.

My fax identification on the first fax dated 8th May 2001, to Ms Kirsten Musgrove FOI Coordinator Australian Communications Authority (ACA) and two-page accompanying letter see exhibit AS 514 file AS-CAV 495 to 541  reads: 18-5-2001 – 11:33 – FROM CAPE BRIDGE HDAY CAMP to 0262195499 P.01, is my correct fax identification. The fax identification on the copy of my letter dated 4th July 2001, to Tony Shaw, Chairman of the ACA after it had been faxed to Mr Shaw’s Canberra office exhibit AS 515 file AS-CAV 495 to 541 on 5th July 2001, reads: Fax from: 055 267 230 – 05/07/01 – 04:41, is incorrect because the FROM CAPE BRIDGE HDAY CAMP identification has been removed;

My telephone/fax account exhibit AS 516 file AS-CAV 495 to 541 lists Exhibit (AS 515) as having transmitted successfully to Tony Shaw’s Canberra office, 0262195200 at 04:42am. The 4:44 minute transmission time shown on (AS 516), confirms (AS 515) were faxed from my private residence 03 55 267265.

Who within the Telstra Corporation has the authorisation to intercept faxes leaving my private residence (seven years after my arbitration)?Exhibits AS 494-C, AS 494-D and AS 494-E clearly show that Telstra technicians experienced major problems when they attempted to test my fax machine in conjunction with a fax machine installed at Graham Schorer’s (COT spokesperson’s) office. It is important to highlight Exhibit AS 494-A because according to the arbitration agreement, all of my claim documents should have automatically been returned to me within six weeks after the arbitrator had handed down his findings. When this didn’t happen, I arranged to collect the documents myself and then drove to Melbourne to pick them up. When I got back to Cape Bridgewater I discovered that more than half of my original faxed claim documents were missing from the arbitrators official arbitration received schedule documents.

A comparison of Telstra’s official schedule of documents received with the dated fax accounts and the letters and documents that I had been faxing to the arbitrator during the whole duration of my arbitration has been documented in Exhibit (AS 789). This Exhibit shows there were some forty-one sets of documents that although they were faxed to the arbitrator’s office those documents were not forwarded on to Telstra’s defence.
The hand-written note in the top left corner of AS 494-C states: “Stored in Fax Stream”, confirming that faxes intercepted via Telstra’s testing process are stored in Telstra’s Fax Stream centre so the document can be read, at any time, by anyone with access to that centre. In other words, this storage system shows other types of documents (not just test faxes) can be intercepted in the same way and then stored in Telstra’s fax Stream centre so the document can be read, at any time by anyone with access to that centre.

The Scandrett & Associates report (  )proves that numerous COT arbitration documents were definitely intercepted, including faxes travelling to and from Parliament House, the Commonwealth Ombudsman’s Office and various COT cases premises, including Alan’s business. (AS 494-C) also shows that intercepted faxes were, perhaps still are, stored wherever it is that Telstra’s fax stream documents were/are stored. This means, in turn, that Telstra, the defendant in the COT arbitrations, had free access to in-confidence documents that the claimants believed they were only sending to their accountants, lawyers and/or technical advisors that the claimants might not have wanted to be disclosed to the defendants at the time.

If the Senate Estimates Committee had been provided with this evidence COT faxes were stored in a facility for assessment purposes, together with the George Close/Fax Stream interception evidence (AS 492-A above), all of the COT arbitrations would have been considered null and void and Telstra would have been ordered to compensate all of the COT Cases for all of their costs, both up to that time and while a new arbitration process was being set up to ensure the COT Cases received their discovery documents. This screening of COT Cases arbitration documents by someone with access to Telstra’s network has also been discussed in the various chapter on absentjustice.com forty and whether the Australian Government should have investigated this privacy under Article 12 Universal Declaration of Human Rights when they were first raised during the various COT Cases arbitrations.

What is so appalling about these threats carried out by Telstra when they withheld all of my relevant requested 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 arbitration process. Dr Hughes and the government (who at the time fully owned Telstra) should have initiated an investigation into why an Australian citizen, who assisted the AFP in their investigations into unlawful interception of telephone conversations and the transmission of arbitration-related documents, was so severely disadvantaged during a civil arbitration Page Part One File No/14)

On 17 February 1996, 10 months after Dr Hughes prematurely brought down his findings, he wrote to Laurie James, President of the Institute of Arbitrators attaching a copy of John Rundell’s letter of 13 February 1996 (see Prologue/Chapter Two and Three). In this letter, Dr Hughes advised Laurie James:

“I consent to you disclosing this letter to Mr Smith, save that I do not consent to the disclosure of the attached correspondence from third parties.” (See Prologue Evidence File No/8-E)

Long before Mr Rundell and Dr Hughes wrote their letters in February 1996, (see also Chapter Three below) AUSTEL, the government communications regulator, officially advised Mr Pinnock (see Open letter File No/46-K, dated 3 October 1995) and Mr Rundell (see Open letter File No/45-A, dated 15 November 1995) my concerns were completely valid and that NONE of the billing claim documents I legitimately raised in my 1994/95 arbitration process was investigated (or even addressed) during my arbitration process. Still, however, Laurie James was deliberately misled and deceived, not just by the arbitrator but also by the official administrator of the same arbitration. Mr James was the very person who could have asked so many seriously disturbing questions about why my arbitration was not conducted according to the ambit of the arbitration procedures.=

Anyone reading my letter to Gareth Evans, dated 4 January 1996 (see Open Letter File No/49), will conclude I raised some very serious issues, which affected all the arbitrations still in progress.

Dr Hughes’ letter to Laurie James, under the heading “Letter to Senator Evans,” states:

“Mr Smith provided you a copy of a letter to Senator Gareth Evans dated 4 January 1996. I presume you require me to comment on those aspects of the letter which reflect upon my conduct as an arbitrator.

“The letter to Senator Evans is littered with inaccuracies. Some examples are:

  • contrary to Mr Smith’s assertion on page 3, his 24,000 (sic) documents were all viewed by me, Ferrier Hodgson Corporate Advisory, DMR Group Inc (Canada) and Lane Telecommunications Pty Ltd in accordance with the arbitration procedure.” (See Open letter File No/45-G and Open Letter File No/49)

Why did Dr Hughes deceive Mr James in relation to these 24,000 documents, which Dr Hughes and his team could not possibly have read and collated? Why did the arbitrator tell Mr James that all those documents were assessed?

The Canadian and Australian technical consultants’ 30 April 1995 reports, under the heading “Cape Bridgewater Documentation,” states “More than 4,000 pages of documentation have been presented by both parties and examined by us.” (See Arbitrator File Nos/29 and 30) These reports are covered more thoroughly in other pages.

And at point 2.2 on page 4, in Dr Hughes’ final award, dated 11 May 1995, he notes, In all, I have read in excess of 6,000 pages of documentary evidence submitted by the parties.” (See Prologue Evidence File No/9-A)

If either Mr James or Senator Evans were provided with the truth surrounding these 24,000 documents, my arbitration matters could have been completed in early 1996. So far, the arbitrator and the TIO office have managed to avoid being called to account for their devious and unethical conduct. Will they ever be held accountable?

Arbitrator File No/45 shows that on 30 March 1995 – 11 months before the arbitrator’s letters to Mr James – the arbitrator’s own resource unit wrote to the TIO outlining the progress of my arbitration. The timeline shows I advised them I received my discovery documents via the agreed-to FOI process after my claim was finalised and after Telstra had submitted their defence of that claim.

John Wynack, Director of Investigations for the Commonwealth Ombudsman’s Office, and Tony Morgan, a National Chief Adjuster for GAB Robins (Australia), are both fully aware that most of these 24,000 documents were not related to my Cape Bridgewater business in any way. Not only did they not have any identification or schedules to explain where they were sourced from, but it was quite clear that some belonged to the Fortitude Valley and Lutwyche telephone exchanges in Brisbane, more than 1,200 kilometres from the telephone exchange my business was connected to. Clearly, this delivery of so many useless documents was deliberately designed to cause me as much heartache as possible.

More than 16,800 of those FOI documents were meaningless without the schedule detailing their relevance; I had only 13 days to address Telstra’s defence, with documents I had no way of reading.

When I advised Warwick Smith, the Telecommunications Industry Ombudsman (and administrator to my arbitration) about this terrible situation, being left with only 13 days to decipher what documents belonged to me and which belonged to the two other COT cases, he said to contact Dr Hughes, the arbitrator. However, the arbitrator’s office informed me that Dr Hughes had taken his usual Christmas break, which meant the 13 days left for me to answer Telstra’s 12 December 1994 defence would be over by the time Dr Hughes returned from leave. Warwick Smith’s response to this was: do the best you can.

I reiterate, why have so many government agencies allowed to carry out these threats using a confidentiality clause written into my arbitration agreement? Threats (made against another party to the arbitration is unlawful). It is considered by the government one party cannot commit a crime and then cover-up that crime by using an existing gag clause (a condidentlity agreement) to hide that crime committed. 

Chapter Three

The third remedy pursued

1995-1996

PLEASE  NOTE: As some of the material in Chapter Two above is also important to the two investigations of 1995 and 1996 discussed below we have deliberately used them again for clarity.  

These two investigations were conducted separately from September 1995 by Senator Richard Alston’s office (Shadow Minister for Communications) and when he became Minister for communications in March 1996. The Institute of Arbitrators Australia began their investigation in January 1996.

on 20 September 1995, Senator Richard Alston was the then Shadow Minister for Communications when The Hon Senator Ron Boswell (National Party) made the following speech in the Senate concerning the four original COT Cases Ann Garms, Maureen Gillan, Graham Schorer and me:

Between September and November 1995, both the office of the Hon Senator Richard Alston and the Institute of Arbitrators Australia (IAA) agreed to separately investigate my claims raised against the arbitrator, Dr Gordon Hughes and the conduct of those who administered the first four COT cases.

We shall first introduce the Melbourne chapter of the IAA who showed particular concern that Dr Hughes was appointed by the Telecommunication Industry Ombudsman (TIO) to such a complex government-endorsed arbitration process when he was not even a graded arbitrator and who even, during my arbitration process, failed his arbitration exams to become a graded arbitrator of the IAA.

Perhaps even worse than this is the TIO had informed the government and four COT claimants that Frank Shelton, the then president of the Institute of Arbitrators Australia had drafted the arbitration agreement that was to be used for the first four arbitration. On 10 January 1994, Telstra’s lawyers Freehill Hollindale & Page faxed to the TIO office the agreement that was to be used for those four arbitrations. Mr Shelton then made cosmetic changes to that document and it was this document that we four COT Cases signed.  After Dr Hughes had deliberated on the first of the four cases [mine] he wrote to the TIO Warwick on 12 May 1995 (see Open Letter File No 55-A) damning this same Telstra drafted agreement as not a credible document to have used advising it needed to be revised for the remaining arbitrations.

Surely at this point of time, these two lawyers Dr Hughes and Warwick Smith must have considered the possibility that Telstra’s lawyers had originally drafted this agreement with the deficiencies in it so as to benefit their client Telstra? In other words, when Dr Hughes uncovered these deficiencies he should have abandoned the four arbitrations and contacted the government who had endorsed the process advising them of how bad this Telstra drafted agreement was. Nether reported to the government the possibility that this grossly deficient arbitration agreement had been drafted this way to benefit the defendants Telstra. In fact, it was Warwick Smith who put out a public media release praising the first arbitration process two hours after receiving this 12 May 1995 letter (see Open Letter File No 55-B)

This letter dated 13 February 1996, from Mr Rundell to Mr Pinnock was written in response to Mr Ryan’s statements to Senator Richard Alston on 6 December 1995 and to Mr Pinnock on 22 December 1995 (see also Chapter Two above).  In this letter, Mr Rundell states, “I did advise Mr Ryan the final report did not cover all material and working papers.” (See Open letter File No/45-E). But instead of Mr Pinnock providing this letter to me, within the statute of limitations period so I could use it in an appeal against Dr Hughes’ award, Mr Pinnock concealed it until 2002 – outside the statute of limitations for it to be used.

The final Ferrier Hodgson Corporate Advisory (FHCA) financial report referred to by Derek Ryan and John Rundell only provides statistics from the school camp bookings for valuing my losses. There is no reference at all to profits from the adult social club and singles club bookings, even though they made up 47 per cent of my business and were charged more than four times the school rate. I discovered, when FHCA eventually returned my claim documents, FHCA had a number of my singles club flyers, along with copies of various newspaper adverts regarding the adult weekends and copies of numerous testimonials from prospective adult patrons explaining their frustration at not being able to contact my venue by phone to make bookings.

On page seven of their final financial evaluation report, which both Telstra and I received, dated 3 May 1995, FHCA stated:

“An analysis of the clientele of CBHC [Cape Bridgewater Holiday Camp] shows that only 53% were in fact schools.” (See Open Letter File No 57-A to 57-D

There is an enormous difference between $30.82 for a two-night stay for school groups and $120.00 to $165.00 for a two-night stay for social club patrons. Knowingly downgrading my losses by a large percentage is verging on fraudulent criminal conduct.

The potential patron’s testimonials are also referred to in the AUSTEL [government communication regulator] report, of 3 March 1994 (See p33, point 85, AUSTEL’s Adverse Findings)

“As Mr Smith points out, the RVA message had the potential to severely damage his business. An important point in relation to the possible financial impact of the RVA message on the Cape Bridgewater Holiday Camp service is the camp’s dependence on group bookings. In June 1992 the camp tariffs ranged from $1500 to $6000 per week, so the loss of even one booking because of the RVA problem could mean a substantial financial loss.” 

I was also able to demonstrate to AUSTEL, when their representatives visited my venue, that singles club customers would regularly buy souvenirs before they left: purchasing printed Cape Bridgewater t-shirts, sweatshirts, postcards, headscarves and crafted driftwood plant arrangements. Schoolchildren didn’t have that sort of money and typically only bought postcards. FHCA ignored all the income I lost from my singles and social club bookings, i.e., the profit I made on the souvenirs as well as the $120 to $165 tariff per person for these customers.

In 1993, the Age newspaper reporter after visiting my venue for an overnight stay, after hearing about the type of outdoor back-to-nature activities I was providing for adult groups (if they could navigate their way through my very inadequate telephone system provided by Telstra). These activities included canoeing, horse riding, caving and bush-walking. A full-page report by the Age saying what a great escape for Victorians the Cape Bridgewater Holiday Camp was. However, Ferrier Hodgson Corporate Advisory and Dr Gordon Hughes decided their evaluation of the losses my business experienced should only be calculated on the school losses, and not the more lucrative up-market singles club and social club losses.

I attended Senator Alston’s Canberra Parliament House office in the company of The Hon David Hawker MP and four other witnesses in September 1995. After I told the senator that the arbitrator Dr Hughes and his technical units had, for reasons unknown, not investigated this serious ongoing lockup Ericsson AXE fault, which was still affecting my business, the senator asked me to keep his office informed of any other issues the arbitrator would not investigate and to supply his office with that evidence.

At this September 1995 meeting, I reminded Senator Richard, about the discussion he had during a Senate Estimates Committee hearing in February 1994, in demanded answers from both Telstra and AUSTEL concerning an FOI document showing local Telstra technicians secretly applauding me for raising the ongoing problems, which were getting worse as more and more people connected to the Ericsson AXE telephone system. I advised the senator that the author of that previous document he raised in the Senate, who applauded me in secret in this FOI document, swore – under oath in his arbitration witness statement – that Telstra had always provided me with reliable phone service. The Senator was furious that here I was four months past my arbitration and still my ongoing phone problems had not been investigated. One of the other documents I provided to the Hon Senator Alston on this day, and which AUSTEL found most alarming, confirmed Telstra had concealed, from the government, a major network billing problem of national importance that affected many thousands of Telstra customers, including me (see Open Letter File No/4 and File No/5).

A similar document, headed Telecom Secret (see Call For Justice Evidence File 8), shows all very clearly that Telstra knew how solid my case was. The document states:

“Legal position, Mr Smith’s service problems were network related and spanned a period of 3–4 years. Hence Telecom’s position of legal liability was covered by a number of different acts and regulations. … In my opinion Alan Smith’s case was not a good one to test Section 8 for any previous immunities – given his evidence and claims. I do not believe it would be in Telecom’s interest to have this case go to court.

“Overall, Mr Smith’s telephone service had suffered from poor grade of network performance over a period of several years; with some difficulty to detect exchange problems in the last 8 months.”

When the senator also heard that Ferrier Hodgson Corporate Advisory only used the school booking rates to value my claim, and discarded the more lucrative over-40s singles club and social club revenue, he stated that if he was back practising law he would challenge FHCA and those administering my arbitration. It was at the invitation of the Hon David Hawker MP that I travelled to Canberra (at my expense) to submit evidence that my arbitration had not been conducted under the agreed ambit of the arbitration procedures.

I also advised the Senator at this meeting that during my arbitration the TIO-appointed arbitration project resource unit FHCA and/or the arbitrator did not visit one singles club or convention centre to value the type of revenue these centres generated. They relied upon the Camping of Victoria (CAV) “school-needs survey” and Telstra’s financial experts using the IBIS Caravan Parks survey as part of their defence.

I reminded the Senator that two years previous to this visit in Canberra we had also visited his St Kilda Road Melbourne office with the COT Cases, in the company of Senator Ron Boswell he and Senator Boswell viewed our evidence against Telstra’s defective phone service to our businesses. Within a few months of this meeting, we provided both Senators with a copy of the original 1993 AUSTEL government-facilitated settlement agreement dated 5 October 1993, which clearly stated the assessor appointed to value the four COT cases’ business losses would visit similar type of businesses and value the revenue earnt by those businesses who had reliable phone service so the assessor could reach a fair assessment of the losses for each of the four COT cases businesses (see point 17 on page 4 Exhibit GS 110 file GS-CAV 89 to 154-A) By 23 November 1993, the government had agreed to commercial assess our claims if we stopped our campaign against Telstra.

Senator Alston had also raised these same interception issues in the senate in February 1994 (see Main Evidence File No/29 QUESTIONS ON NOTICE). Between February 1994 and January 1995, the Australian Federal Police was investigating Telstra records as to how rank and file Telstra employees were able to transcribe on memos the names and phone number of a number of female members and Dr Hughes was fully aware that, under instruction from the AFP, I was not to openly submit names, addresses or any financial details of the members of my singles club, unless that information was provided only to the arbitrator under confidentiality. Obviously, it worked in Telstra’s favour for the arbitrator to only assess the school camp losses, rather than the singles club and social club losses.

It was in late February 1994, when the AFP had told us that we were obliged to supply them with all of the Telstra FOI documents that we had received, and which suggested that any of our telephone conversations and faxes to/from the AFP might have been intercepted, explaining that this was because this whole matter was now ‘before the Government’.   We then told Robin Davey (Chairman of AUSTEL) exactly what the AFP had told us and asked Mr Davey if he believed we were legally bound to do as the AFP had requested, considering that these matters were to be assessed by the COT assessor. We were then ALL told that, as our matters were now part of an official Government-orchestrated investigation, which had been passed on to the AFP by AUSTEL under the direction of the relevant Minister, then we had no alternative but to supply the AFP with whatever related material we had uncovered because, after all, this investigation was for the good of the whole nation, as well as for any future investigations that might arise as a result of our co-operation.

Sometime later, while I was in Melbourne, in July 1994, as part of a discussion I had with John MacMahon, AUSTEL’s General Manager of Consumer Affairs, I reminded him of the two-day meeting the COT Cases had with AUSTEL on between 6 and 8 April 1994; I reminded him that it had taken place in AUSTEL’s headquarters in Melbourne, and I reminded him of Robin Davey’s instructions concerning our duty to provide our FOI documents to the AFP during the settlement process (which had now become an arbitration).  I also mentioned the threats I had received from Telstra after they had somehow found out that I was still continuing to help the AFP. Later, on 26 September 1994, AFP Detective Sergeant Jeff Penrose told me that the AFP had NOT informed Telstra that I was continuing to provide the AFP with assistance, which clearly means that the only way Telstra could have obtained this information was either from listening to my phone calls to or from the AFP or by intercepting the FOI documents I faxed to the AFP. Mr Penrose’s off-the-record response was ‘sharp’, to say the least, especially since he was in no way obliged to comment at all.

I truly believe that Mr MacMahon was definitely shocked when I told him about this off-the-record conversation with Mr Penrose just as I believe that was why Mr MacMahon reminded me that, regardless of Telstra’s threats, I was still obliged to help the AFP.  He also explained that, if those threats from Telstra continued, then I should raise them with the arbitrator because these matters were now part of my arbitration and so AUSTEL could not become involved. Mr MacMahon used words to the effect that, as AUSTEL had passed on this part of their own investigation into COT matters, and the AFP had instructed us COTs that we were legally obliged to assist the AFP and the Government (particularly since the Government had passed our matters to the AFP in the first place), then we had no choice but to continue to help the AFP wherever we could. We were told that, under these circumstances, the arbitrator could not penalise ANY of the COT claimants for raising these matters with the AFP, outside of the arbitration process.  Mr McMahon also maintained that Telstra’s threatening manner, and the wider ramifications for the overall submission of my claim, should also be raised with the TIO, Warwick Smith.

Most if not all of the issues surrounding why the COT Cases had concerns that the AFP investigations should not be running at the same time as the COT arbitration was known to both Senator Alston and Senator Boswell. No one would come to the COT Cases aid, Telstra and their threats were allowed to continue as our story so clearly shows.

So when it was revealed to Senator Alston by The Hon David Hawker that my singles club information had not been assessed by the arbitration process because I had been instructed by the AFP not to disclose and of the privacy issues associated with my single club members personal information the Senator was taken back (shocked) that this might be the real reason why Ferrier Hodgson and Dr Hughes had not provided a full formal complete financial report for assessment during my arbitration.

On the 6 December 1995, (after this September 1995 meeting), Derek Ryan, my arbitration accountant wrote The Hon Senator Richard Alston, then Shadow Minister for Communications, stating:

“Over the last 2 years I have acted as an independent accountant for Alan Smith and I prepared the independent assessment of his losses and damages which formed part of his submission to the arbitrator, Dr G Hughes.

“In response to accounting documents and evidence submitted to the arbitrator, he appointed Ferrier Hodgson Corporate Advisory (Vic) Pty Ltd.(‘FHCA’) to support him in assessing the losses and damages.

“The FHCA report was inaccurate and incomplete. I have since been advised by a staff member of FHCA that a large amount of information was excluded from their final report at the request of the arbitrator. This has left the report in an incomplete state and it is impossible for anyone to re-calculate or understand how the FHCA loss figures were determined. This effectively meant that it was impossible to challenge the assumptions, calculations and the time periods used in the FHCA report.” (See Open letter File No/45-E)

On the 22 December 1995, Derek Ryan wrote to TIO John Pinnock, noting:

“The Ferrier Hodgson Corporate Advisory (Vic) Pty Ltd (‘FHCA’) report was dated 3 May 1995 and I received a copy of the report on 5 May. After discussions with Alan Smith it was decided that I should reply to the report as soon as possible.

“I worked all day Saturday and Sunday with Alan Smith trying to interpret the FHCA report. After this work I considered that the report was incomplete as the calculations of the FHCA loss figures were not included in their report. …

“In 17 May I telephoned John Rundell and he stated that he was unable to discuss anything with me until the appeal period had expired. … He then stated that he understood my problems and that FHCA had excluded a large amount of information from their final report at the request of the arbitrator.” (See Open letter File No/45-E)

Mr Rundell has never refuted Derek Ryan’s statement in a letter he wrote to John Pinnock (the TIO), in relation to my arbitration financial losses, which noted that:  On 17 May I telephoned John Rundell and he stated that he was unable to discuss anything with me until the appeal period had expired”, even though that statement: “… until the appeal period had expired”, reveals the true calibre of Mr Rundell’s attitude, i.e. he recognised the advantages for Telstra if the COTs were forced to wait for the appeal period to elapse before they even began to expose the truth.

PLEASE NOTE: this is the same John Rundell who allowed David Reid (Lane Telecommunications) to assess my claim and then superimposed the DMR Inc Canada logo on the final arbitration technical report that Lane had provided the findings and NOT DMR (Canada). This was not made known even after Lane was purchased by Ericsson. The collusion and trickery continued to destroy any chance I had of a fair administered arbitration.

Back before the arbitration began

On 21 April 1994, on the day we signed our arbitration agreement (under duress), after being threatened by the TIO officials that, if we did not formally agree to exonerate the arbitration financial advisors, Ferrier Hodgson Corporate Advisory (FHCA) and DMR (Australia), from any liability in relation to their involvement in the arbitration process, then there would be no arbitration and we would, therefore, be left with only one alternative, the enormous costs involved in taking Telstra to court for not providing us with a decent telephone service, even though Telstra (as a government organization) had a legal responsibility to provide us all with a service comparable to our competitors.

As small businesses, none of us could afford to even think about entering into what was sure to be a drawn-out and expensive legal process with a government-owned corporation with a bottomless public purse available to fund their defence and so we were forced to agree to exonerate FHCA from all liability.  This meant, of course, that we could never sue FHCA for negligence in connection to our arbitrations. Then, when those arbitrations began, it was like being caught at the wrong end of a shooting range for the COTs because FHCA was also, secretly, appointed to decide which discovery documents the arbitrator would see and which would be concealed from assessment altogether.

A Secret Deal

Telstra’s Arbitration Liaison Officer Steve Black wrote to Warwick Smith the TIO on 11 July 1994 (see My Story Evidence File/16) stating:

“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”. 

The statement in Telstra’s letter if the resource unit forms the view that this information should be provided to the arbitrator confirms that both the TIO and Telstra were aware that the TIO-appointed resource unit had been assigned to vet most, if not all, the arbitration procedural documents en route to the arbitrator. If the resource unit decided a particular document was not relevant to the arbitration process, it would not be passed on to the arbitrator or other parties.

Was there a more sinister reason behind Telstra’s decision to withhold the more relevant documents from the claimants by channelling them through Ferrier Hodgson Corporate Advisory (FHCA, the Arbitration Resource Unit), particularly since FHCA later admitted, in writing, on 2 August 1996, to knowingly withholding some of the most relevant documents so they would not be investigated during the arbitration process, which would have certainly been of great assistance in helping to minimize Telstra’s liability?

In my case, some of the most important documents (which would actually have won my case if they had been supplied to me in time) were withheld until after Dr Gordon Hughes (the Arbitrator) had handed down his findings. This fact was known

During this September 1995, meeting I also explained that I could provide evidence to the senator that Telstra had knowingly perverted the course of justice by deliberately tampering with evidence during my arbitration (see Chapter One to Three in our Tampering With Evidence) page. Perhaps it should be noted here that Senator Alston had been a Barrister at the Victorian bar before becoming a Government Minister and so he then assured me that, since I had now officially provided him with information regarding how senior Telstra staff had condoned this unlawful behaviour; and since Telstra had carried out this unlawful behaviour against an Australian citizen while that person was involved in a Government-facilitated process with Telstra; and since this unlawful behaviour had occurred while Telstra was still entirely owned by the Government, then the Telecommunications Act and the Trade Practices Act would provide the Senator with the opportunity to officially question Telstra about the validity of my claims, on notice, through the Senate.

At the end of this meeting, David Kennedy who was assisting Senator Alston at this meeting asked me to continue to provide further evidence to his office (which I did) so as the senator was kept up to date with what had been truly a terrible outcome for me.

As stated above, in March 1996, the John Howard government won office and Senator Alston became the new minister for communications. Paul Fletcher, who was now also assisting Senator Alston, asked me to continue helping the senator with these telecommunication issues.

It will be apparent from the Introduction above and the following information (see Open Letter File No/41/Part-One and File No/41 Part-Two), that the wind changed and my valid claims were suppressed – and are still being suppressed, as of 2021.

In a letter I received from Mr Paul Fletcher dated 4 September 1996 noting:

“In addition, I have examined the material you sent me. On the basis of the information I have received, I do not believe that there is any action in relation to your case that would be appropriate for the Minister to take at this time. The Minister has no power to intervene in the conduct of the COT arbitrations. which are being administered by the Telecommunications Industry Ombudsman.”

As a result of this discussion with Senator Alston I then sent his office a copy of an eighty-eight-page report, I had compiled, together with various supporting Exhibit documents. This report detailed the way Telstra had broken the law by tampering with Government-owned equipment during my legal arbitration process, which was being conducted under the auspices of the Supreme Court of Victoria.  This was the report that Paul Fletcher eventually returned to me (see following link > Open Letter File No/41/Part-One and File No/41 Part-Two).

I also have conclusive evidence of how, years after Mr Fletcher had returned my June 1996 report, other bureaucrats in the Department of Communications Information Technology and the Arts (DCITA) began investigations into other areas of my claims and instead of the department investigating my claims they sent this material straight to Telstra to ask if my claims were valid, which is a bit like a police officer asking a thief caught stealing a car if he should be charged for that theft! Interestingly, Paul Fletcher had previously worked at that DCITA too.

I have raised these DCITA decisions in this Second Investigation segment because, since Senator Alston requested my report in the presence of David Hawker, surely they would then both be informed of the outcome of Paul Fletcher’s investigations into that report. I know for a fact that Mr Hawker did not receive any information about my report because he told me, on two separate occasions, that he had not received any follow-up information at all, which further indicates that Senator Alston was never advised of the significance of that report either.

Perhaps the real reason for my claims never being assessed on merit was because, in March 1996, the TIO, Warwick Smith (the administrator to my arbitration) became a Front Bench Minister in the John Howard Government. In simple terms, it became clear that no matter what proof I provided to Paul Fletcher while he was assisting Senator Richard Alston, during the same Howard Government (including the evidence contained in Open Letter File No/41/Part-One and File No/41/Part-Two), the establishment had decided the COT Cases had to be stopped, at all cost, from exposing exactly how unethical the process had been. Regardless of the damage, this cover-up caused to the claimants.

It is most important to note also during Senator Richard Alston’s investigation on 11 July 1996, when as a member of AUSTEL (now ACMA) the Deputy TIO wrote to the Senator 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 had 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.

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?

As shown above, by November 1995, the Institute of Arbitrators Australia had agreed to view why the arbitration process had not been conducted under the Commercial Arbitration Act of Victoria which was registrable as an order of the Victorian Supreme Court.

We need perhaps to jump forward some eighteen months so as the reader is fully aware that the Commercial Arbitration Act of Victoria (which the COT arbitrations were conducted under) provides that an award by the arbitrator is registrable as an order of the Victorian Supreme Court. To further support this fact on 26 September 1997, after most of the arbitrations were concluded, the second appointed administrator to the COT arbitrations, John Pinnock, officially advised the government (see pages 97 and 98  COMMONWEALTH OF AUSTRALIA – Parliament of Australia) that:

“However, under the rules of the fast-track arbitration procedure, the original CoT, or CoT four, claimants were actually entitled to discuss their respective proceedings and claims with each other. Finally, both of the arbitration procedures provided that where their rules were otherwise silent the proceedings were to be governed by the Commercial Arbitration Act of Victoria. Significantly, that provides that an award by the arbitrator is registrable as an order of the Victorian Supreme Court, and the act confers basically what is a limited right of appeal against any award by the arbitrator”.

However, I never learned that an award by the arbitrator is registrable as an order of the Victorian Supreme Court, and the act confers basically what is a limited right of appeal against any award by the arbitrator, until I met with the Institute of Arbitrators Australia (IAA) in November 1995, six months after my arbitration had been prematurely brought to a conclusion. When the Institute learned that the arbitrator Dr Gordon Hughes had not been appointed by the Institute as well as Dr Hughes not been a graded arbitrator it was suggested by the Chapter of the Melbourne (IAA) that I should write to Laurie James, who was then the President of the Institute of Arbitrators Australia and ask for an investigation into our arbitration processes.

Back then though, in November 1995, I was not aware that both Ann Garms and Maureen Gillan would eventually be given more than thirteen months longer to submit THEIR claims, than the much shorter time that Dr Hughes allowed ME, in which to submit my claim.  Neither did I know that one of the other COT Cases, Graham Schorer, had been a client of Dr Hughes over a number of years, before joining the other COTs in our arbitrations and I did not know that Graham would actually be given more than three years longer to lodge his claim than the arbitrator allowed me, and more than two years longer than the arbitrator allowed Ann Garms and Maureen Gillan (see Conflict of Interest).  This issue clearly upset the Institute in Melbourne because it was clear to them, from the paperwork I provided about our arbitrations, that each of us first four COT claimants had signed a copy of the same agreement and that agreement only allowed us one month each in which to submit our claims and one more month to respond to Telstra’s defence of that claim. It was at this point that I was warned that Dr Hughes was not a graded arbitrator of the Institute.

The collusion and deception that was exposed to the Institute did not finish there, however, and neither did that collusion and deception stop, even after I contacted Laurie James, as the following chapters show.

Between 18 October 1995 and 4 October 1997, with the assistance of Mr John Wynack, director of investigations on behalf of the Commonwealth Ombudsman, I sought, under FOI, from Telstra a copy of their arbitration file on my matters. Home Page File No/82 confirms Mr Wynack did not believe Telstra’s claim that it destroyed the file. I also tried to access a copy of the same arbitration file held by the TIO office, which, as the administrator of my arbitration – under the law – had to retain a copy for at least six years: until 2002. Mr Pinnock’s letter, of 10 January 1997, in response to my request, states:

“I refer to your letter of 31 December 1996 in which you seek to access to [sic] various correspondence held by the TIO concerning the Fast Track Arbitration Procedure. …

“I do not propose to provide you with copies of any documents held by this office. (See Open Letter File No 57-C)

On 17 February 1996 Dr Hughes wrote to Laurie James, President of the Institute of Arbitrators (see above) attaching a copy of John Rundell’s letter of 13 February 1996 to the TIO). In this letter, Dr Hughes advised Laurie James:

“I consent to you disclosing this letter to Mr Smith, save that I do not consent to the disclosure of the attached correspondence from third parties.” (See Prologue Evidence File No/8-E)

Long before Mr Rundell and Dr Hughes wrote their letters in February 1996, AUSTEL, the government communications regulator, officially advised Mr Pinnock (see Open letter File No/46-K, dated 3 October 1995) and Mr Rundell (see Open letter File No/45-A, dated 15 November 1995) my concerns were completely valid and that NONE of the billing claim documents I legitimately raised in my 1994/95 arbitration process was investigated (or even addressed) during my arbitration process. Still, however, Laurie James was deliberately misled and deceived, not just by the arbitrator but also by the official administrator of the same arbitration. Mr James was the very person who could have asked so many seriously disturbing questions about why my arbitration was not conducted according to the ambit of the arbitration procedures.

Anyone reading my letter to Gareth Evans, dated 4 January 1996 (see Open Letter File No/49), will conclude I raised some very serious issues, which affected all the arbitrations still in progress.

Dr Hughes’ letter to Laurie James, under the heading “Letter to Senator Evans,” states:

“Mr Smith provided you a copy of a letter to Senator Gareth Evans dated 4 January 1996. I presume you require me to comment on those aspects of the letter which reflect upon my conduct as an arbitrator.

“The letter to Senator Evans is littered with inaccuracies. Some examples are:

  • contrary to Mr Smith’s assertion on page 3, his 24,000 (sic) documents were all viewed by me, Ferrier Hodgson Corporate Advisory, DMR Group Inc (Canada) and Lane Telecommunications Pty Ltd in accordance with the arbitration procedure.”(See Open letter File No/45-G and Open Letter File No/49)

Why did Dr Hughes deceive Mr James in relation to these 24,000 documents, which Dr Hughes and his team could not possibly have read and collated? Why did the arbitrator tell Mr James that all those documents were assessed?

The Canadian and Australian technical consultants’ 30 April 1995 reports, under the heading “Cape Bridgewater Documentation,” states “More than 4,000 pages of documentation have been presented by both parties and examined by us.” (See Arbitrator File Nos/29 and 30) These reports are covered more thoroughly in other pages.

And at point 2.2 on page 4, in Dr Hughes’ final award, dated 11 May 1995, he notes, “In all, I have read in excess of 6,000 pages of documentary evidence submitted by the parties.” (See Prologue Evidence File No/9-A)

If either Mr James or Senator Evans were provided with the truth surrounding these 24,000 documents, my arbitration matters could have been completed in early 1996. So far, the arbitrator and the TIO office have managed to avoid being called to account for their devious and unethical conduct. Will they ever be held accountable?

Arbitrator File No/45 shows that on 30 March 1995 – 11 months before the arbitrator’s letters to Mr James – the arbitrator’s own resource unit wrote to the TIO outlining the progress of my arbitration. The timeline shows I advised them I received my discovery documents via the agreed-to FOI process after my claim was finalised and after Telstra had submitted their defence of that claim.

John Wynack, Director of Investigations for the Commonwealth Ombudsman’s Office, and Tony Morgan, a National Chief Adjuster for GAB Robins (Australia), are both fully aware that most of these 24,000 documents were not related to my Cape Bridgewater business in any way. Not only did they not have any identification or schedules to explain where they were sourced from, but it was quite clear that some belonged to the Fortitude Valley and Lutwyche telephone exchanges in Brisbane, more than 1,200 kilometres from the telephone exchange my business was connected to. Clearly, this delivery of so many useless documents was deliberately designed to cause me as much heartache as possible.

More than 16,800 of those FOI documents were meaningless without the schedule detailing their relevance; I had only 13 days to address Telstra’s defence, with documents I had no way of reading.

When I advised Warwick Smith, the Telecommunications Industry Ombudsman (and administrator to my arbitration) about this terrible situation, being left with only 13 days to decipher what documents belonged to me and which belonged to the two other COT cases, he said to contact Dr Hughes, the arbitrator. However, the arbitrator’s office informed me that Dr Hughes had taken his usual Christmas break, which meant the 13 days left for me to answer Telstra’s 12 December 1994 defence would be over by the time Dr Hughes returned from leave. Warwick Smith’s response to this was: do the best you can.

There was also no mention in Dr Hughes’ letter to Laurie James concerning the documents provided by Telstra were not intended for me or that Telstra had continued to withhold the main arbitration requested document namely the Portland/Cape Bridgewater telephone exchange logbook, which was requested under FOI and through the process of discovery. Dr Hughes was aware Telstra had not released the exchange logbook, which had the working notes of all my telephone complaints and those of other local Telstra subscribers for the period of my claim. The veracity of logbooks is irrefutable, yet Dr Hughes would not request the Cape Bridgewater exchange logbook for me. The Commonwealth Ombudsman’s office also requested this logbook to be supplied but was unable to obtain it. (See Home Page File No 10 -A to 10-B)

My facsimiles and subsequent follow-up telephone conversations, on 4 and 5 May, advised Dr Hughes of the nightmare these late 24,000 FOI documents caused for me and I asked for an investigation into why so many FOI documents, without proper FOI schedules, had been dumped on me too late to submit into arbitration, actually belonged to Ann Garms and Maureen Gillan and therefore were useless.

On 5 May 1995, Dr Hughes wrote,

I refer to your telephone message of 4 May and your facsimiles of 4 and 5 May 1995 and advise I do not consider grounds exist for the introduction of new evidence or the convening of a hearing at this stage.” He also reiterated his previous instructions: “any comments regarding the factual content of the Resource Unit reports must be received … by 5:00 pm on Tuesday 9 May 1995”  (See Arbitrator False Evidence File 1).

Dr Hughes cared little about the justice he denied me by not allowing me to submit those of the 24,000 FOI documents I could decipher. He also refused to convene a hearing to determine why Telstra’s threats – to withhold all future relevant FOI documents from me – came to fruition. Two of the questions I raised in my telephone messages of 4 May 1995 and facsimiles of 4 and 5 May 1995, was why had the arbitration technical report not been signed off and why had it only assessed 11% of my claim documents. It is clear from this letter and Dr Hughes 11 May 1995 award that he ignored both those questions.

On 27 February 1996, John Pinnock wrote to Laurie James, attacking my credibility. The TIO deliberately misinformed Mr James that I had telephoned the arbitrator’s wife at 2 am one morning:

“Mr Smith has admitted to me in writing that last year he rang Dr Hugheshome phone number (apparently in the middle of the night, at approximately 2.00 am) and spoke to Dr Hughes’ wife, impersonating a member of the Resource Unit.” (See Arbitrator File No /49)

Who advised the TIO that I telephoned at approximately 2 am? The telephone account for the evening in question (also in Arbitrator File No /49) confirms I called at 8.02 pm. It is bad enough to see the lies told regarding the actual time that I made this telephone call, but it is perhaps even worse to discover that my reason for making that call was concealed from Mr James. I phoned the arbitrator to alert him I had, that day – 28 November 1995 – received vital arbitration documents that I should have received during my arbitration and these documents definitively proved Telstra’s TF200 EXICOM arbitration defence report was manufactured to pervert the course of justice.

It was exciting to read that Telstra staff proved beer could not have stayed wet and sticky for 14 days – the time between the TF200 EXICOM leaving my premises and arriving at their laboratory. It was already evening but, in the heat of the moment, I rang the arbitrator’s home number. His wife answered and told me he was overseas and not due home for some days.

I was caught on the back foot; in my excitement, I had not considered the arbitrator would not answer the phone. I assumed the arbitrator had discussed the Parliament House rumours, concerning his use of a non-credible agreement, with his wife. I thought if she knew who was calling, she might be afraid I was ringing to accuse the arbitrator. Impulsively, I gave her another name: one I knew the arbitrator was familiar with – that of the FHCA project manager.

Later, I informed the TIO about my exciting find and that I tried to contact the arbitrator to pass on the news. I also explained I gave the arbitrator’s wife the FHCA project manager’s name, instead of my own, to prevent her from being alarmed. I asked him what he would do with this proof that Telstra had fabricated the beer in the phone story. The TIO responded flatly that my arbitration had run its course and he did not intend to involve his office in any further investigation. He said I should go to the Supreme Court of Victoria if I wished to take it further.

If I did write to the TIO, as he alleges in his letter to Laurie James, why didn’t the TIO produce my letter? The reason is, of course, that I never wrote any such letter. Just as deceitful as claiming I wrote such a letter, is the fact that the TIO’s letter to Laurie James was copied to the arbitrator.

Surely the arbitrator would have discussed my telephone call with his wife and been told by her that I had telephoned at 8.02 pm and I was, at all times, courteous and respectful.

Did Dr Hughes and John Pinnock allow Dr Hughes’ wife’s name to be used to stop Mr James from uncovering Dr Hughes letter of 12 May 1995? Or was it to stop Mr James from investigating Telstra’s conjured TF200 report.

There is more to our story and the way in which Dr. Hughes allowed his good wife’s name to be used to stop an investigation into the now proven conjured ‘sticky beer’ substance TF200 Arbitration Report.

I doubt, even now 20-plus years after the event, Dr Hughes’ wife knows he used her to stop a transparent investigation by Laurie James, (then president of the Institute of Arbitrators Australia) into why her husband and John Pinnock (the second TIO) would not investigate the fresh TF200 EXICOM evidence that arrived on 28 November 1995, confirming that 11 months previously Telstra fraudulently manufactured their TF200 EXICOM arbitration report. I am sure Mrs Hughes would be alarmed that John Pinnock deceived Mr James by advising I wrote to him stating I telephoned Dr Hughes at 2.00 am when no such letter ever existed. John Pinnock’s letter, dated 27 February 1996, was also copied to her husband. Why did Dr Hughes allow such a letter to be sent when he must have known I did not telephone his wife at 2.00 am at all: I telephoned at 8:02 pm to tell Dr Hughes what this fresh evidence finally revealed (see Tampering With Evidence).

This tampering with evidence after it left my premises raises a most important question: why has the Australian government not advised the Telstra board that Telstra have both a legal and moral obligation to rectify these as a matter of public interest because this tampering with evidence, during a litigation process, was committed when the Australian Government and its people owned the Telstra Corporation.

After Dr Hughes letter of 17 February to Laurie James and John Pinnock’s subsequent letter, of 27 to Mr James, the Institute abandoned their investigations into my complaint against Dr Hughes.

Because the poor timeframes in the arbitration agreement did not allow for the late submission of information, such as my singles club material, Dr Hughes granted the remaining three COT cases, Ann Garms, Maureen Gillan and Graham Schorer, more than 13 months longer than he allowed me, in which to submit late-received material. Why didn’t Dr Hughes advise Laurie James of this? All four of us signed the same arbitration agreement in April 1994.

Australian Federal Police Investigations and Chapters One to Five in our Prologue page provide more detail regarding the privacy issues regarding the names, addresses and phone numbers of my over-40s singles club members. I was officially advised by the AFP to NOT provide the arbitrator and Telstra with these details while Telstra was still being investigated for the unauthorised interception of my telephone conversations. These interceptions included incidences where female members’ personal data was recorded: Telstra could have only obtained this information by intercepting my telephone conversations or faxes. Telstra’s admission to the AFP about this unauthorised monitoring is recorded in our Australian Federal Police Investigations page.

Chapter Four

The fourth remedy pursued

In September 1997. the Senate working part investigation began into five of the twenty-one COT Cases (see also An injustice to the remaining 16 Australian citizens)

As the trailblazers, the Australian Government, Government Communications Regulator (AUSTEL) and the Telecommunications Industry Ombudsman advised the four original Casualties of Telstra:  Graham Schorer, (COT Spokesperson), Ann Garms, Maureen Gillan and Alan Smith (myself) would, if we did push for a full Senate Estimates hearing into our claims, receive via AUSTEL a facilitated non-legalistic Fast Track Settlement Proposal.  Upon receiving this advice, we four COT cases collectively agreed not to continue this pursuit through the Senate (believing we would finally be treated in a fair and honest manner) – unaware that once we relented this push, we were destined to be crucified by the very government we were about to put our trust in!

An important note to the reader 

When I first started to put absentjustice.com together, back in January 2015, the main aim was to explain the story of the Casualties of Telstra (COT) group as clearly as possible, both from my own perspective and from the perspective of the other COT members too. We decided that it was also important for the public to know that none of us are looking for vengeance, even though we have all been damaged by our experiences with Telstra, even though we may have lost our businesses, even though the telephone problems that sent us to arbitration in the first place are, mostly, still occurring. As the website name indicates, we are just looking for justice. As part of our plan, and because we are all considerate people, we, therefore, decided to blank out (sometimes called ‘masking’) the names of those who, as part of our arbitration process with Telstra, had been prepared to be involved in numerous crimes that were committed against us. From the very beginning of our search for the justice that our arbitrations didn’t achieve we have left the door open for those people to explain their contributions to our dilemma, but not one of them has yet come forward; not one of them has even attempted to explain why they did what they did.

Telstra’s Corporate Secretary wrote to AUSTEL’s Chairman to him on 18 November 1993 (FOI document number R10799), pointing out that:

“only the COT four are to be commercially assessed by an assessor. For the sake of convenience I have enclosed an amended copy of the Fast Track Proposal which includes all amendments.

To facilitate its acceptance by all or any of the COT members I have signed it on behalf of the company. Please note that the offer of settlement by this means is open for acceptance until 5 pm Tuesday 23 November 1993 at which time it will lapse and be replaced by the arbitration process we expect to apply to all carriers following the Regulator’s  recommendations flowing from this and other reviews.”

On the 23 November 1993 Graham Schorer (COT Spokesperson) Ann Garms, Maureen Gillan and I signed the FTSP, trusting in the Regulator’s verbal assurances that all of the ongoing telephone problems currently being investigated by AUSTEL and Telstra would be rectified/fixed and addressed by the assessor before his findings are handed down. The four signed FTSP agreements were forwarded to Telstra’s corporate secretary. I included a letter with his agreement, clearly putting my expectations of the process:

“In signing and returning this proposal to you I am relying on the assurances of …, Chairman of the Regulator, and …, General Manager of the Regulator’s Consumer Affairs Department, that this is a fair document. I was disappointed that … was unwilling to put his assurances in writing, but am nevertheless prepared to accept what he said.

I would not sign this agreement if I thought it prevented me from continuing my efforts to have a satisfactory service for my business. It is a clear understanding that nothing in this agreement prevents me from continuing to seek a satisfactory telephone service.”

Before I take you on a journey, which may be unbelievable to many Australian and offshore readers, who believe Australia is governed by the rule of law, I suggest you view the statements, directly below, made by some of Australia’s most well-respected politicians.

On 7 April 1994, AUSTEL’s Chairman Robin Davey in the company of John MacMahon General Manager of Consumer Affairs personally interviewed me in AUSTEL’s Queens Road headquarters in Melbourne and informed me AUSTEL had investigated my claims against Telstra’s deficient supply of my telephone service and found that my claims had been validated and that the pending Arbitrator Dr Gordon Hughes would be officially notified as AUSTEL’s findings would be clearly defined in their AUSTEL COT Cases Report.

Both commented on the fact their belief was that I would need professional technical expertise to advise the arbitration process of these discovered facts. AUSTEL had suggested Telstra should commit to installing a telecommunications tower at my business premises during the period Telstra had agreed to fix my ongoing telephone problems at my Cape Bridgewater business. The Service Verification Testing process that would be conducted at my business during my arbitration a recommendation agreed to by Telstra because AUSTEL had allowed Telstra to limit their Bell Canada testing (six months previously) at Cape Bridgewater.

The AUSTEL findings which the arbitration resource process and I did not receive during my arbitration was not provided by ACMA until November 2007, thirteen years after my arbitration had been concluded. The watered-down version of AUSTEL’s COT Cases findings although they are damning enough they do not mention AUSTEL believed Telstra would be able to locate the problems still being experienced at my business at the time of my arbitration (see point 211 and 212 in the withheld AUSTEL’s Adverse Findings).

From 10 January 1994 through to October 1997, Ms Philipa Smith, Commonwealth Ombudsman and her Director of Investigations John Wynack tried in vain to access on behalf of most if not all of the COT Cases requested FOI documents they were told they would receive if they went into arbitration. Most of these relevant documents (see also An injustice to the remaining 16 Australian citizens have not been received by those remaining 16 Australian (COT Cases) citizens.

A 12 February 1997 letter from Telstra to John Wynack (director of investigations in the Commonwealth Ombudsman’s office) concerns my original 1994 request for arbitration FOI documents (which I have still not received to this day). This letter states:

“You comment that you believe Telstra ‘should have taken steps to protect documents covered by [Mr Smith’s] request whilst it consulted with Mr Smith in an attempt to scope down the FOI request’.

“It is the case that Telstra did indeed take such steps, as Telstra wished to retain all of the files created by Mr Black relating to the CoT claims. … As a result a large number of files (86 in all) were forwarded to the FOI Unit. Unfortunately, at the time the files in question were apparently not recognised as files relating to CoT matters, rather they were thought to be simply files of miscellaneous material.

“As you will see from the above these files were inadvertently disposed of.” (See Senate Evidence File No 7)

Mr Wynack wrote to Telstra, concerning my FOI issues, on 11 March 1997:

“On 7 March 1997 I sought information from three Telstra officers about one aspect of your response to that complaint viz the disposal of some of Mr Black’s papers after Mr Black left the employ of Telstra.” (See Senate Evidence File No 7)

A further letter from Mr Wynack on 13 March 1997 to Telstra, concerning my FOI issues, states:

“During the course of her interview, Ms Gill informed me that the papers dealing with Mr Black’s role in establishing the Fast Track Arbitration Procedure were on an ‘arbitration file’ and that that file is one that is missing. Ms Gill said that ‘.. I don’t recall having sent it to anybody and I don’t recall having put it in the bin..’. Ms Gill said that the ‘arbitration file’ was a manila folder ‘..but a fairly thick one.’

“On the basis of the information given to me by [Telstra] and Ms Gill, it is extremely improbable that Ms Gill disposed of the documents in the ‘arbitration file’, or indeed any other documents from Mr Black’s office which would have been included in Mr Smith’s FOI application of 18 October 1995.″ (See Senate Evidence File No 7)

Telstra has still not provided me with a copy of their ‘arbitration file’ despite Mr Wynack’s letters referring to it.

The fourth 14 March 1997 letter from Mr Wynack to Telstra states:

“I refer to my letter of 13 March 1997 concerning the complaint by Mr Alan Smith alleging that Telstra unreasonably has delayed providing documents requested under the FOI application of 18 October 1995.

“I should be grateful if you would notify [Telstra employee], Mr Kearny and Ms Gill of my opinion that ‘On the basis of the information given to me by [Telstra employee] and Ms Gill, it is extremely improbable that Ms Gill disposed of the documents in the ‘arbitration file’ or indeed any other documents from Mr Black’s office which would have been included in Mr Smith’s FOI application…’ (See Senate Evidence File No/59)

Senate Hansard dated 24 June 1997, pages 76-77, show Senators Kim Carr and Schacht discussing my still outstanding arbitration matters, including:

Senator CARR – In terms of the cases outstanding, do you still treat people the way that Mr Smith appears to have been treated? Mr Smith claims that, amongst documents returned to him after an FOI request, a discovery was a newspaper clipping reporting upon prosecution in the local magistrate’s court against him for assault. I just wonder what relevance that has. He makes the claim that a newspaper clipping relating to events in the Portland magistrate’s court was part of your files on him.” . . . .

Senator SHACHT – “It does seem odd if someone is collecting files. … It seems that someone thinks this is a useful thing to keep in a file that maybe at some stage can be used against him.” … . . . .

Senator CARR – Mr Ward, we have been through this before in regard to the intelligence networks that Telstra has established. Do you use your internal intelligence networks in these CoT cases?” (See Senate Evidence File No 2A & 2B)

PLEASE NOTE. Re the newspaper clipping and charges against me: No punches were thrown by me during this altercation with the sheriff who was about to remove catering equipment that I needed, to keep trading, from my property. I actually placed this man in a ‘full nelson’ and walked him out of my office. The Magistrates’ Court dropped all charges on appeal when it became obvious there were two sides to this story.

Australian Senate Parliament House Canberra

Starting on page 5163, this link SENATE official Hansard – Parliament of Australia, dated 25 of June 1997, shows Telstra employees rorted millions upon millions of dollars from Telstra shareholders: i.e., the government and Australian citizens, who then owned Telstra. The pressure Senators Alston and Boswell applied, for a Senate investigation into the Casualties of Telstra (COT cases) phone fiascos, was one of the reasons Telstra agreed to settle the COT cases’ issues in a proposed Fast Track Settlement Proposal signed by Telstra and the four claimants in the third week of November 1993. Telstra, it seemed, could not afford a further investigation into its operation: NSW was not the only state where this rorting, and others, was taking place. Many people made threats against the COT cases because our persistence, in order to gain full functional phone systems, was about to expose other unethical behaviour at Telstra, including at the management level. The fact that both the Telstra CEO and board knew millions upon millions of dollars (again, see 5163 of SENATE official Hansard) were being unlawfully siphoned from the government coffers is unbelievable. In fact, figures running into the billions have also been quoted.

Furthermore, although it is astonishing, page 5163 of > SENATE Official Hansard – Parliament of Australia shows that, even before COT members and a number of senators applied pressure, both Telstra’s CEO and all the members of the Telstra board had already known, for some time, about the millions of dollars that Telstra was unlawfully withdrawing from government coffers. Perhaps even more unbelievable is that the COT cases received no recognition, from either the government or Telstra, for our stand for honesty and truth; instead, we have been treated in the worst possible way, labelled as vexatious litigants and our lives have been ruined, simply because we believed that what we were doing would eventually benefit all Australians.

COT members pleaded with the Telecommunication Industry Ombudsman (TIO) not to force us into arbitration with Telstra whilst Telstra was under investigation by the Australian Federal Police for unauthorised interception of COT cases’ telephone conversations – this was undemocratic. The TIO ignored our concerns. What we did not know, was that the TIO and arbitrator had secretly agreed with Telstra to use their drafted arbitration agreement and NOT the independent agreement the government was assured would be used to assess our matters. Even worse, although the arbitrator wrote to the TIO, advising him the arbitration agreement was not credible to use in the arbitrations, it was still used. This letter from the arbitrator was then concealed from the claimants during their designated appeal processes, regardless of its value.

Even before the arbitrator brought down his first deliberation, both he and the TIO were warned, on 18 April 1995, that there were “forces at work” derailing the arbitrations. They both ignored this written advice. This letter to the TIO, from the arbitration project manager, was also concealed from the claimants during the same designated appeal process.

Both Telstra’s 14 April 1994 letter, to the Australian Federal Police (AFP), that admits at least one Telstra employee was intercepting my telephone conversations, and my 9 September 1994 response, concerning this unauthorised interception over an extended period, are now stamped “Protected AFP” material. The SENATE official Hansard clearly refers to Telstra’s conduct, stand-over tactics and threats towards the COT cases. The Senate Hansard, AFP transcripts (of conversations with me concerning these threats) and the Commonwealth Ombudsman’s records, all confirm Telstra carried out those threats against; yet neither the arbitrator nor the TIO addressed this during my arbitration. Why has no one ever addressed this unethical conduct publicly? Why is there no record, in the arbitrator’s award, exposing these threats? Why was Telstra allowed to make these threats and commit similar unlawful acts against the COT cases during their arbitrations? Neither the TIO nor arbitrator came to my aid or demanded answers to why a corporation can take control over arbitrations in a government-endorsed process. This has been the hardest thing for the COT cases to accept, after having given so much to the people of Australia

 Melbourne lawyers, Michael Brereton & Co, sent this 20 August 1997 letter to Senator Ron Boswell, detailing how the process had failed me:

“The conduct of the arbitration which followed was highly dubious and open to attack as inviting questions of bias since the arbitrator ruled out many relevant documents to the detriment of Mr Smith’s claim… All of these circumstances and the fact that the entire arbitration was conducted in a highly legalistic manner much in favour of Telstra on rules it forced into place suggest that Mr Smith was less than fairly dealt with by Telstra and the arbitrator.” (See Senate Evidence File No/58)

Senator Ron Boswell’s son Steven immediately suggested that this letter clearly supported COT cases’ claims against the conduct of the arbitration process. I was, by then, included as one of the group that the Senate estimates committee working party was going to investigate. At this stage, however, in August/September 1997, the Senate working party had not yet divided the 21 COT claimants into two groups, the A (or ‘litmus’) group and the B group.

Again, on 4 October 1997, My Wynack (Commonwealth Mobudsman Office writes to Telstra stating:

“I refer to my letter to Telstra dated 13 March 1997 (copy attached for your convenience) in which I asked you to inform me of the specific file which Ms Gill described as the ‘arbitration file’, and whether Telstraasked [sic] Mr Black whether he has any knowledge of the whereabouts of the file.

“I have no record of receiving a response to my inquiries. Please inform me when I might expect a reply.” (See Senate Evidence File No 7)

I’m still waiting for a copy of this ‘arbitration file’, despite discussing it with Senator Ron Boswell on 20 August 1997 and despite Graham Schorer and I being told it would be provided to us once the Senate estimates committee started their FOI investigations.

On 23 October 1997, the office of Senator Schacht, Shadow Minister for Communications, faxed Senator Ron Boswell the proposed terms of reference of the Senate working party for their investigation into the COT arbitration FOI issues. This document shows 23 COT-type complainants, protesting about Telstra’s lack of cooperation in providing FOI documents, were arbitrarily divided into two groups: Schedule A and B (see Arbitrator File No 67 Senate). Five members of the A group went on to become the ‘litmus test’ cases. The 16 members of the B group were advised that, if the A group’s claims were successful, then any decisions and remedies that followed would equally apply to the members of group B. For reasons never explained, I was not included on the A list; Garry Dawson, from Melbourne, took that position instead, even though it eventuated that he did not actually take part in the investigation. In all, two COT cases did not have the energy to keep going and pulled out of the investigation.

A number of senators, Graham Schorer (COT spokesperson, and on the A list) and the Commonwealth Ombudsman’s Office were all told that, if the five on the A list proved their cases, then the remaining 16 would be treated the same. A litmus test is often used, for the sake of expediency, when there are many people affected by the same circumstances.

However, although the investigation into the litmus cases was initially intended to be completed quickly, the investigations ended up taking 20 months to complete and the remaining 16 were denied access to the remedies that were provided to the first five cases. The 15 other Schedule B COT claimants and I have never been given the chance to access the same relevant documents that the five test cases were provided, even though all our names were on the Senate estimates committee Terms of Reference schedule. The Coalition Government limited the investigation into Telstra’s conduct during the processing of the outstanding COT FOI issues to the first five litmus test cases.

If I had been included in the Schedule A list of COT cases in 1997, I would have asked the Senate working party to access a copy of Telstra’s arbitration file (see above) from the TIO or Telstra. With this file in hand, it would be just about impossible for Telstra to convince the senators that Telstra had destroyed their own major arbitration file. If I had been able to show the Senate estimates working party that the TIO’s special counsel, the arbitrator and Telstra were all involved in concealing the covert alterations to my arbitration agreement, following investigations would have also uncovered that the arbitrator continued to use the altered version of the agreement after he declared it was not a credible agreement. Those two issues (the covert alterations and the arbitrator branding the agreement as not credible) would have been enough for the Senate estimates committee to demand explanations for that unconscionable conduct. Surely no Australian senator would condone an arbitrator’s use of an agreement he knew was not credible? The arbitrator’s letter stating this was hidden from the Senate to prevent the TIO office from falling into disrepute.

Questions on Notice (1)

Although we address this 24 October 1997 letter from the TIO to Ms Pauline Moore, (secretary to the Senate Environment, Recreation, Communications and the Arts legislation committee) elsewhere on absentjustice.com, we can link in another sinister set of ill deeds committed against the COT claimants. This letter, stamped CONFIDENTIAL, includes the following statement:

“The COT Arbitration Procedures contain provisions relating to the confidentiality of the proceedings, which bind the parties. Those provisions also bind the Arbitrators, the Resource Unit, the Special Council and the TIO in my role as Administrator. …

“Accordingly, I ask that the answers given below to the questions on notice be treated as confidential by the Committee and not be published. …

“9.      Yes, from time to time I have received complaints from foundation COT members, concerning a range of matters, including alleged non-compliance with the rules of the Fast Track Arbitration Procedures by Telstra and/or the Arbitrator and/or the Technical and Accounting Resource Unit. …

“10.    Yes, I have refused to provide COT members with a copy of Telstra’s Preferred Rules of Arbitration. A copy of this document was not provided because it was of historical interest only, and the COT members did not advance any argument as to why it was relevant to their arbitration.” (See Senate Evidence File No 14)

The TIO’s insistence that the agreement was not provided to the COT claimants because: “it was of historical interest only, and the COT members did not advance any argument as to why it was relevant to their arbitration”, is a misrepresentation of the truth – to hide the fact that it was Telstra’s arbitration agreement that was used to protect Telstra, to the detriment of the claimants.

Graham Schorer, as COT spokesperson, first asked for a copy of the Fast Track Proposed Rules of Arbitration sometime before 17 February 1994, so the decision that it would be kept from the claimants was made at least a full two months before we signed the final version of the arbitration agreement. It was therefore entirely “relevant to their arbitration”. The COT claimants were legally entitled to know whether the arbitration agreement was drafted independently or if the defence crafted it, in their favour.

The claimants should have been provided with that original version of the agreement before we signed for arbitration; it should have also been provided during the arbitrations and the arbitration appeal periods. At an official arbitration meeting on 17 February 1994, Mr Schorer said he wanted assurances from the TIO and the arbitrator that the agreement he and the other COT claimants were being pressured to sign was not Telstra’s Proposed Rules of Arbitration. Telstra’s own transcript of this meeting (see Senate Evidence File No/48 ) confirms the arbitrator and the TIO special counsel “both stated they had not received this document and had not read it and that it was irrelevant”. Documents (see Senate Evidence File No 6 and File No/49) confirm the arbitrator was provided with (and read) a document called “Telstra Corporation Limited – ‘Fast Track’ Proposed Rules of Arbitration” sometime before 18 January 1994, a whole month before this pre-arbitration hearing on 17 February 1994.

Telstra’s Fast Track Proposed Rules of Arbitration, which the TIO was still refusing to supply us in October 1997, was the same arbitration file that John Wynack, director of investigations in the Commonwealth Ombudsman’s Office, was trying to access from Telstra on my behalf during 1995 to 1997 (discussed above). Powerful people amongst those administering the COT arbitrations wielded power within the establishment to conceal this very important pre-arbitration document.

How can the government who originally endorsed the first four arbitrations continue to ignore that we were entitled to receive Telstra’s rules of arbitration before we signed our arbitration agreement? Do not forget the TIO’s letter to me, dated 10 January 1996, stating “I do not propose to provide you with copies of any documents held by this office, (see Senate Evidence File No/50) – echoing the responses that Graham Schorer and I had received since February 1994, from the previous TIO, when requesting copies of Telstra’s proposed rules of arbitration and later my own Ericsson AXE claim documents.

Questions on Notice (2)

There are further issues surrounding the TIO’s answers to similar Questions on Notice asked by the Senate committee. The TIO’s official response confirms that Ericsson purchased the arbitration main technical consultancy firm, Lane Telecommunications, during the COT arbitrations. All the technical information that I supplied to Lane Telecommunications during my arbitration, confirming the AXE Portland and Cape Bridgewater lockup problems were not just a local problem but a national and international problem, affecting hundreds of exchanges all over the world, was acquired by Ericsson.

At least three other COT claimants also had businesses connected to Ericsson AXE exchanges and their claim material, too, was on Lane’s computer data files when the company was sold.

Australia must be the only country in the Western world that allows a witness (Lane Telecommunications was a witness to what the COT claimants had uncovered) to be purchased during a major litigation process, particularly when even the administrator advised the Senate committee of this, on 26 September 1997 (see Senate Evidence File No/61).

I believe the Australian government have to answer these questions: How long was Lane Telecommunications in contact with Ericsson, the major supplier of telecommunication equipment to Telstra, before Ericsson purchased Lanes? Is there a link between Lanes and DMR ignoring my Ericsson AXE claim documents and the purchase of Lanes by Ericsson during the COT arbitration process?

In-Camera Hansard

Ms Sue Owen, the solicitor assisting the four litmus COT claimants who registered their complaints with the police, met with me after seeing one of the reports I originally prepared for my arbitration. This particular report examines the Telstra-commissioned Bell Canada International Inc. (BCI) tests of the Cape Bridgewater network. Telstra submitted, and the arbitrator accepted, BCI’s official report – although the tests their report claimed they conducted were impossible.

After seeing some of the information I had uncovered, the Victorian Police Major Fraud Group asked me to meet with them at the police complex in St Kilda Road, Melbourne. This led to me spending a number of weeks going through documents and writing more reports.

During that process, at least one high-ranking police officer thought it was ironic that I was helping four people who, between them, had already collected some $15 million in compensation from Telstra, while I – left off the Senate’s Schedule A list of claims to be investigated – received nothing. The truth was that, by then, I was stone broke and hooked up to two mortgages while I helped these four COTs with their fraud case against Telstra.

When the fraud group’s investigation fell through, I was called again into their offices, this time to meet with two very senior detectives.

The Major Fraud Group were to courier my four storage boxes of evidence back to my residence. The two senior officers, however, wanted to make sure I personally took a half-size, cut down, A4 storage box of documents and, although I said I was happy to pack the information into one of the four storage boxes, they were adamant that I should take this small parcel with me. They wished me well and apologised to me for the way in which the Victorian Police Major Fraud Group had abruptly concluded their investigations without handing down a finding.

When I arrived back at Graham Schorer’s office and opened the box, we found a number of documents we had never seen before, including the in-camera Senate Hansard records of 6 and 9 July 1998.

Did the Major Fraud Group think it was undemocratic for the Australian government to help only one-third of a group of people without providing the same assistance to the other two thirds when the whole group had suffered the same fate? Was I given these documents to help me achieve justice for the remaining COTs, who had been forgotten by the government?

Of course, I doubt the Victoria Police Major Fraud Group would have expected the Senate to threaten me, for more than three years, with jail time if I release those Hansard records.

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.”

As chairman of the Senate estimates COT committee, Senator Alan Eggleston’s statement that “The report found Telstra had deliberately withheld important network documents…” is clear. The TIO board and council also hid two important issues from the Senate estimates committee:

  • The board and council knew the TIO-appointed resource unit ALSO stopped the COT claimants receiving relevant documents during the arbitration process; and
  • The TIO and the defendants (Telstra) allowed this to happen by secretly placing the resource unit in charge of deciding which documents they thought were relevant for the arbitrator to view and which should be withheld from the arbitration process. The various links on absentjustice.com show this is what happened during my arbitration when the TIO-appointed arbitration resource unit failed to address my claims of incorrect charging on my facsimile and 1800 service.

Neil Jepson (barrister for the Major Fraud Group) suggested I inform the chairman of the Senate estimates committee that I had proof that Telstra had deliberately provided false Bell Canada International Inc. Cape Bridgewater information to Pauline Moore, secretary of the Senate Environment, Recreation, Communications and the Arts legislation committee.

On 18 August 2001, Senator Alan Eggleston wrote to me, noting:

“I am very concerned with your statement in the 6 August letter that you are in possession of two in-camera Official Committee Hansards, relating to this issue, dated 6 and 9 July 1998. Furthermore, that you intend sending these confidential Hansards to Mr Brian Pickard, Ms Sandra Wolfe’s solicitor.

“I wish to remind you that evidence or documents taken in camera or submitted on a confidential or restricted basis cannot be disclosed to another person, unless by order of the Senate. This does not occur often, although the Senate, on 30 August 2000, did authorise the release of the Hansards of 6 and 9 July 1998 to the Victoria Police Major Fraud Group to assist in their investigations.

“The fact that you have received unauthorised confidential committee documents is a serious matter, but if you disclose these documents to another person, you may be held in contempt of the Senate. I would remind you that section 13 of the Parliamentary Privileges Act 1987 provides for penalties in relation to these matters.” (See Senate Evidence File No 12)

While I have never released these two Hansards, in broad terms, they cover two important issues.

  • First, they prove beyond all doubt that one senator announced that it would be an injustice to the remaining COTs if Telstra paid compensation to only those currently under investigation but not the others. However, Telstra was allowed to compensate only those five litmus test cases.
  • Secondly, in October 1997, when Telstra provided the Cape Bridgewater/Bell Canada International Inc. (BCI) report in response to questions raised by the Senate, on notice, Telstra already knew it was false but still no one has ever brought Telstra to account for that decision, even though their actions were in contempt of the Senate.

Senator Kim Carr again criticised the handling of the COT arbitrations on 11 March 1999 as the following Hansard link shows. Addressing the government’s lack of power, Senator Carr stated:

“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, he stated:

“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 > http://parlinfo.aph.gov.au/parlInfo/chamberhansards1999-03-11)

The Senate Hansard of 11 March 1999 includes quotes confirming just how scathingly critical a number of Senators were in relation to the way Telstra ran the COT arbitrations, and not the arbitrator Dr Hughes even going so far as to note that it was “a process subject to unilateral amendment by Telstra”. That the committee was able to state Telstra used their “unilateral” control of the arbitration process to avoid supplying the promised documents shows the arbitration process failed the COT cases.

Senator Schacht also was possibly more vocal when he stated:

“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.”.http://parlinfo.aph.gov.au/parlInfochamberhansards1999-03-11)

Senator Mark Bishop’s statement shown below also notes

Significant issues do arise. I think it is appropriate to refer to the final paragraphs of the committee report. In the second to last paragraph, the report of the committee tabled by Senator Eggleston says:

Estimates of Telstra’s costs in relation to the CoTs issue since the claims were made exceed $20 million ($14.285 million to 1997 and rising). Most of the expenditure has been spent, not on settlement but on administrative and legal costs. It became quite clear early in the process that the claimants had in fact been disadvantaged by malfunctions in their telephone system. It is difficult to understand why Telstra appeared to prefer to deny that there was a problem and then prolonged the difficulties in establishing the extent of that problem.

The final sentence reads:

In the Committee’s view, Telstra should now seek to reach a negotiated agreement with the interested parties.

If fault is to be allocated at this very early stage of the final lap, that fault lies at the door of Telstra. It really is appropriate for Telstra, a $100 billion corporation, to stop using its monopoly power, to stop retaining the services of dozens of highly paid solicitors and to come to the table and to seek to reach a negotiated agreement with these four or five persons. It is simply outrageous that Telstra, which is still a public corporation, can spend something in the order of $20 million – Senator Boswell – Some $24 million.

“I am informed by Senator Boswell it is 24 million – defending a claim when the claim before it is somewhere between $2 million or $4 million. This is simply an outrageous proposition and a waste of public money” (See aph.gov.au/parlInfo/search/displaychamberhansards1999-03-11

The Senate intervention to stop this unlawful conduct only assisted the five ‘litmus’ COT cases (four) that had not yet reached arbitration. The remaining 16 COTs had already been through their government-endorsed processes, but without the bulk of their FOI requests/evidence. By the Senate not assisting the remaining 16 to obtain their FOI requests, those COTs were unable to secure settlements that reflected their true losses. Why were the 16 cases that had gone through a – disputable – arbitration process not even looked at? This is certainly appalling discrimination by the LNP government. And our past and current government bureaucrats have the audacity to downplay what Julian Assange tried to do for the COT cases, i.e, his fellow Australian citizens.

Senator Len Harris, who won his senate seat on 2 July 1999 for the One Nation party, then lived in Queensland, 2,977 kilometres from Melbourne. 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 ).

Senator Len Harris is possibly one of the most honest politicians I have ever had the pleasure of meeting, a true man that believes in justice for all, not just those with political clout. The senator could not understand how, despite various senators from both houses of parliament openly condemning Telstra’s unethical conduct towards those five litmus test COT claimants during their arbitrations and the Senate investigation itself, the other 16 were left to their own devices. The in-camera Senate Hansard records indicate that no one seemed to grasp the importance of Senator Schacht’s advice to the committee that, if Telstra only provided compensation to the five litmus test cases and not the other 16, it would be an injustice because they had also suffered similarly at the hands of Telstra.

The Senate committee helped those five litmus test claimants gain access to documents previously withheld from them, as Senator Harris’ press release shows. These claimants, on top of receiving their long-awaited discovery documents, also received millions of dollars in compensation; not only as a result of their business losses but also because of the unethical conduct they suffered at the hands of Telstra. In 2015 however, the remaining claimants from the 16 on the B list (some have now died) are still waiting for the justice that was denied them.

Imagine how I felt, on 6 December 2004, when I received the second threat from Senator Alan Eggleston on top of the threats I received from Telstra, after I assisted the Australian Federal Police in their investigations into Telstra’s unlawful interception of my telephone conversations. All these threats are linked to the one single issue: the right of all citizens in a democracy to have access to documents classified as ‘discovery’, in any legal process.

The Major Fraud Group’s two senior officers were adamant that I take the small A4 storage box of documents with me after the police were pressured to close down their investigations. Perhaps, it had something to do with me being one of the 16 COTs who had still not received their documents, unlike the five litmus test cases who HAD received over 150,000 documents between them – documents that the TIO initially promised ALL of the COT cases they would receive if they signed the TIO arbitration agreement. That agreement appears to have been deliberately crafted by the defendants (Telstra) to include a limited period for the production of documents and the obtaining of further particulars. These were the same issues that the arbitrator confirmed had affected my arbitration (see Main Evidence File No 34).

Over the last 20 years I have had a number of conversations with people who were closely associated with my arbitration; it appears the person who held the position of TIO during my arbitration claimed his political career would be over, along with the careers of some others associated with my arbitration, if my arbitration evidence ever surfaced as part of a Senate estimates investigation. That TIO later became a very senior front-bench minister in the John Howard Liberal/Country Party Government.

So, is this only hearsay? Or could there be some truth to it, considering that the vacant position on the “A” list was never filled after Garry Dawson withdrew?

Author’s Note:

From 1993 through to 2008, the Hon David Hawker MP, Federal Member for Wannon (in South West Victoria), clearly knew just how badly corroded the existing copper wire was in telecommunication systems, particularly in his electorate, even while he was the Speaker in the House of Representatives. Mr Hawker was tireless in his attempts to ensure that his coalition colleagues in the Australian government saw the many documents that I had given to him over the years. Like me, most of the COTs wrote many letters to the Australian government, particularly between mid-1996 and 2002. We warned that to continue with the push to privatise the Telstra Corporation, while the copper wire network was in such bad shape, was almost criminal because the shareholders would be left with the bill to replace the ailing network in years to come. Senator Len Harris began to accumulate evidence from different sources, including at least three of the COTs, as his 14 November 2002 media release shows (see Senate Evidence File No 57). He tried, as an independent senator, to explain to the Minister for Communications that this information should be released into the public domain. No one seemed interested in listening to him, or the COTs. The privatisation went ahead, and the rest is history.

Now in 2018, Telstra shareholders are footing the bill and the NBN rollout is a disaster. On 21 January 2016, a Telstra shareholder told me that he was not informed that the Telstra network was in such a state, either in writing or at shareholders’ meetings, when he purchased his shares 10 years ago. The NBN rollout of 2014-2015 has revealed the copper wire network to be in a far worse state than the Telstra Corporation has ever acknowledged. How do Telstra’s shareholders feel about this non-disclosure by the government prior to the privitisation?

Many bureaucrats who commented on our fight for justice branded the members of COT as frivolous and vexatious litigants, but they missed a number of important facts. Firstly, most bureaucrats have never attempted to run a small business of any sort, particularly a business where the loss of four or five telephone calls a day is enough to completely destroy that business (especially if those lost calls continue to occur). The arbitrator handed down his findings based on Telstra’s claim, sworn to under oath, that the complaints raised during arbitration were fully rectified. This was not the case.

Those same bureaucrats also fail to understand that my ongoing telephone problems were not investigated or fixed, even though the Australian government promised me that ALL the problems would be fixed as part of the arbitration process.

One of the founding four members of the Casualties of Telstra Ann Garms on 14 July 2018 sadly past away. Graham Schorer (COT Spokesperson) is ill and will no longer take part in assisting in telling our story. Maureen Gillan appointed a power of attorney to handle her COT matters long ago which in August 2018, left me to take up the baton so to speak.

Chapter Five 

The fifth remedy pursued

This remedy pursued ran parallel with the ASIC investigation of 1998.

It is also important for anyone who reads our Open Letter File No/41/Part-One and File No/41 Part-Two, to understand that although a copy of that report dated June 1996, was originally sent to Paul Fletcher at his request, during the period he was an adviser to Senator Richard Alston (the then-newly appointed Minister for Communications and the Arts) it was also sent to the Commonwealth Ombudsman’s office as well as the then Australian Securities Commission (now ASIC). I can only assume that it was this report Open Letter File No/41/Part-One and File No/41 Part-Two, that first prompted Mr Alan Cameron, chair of the Australian Securities Commission to originally agree to investigate my complaints.

After reading  Open Letter File No/41/Part-One and File No/41 Part-Two, it will become clear that the exhibits and evidence that were attached to the report show that, if Paul Fletcher (now the Minister for Communications and the Arts in the current government had properly investigated that evidence in June 1996 then most (if not all) of the issues that I have been trying to have investigated since then, would have been settled in 1996.

To support my claims that Anthony Hodgson misled ASIC or his own company misled him regarding less them only assessing less than 11% (eleven per cent) of my legally submitted claim see the following points

Point 1, There are discrepancies between the arbitrator’s and my version of the technical consultants’ report titled Resource Unit Technical Evaluation Report. Mr Alan Smith. CBHC. 30 April 1995. The second paragraph on page one consists of only one short sentence “It is complete and final as it is,” (seeArbitrator File No/27). However, the second paragraph on the equivalent page (page two) of the arbitrator’s report, also dated 30 April 1993 says:

“There is, however, an addendum which we may find it necessary to add during the next few weeks on billing, i.e. possible discrepancies in Smith’s Telecom bills.” (See Arbitrator File No/28)

Point 2, There is more information in the arbitrator’s version than there is in mine. The reference to my ongoing billing problems states extra weeks are required to complete the investigation. The arbitrator did NOT provide the extra weeks.

My page two of this report (see Open Letter File No/47-A to 47-D) shows no mention of my billing claim document in my version. However, page three in the arbitrator’s version notes:

“One issue in the Cape Bridgewater case remains open, and we shall attempt to resolve it in the next few weeks, namely Mr Smith’s complaints about billing problems.

“Otherwise, the Technician Report on Cape Bridgewater is complete.” (See Open Letter File No/47-A to 47-D)

How can two identical technical reports with the same 23 technical assessments, both dated 30 April 1995 and apparently both prepared by the same consultants, have one version noting that the “… case remains open, and we shall attempt to resolve it in the next few weeks”, while the other has no mention of it still being open and needing weeks to complete?

Both documents state: “A comprehensive log of Mr Smith’s complaints does not appear to exist.” It did exist, as we have shown. Had this comprehensive log of fault complaints been provided to the technical consultants to assess, they would have had to overrule the arbitrator’s decision not to allow them the extra weeks they had requested, in order to investigate my ongoing billing faults.

Garry Ellicott and Barry O’Sullivan (my claim advisors) had definitely submitted a very comprehensive list of fault complaints as part of my submission (see Arbitrator File No/31 & 32). One of those reports was a full chronology of events to assist with reading the comprehensive log of fault complaints. Were these documents lost on route to the arbitrators office via Australia Post or the very inadequate faxing system at Dr Hughes’ office (see exhibit G  Schorer 717-G stat dec and letter to IAMA)? When I demanded an arbitration meeting to discuss these missing reports, my request was denied (see Arbitrator File No/48).

To be clear, a dated chronology of my 008/1800 billing issues was in existence before, during and after my arbitration. A comprehensive log of faults was submitted to the Federal government prior to my arbitration as well as during, but this record disappeared, leaving only 11% of my claim documents to be assessed. Neither Telstra nor AUSTEL could not allow my 008/1800 billing issues to be scrutinised and exposed. The implications of a systemic charging issue, which affected as many as 120,000 Australian households and businesses (see Chapter One Bad Bureaucrats)

My award was brought down on 11 May 1995. The very next day, the arbitrator wrote to the TIO and discussed one of the deficiencies in the agreement; the insufficient time frame allowed in the arbitration agreement for the preparation of technical reports”. I had raised this very same issue with the arbitrator the previous week when I requested he give me more time to investigate the disappearance of my comprehensive log of complaints.

Why should my arbitration claim be penalized because of the inadequate handling of the arbitration material once it reached the arbitrator’s office?

Point 3, The next damning letter was from John Rundell (FHCA) the Arbitration Project Manager, on 18 April 1995, advised the TIO, the arbitrator and the TIO counsel that:

“It is unfortunate that there have been forces at work collectively beyond our reasonable control that have delayed us in undertaking our work.” (see Prologue Evidence File No 22-A)

The four COT claimants Ann Garms, Maureen Gillan, Graham Schorer and (me) were never told about any of these so-called “forces at work” and nor were we ever warned that, under the nose of the TIO, the TIO’s legal advisor and the Arbitrator, these un-named “forces at work” were allowed to infiltrate and manipulate the arbitration process wherever and whenever they desired, but always with the aim of helping Telstra to defeat the COT claimants.

Point 4, When these three legal experts, (i.e. Dr Gordon Hughes, Warwick Smith and Peter Bartlett) allowed this very important letter of 18 April 1995 to be hidden from the four COT cases, those so-called ‘legal experts’ directly assisted those “forces at work” to carry out their intended disruption of all four of the COT cases’ arbitrations. If John Rundell had sent a copy of his letter to the four COT cases, as he should have, all four of us could have approached the Federal Government at once because, with Mr Rundell’s letter as evidence, we would certainly have had a very reasonable chance of being granted the rights to have all four processes reviewed and amended, at the very least.  And don’t forget, it was the Federal Government who had originally endorsed those first four Fast Track Arbitration Procedures.

By viewing exhibits Open Letter File No/41/Part-One and File No/41 Part-Two, as well as exhibits Open letter File No/45-A to 45-I and comparing them with Open letter File No/46-A to 46-L to File No/47-A to 47-D, it will be clear my claims against the conduct of the arbitrator and FHCA are valid.

I also hoped ASIC, with its legislative powers, would order a quick assessment of the arbitrator’s written technical findings in his award, as well as compare Telstra’s arbitration defence. ASIC would have proved beyond all doubt that NONE of my Ericsson AXE and NEAT faulty testing equipment procedure was defended by Telstra, or commented on by the arbitrator. Lane Telecommunications (the TIO-appointed arbitration technical advisors investigated NONE of my Ericsson fault data. I can only presume Lane did not assess my Ericsson claims because Lane was already in the process of being purchased by Ericsson. ASIC was misled and deceived by Ferrier Hodgson Corporate Advisory as I had been during my arbitration.

Why then did Anthony Hodgson, the chair of Ferrier Hodgson Corporate Advisory (the arbitration financial resource unit), write to Alan Cameron, chair of the Australian Securities Commission (see Open letter File No/45-I), on 17 March 1998, advising that I was wrong: ALL of my claim documents were addressed during my arbitration when the above-aforementioned points and exhibits show they were not addressed at all. This statement by Mr Hodgson to ASIC was clearly misleading and deceptive conduct. If he wrote on advice he received within his own corporation, then his own company members and partners within profoundly misled and deceived him and when this possibility was brought to his attention and the attention of John Pinnock (the second TIO) the truth of the matter was not relayed back to ASIC.

Had the Australian Securities Commission not been misled and deceived in March 1998, less than three years after my arbitration concluded, and instead made a finding that my claims were justified, as the attached exhibits on absentjustice.com show, then I could have challenged at least one of the sections in the arbitrator’s award, as 1998 was well within the statute of limitations time-frame allowed.

Chapter Six

The sixth remedy pursued

This remedy pursued went from 1998 to 2001 (see also An injustice to the remaining 16 Australian citizens)

During 1998/99, the Major Fraud Group Victoria Police asked me to supply any evidence I had of Telstra committing fraud to support its defence during my 1994/95 arbitration. It was common knowledge in government circles that Telstra, indeed, used fraud in defence documents, as well as submitted false information to the Senate in September and October 1997, concerning this same fraud. As I did during my 1994 arbitration, when I assisted the Australia Federal Police during its investigation into Telstra’s unethical conduct towards me (see Senate Evidence File No 31), I agreed to assist the Victoria Police in their 1998 investigations into similar acts of misconduct towards fellow Australian citizens.

It is important to raise the Victorian Major Fraud Group’s police involvement in the COT cases’ matters (as well as a number of parties associated with the Major Fraud Group), as it is clearly linked to our An Injustice to the Remaining 16 Australian Citizens page. I was not one of the four COT cases’ litmus group, who, through Sue Owens (barrister) lodged complaints against Telstra with the Major Fraud Group in 1999. I was seconded some months later as a witness. The litmus COT cases provided my evidence of Telstra committing fraud against me, during my arbitration to the Senate estimates committee during their FOI investigations. Despite this, the chair of the Senate estimates committee discarded my evidence (even though it had been provided On Notice to Senator Ron Boswell).

It was this discarded evidence the Major Fraud Group asked me to supply at the request of their barrister, Neil Jepson.

After I provided the contents of (see Telstra’s Falsified BCI Report to Neil Jepson, the Major Fraud Group asked me to assist them in compiling this evidence for their investigations. I did this over two separate visits to Melbourne spending two full days at the Major Fraud Group’s St. Kilda Road offices. This is important to the litmus tests cases issue because the Major Fraud Group was stunned at the evidence and how I was able to prove Telstra definitely perverted the course of justice, on two occasions, by submitting false evidence to Dr Hughes, the arbitrator appointed to my case.

I ask you to consider two witness statements, dated 8 and 10 August 2006, referring to the 1999 and 2001 Major Fraud Group investigations: one statement was prepared by a government public servant/ex-police officer and the other by an ex very-senior Telstra protective officer (later promoted to the principal investigator). Both statements are discussed on our Absentjustice Preface page AFP Evidence File No 13. Members of the current government were provided with copies of these witness statements, without redactions. Sadly, the information in these two witness statements, to date, has not been acted upon.

The Telstra ex-senior protective service officer’s witness statement discusses a then still senior detective sergeant of the then Major Fraud Group, Victoria Police. The ex-police officer’s witness statement also describes the anguish experienced by the senior detective sergeant while he was investigating alleged fraud within Telstra during the COT arbitrations and the fears he had after being subjected to intimidation. Consider this: if this feeling of being got at by the Telstra Corporation can reduce a fully trained senior police officer to the condition Telstra’s ex-senior protective service officer alleged, just think how this continued and unaddressed harassment, by Telstra officials, left the COT cases during and after their government-endorsed arbitrations. NONE of us was ever offered any counselling or apologised to by the government, who still owned Telstra when this harassment commenced in 1992 (see Australian Federal Police Investigation File No/1) and continued well past the Major Fraud Group investigations of 1998 and 2001.

Exhibits CAV-AS 814, 815 and 816, which are attached to AS-CAV 790 to 818, show perfectly clear that the Department of Justice in the State of Victoria has declined to even begin an investigation into the evidence I have, which shows how Arbitration-and Supreme Court-related documents that were sent by fax during the COT Arbitrations (but which were definitely not sent to Telstra) were, however, intercepted via Telstra’s network during the time that Telstra was the defendant in all of the arbitrations that were connected to those intercepted faxes.

After the Federal Government put the Major Fraud Group under political pressure to abandon the four COT claims of fraud against Telstra, I met two senior Victorian police officers who apologised for what they realised was truly an ordeal for me: not only my failed arbitration but also the failed Victoria Police investigation. I was provided with a small A4 storage-box, taped shut. They advised me my four larger boxes of evidence would be couriered to my designated location. I asked if this small package could be included, as I preferred not to carry it away. The look in the eyes of the police officer in charge was stern and direct, “NO, you take this box with you now,” I didn’t argue!

It turned out that this box contained some startling documents I had not seen before, documents that would shock most Senators today, but which clearly indicated that their predecessors had allowed only five of the twenty-one legitimate COT claimants to have access to discovery documents and had also organised compensation for those five, compensation that ran into the millions upon millions of dollars in hush money, and all of that was accomplished so that the Telstra Corporation could be privatized.  Now, if I am wrong, and that is not the case, then why were the remaining sixteen COT claimants all denied access to any of the privileges that the five ‘litmus test cases’ had been granted, and why did a letter from the Senate Estimates Committee Chair advises the police that two In-camera Hansard records, dated 6 and 9 July 1998, must not be provided to anyone outside of the Major Fraud Group and, if someone did reveal them then that person risked being sentenced to jail?  Interestingly, the 9 July 1998 Hansard clearly states that to only award compensation to the ‘litmus test cases’ that were being investigated by the Senate Committee Working Party, and not to the other sixteen claimants, would be an injustice?

It might be hard to believe but, back in August 2001, and again in December 2004, the Australian Government threatened, in writing, to have me charged with contempt of the Senate if I was to ever disclose these in-camera Hansard records, even though those documents could well have won our cases if the COT claimants had appealed against the arbitration process? Where is the justice in that? Being charged with contempt of the Senate can result in a two-year jail term and, of course, the Government has always known that but, if I had been in a position to safely go ahead and make these documents public, they would have been a huge help, probably resulting in me winning my appeal against Telstra for gross misconduct.  So how can the Senate continue to hide this conduct and, in the process, destroy so many lives? How is this democratic?

To understand how and why this occurred, we need to go back to 1997, when the John Howard Coalition Government was in the throes of executing the first of its three steps towards the final privatisation of Telstra. Then, towards the middle of October 1998, the COT ‘litmus test’ cases were, eventually and slowly, beginning to receive some of the previously withheld documents they had legally requested. It then became apparent that the Howard Government was selling the Telstra Corporation, i.e. a government asset, which was in a much worse state than the Government Communications Regulator had claimed it was in (see Manipulating the Regulator and Cape Bridgewater Evidence File). After some 150,000 previously withheld documents were finally delivered to the ‘litmus test’ cases (see An injustice to the remaining 16 Australian citizens) the picture that began to emerge clearly identified exactly how bad the Telstra copper-wire network was, certainly in many rural locations. It then seemed that this was the real reason for the Government’s decision to stop the remaining sixteen COT claimants from receiving the same privileges as those awarded to the ‘litmus test’ cases, which eventually took more than two years to assess. Could the Government afford to have the truth of Telstra’s dilapidated network exposed just as they were about to privatise the corporation? I think not.

I am convinced that when the Major Fraud Group ‘inadvertently’ provided me with copies of these Hansard records, they believed that those records would be instrumental in eventually creating justice for the remaining sixteen COT Cases. Our webpage An injustice to the remaining 16 Australian citizens shows however that this was never the case.

The government may believe the FOI litmus test for only five of the 21 COT cases is a government matter, however, note how discriminative this process has been – giving free technical advice to some COT cases concerning their FOI requests while refusing/failing to assist the other 16 COT cases who also suffered at the hands of Telstra.

As part of the assistance I provided to the Major Fraud Group during their investigations there were two separate occasions where I needed to stay in Melbourne for two days and nights (i.e. four days in total) and it was during that time in particular that I had the pleasure of working with a number of different officers.  I found all those officers to be helpful, cooperative and most professional in all their dealings with me. In fact, I discovered that I actually enjoyed the immense pressure I was under, as we worked together, analysing what we COT Cases had really been forced to endure in order to protect Telstra at all cost.

Chapter Seven

The seventh remedy pursued 

The remedy pursued went from 2001 to 2002

In mid-2001, I met with Peter Condliffe, Chief Executive Officer of The Institute of Arbitrators and Mediators Australia at 450 Lt Bourke St Melbourne 3000. On 12 January 2002, in response to a request from Mr Condliffe I provided his office with further documents to help the IAMA with their investigation into claims that Dr Gordon Hughes did not conduct my arbitration in a transparent manner and/or according to the ambit of the arbitration procedures.

One of the many documents provided to Mr Condliffe dated 26 September 1997, after most of the arbitrations were concluded, was the statements made by the second appointed administrator to the COT arbitrations, John Pinnock, to a Senate Committee (see page 99  COMMONWEALTH OF AUSTRALIA – Parliament of Australia) that:

“In the process leading up to the development of the arbitration procedures—and I was not a party to that, but I 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.”

“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.”

My question to Mr Condliffe was: 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 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? Where are these hidden arbitration related Telstra documents that we COT Cases were told we would receive if we entered our government endorsed arbitrations? Why hasn’t the government acted upon this official advice given by John Pinnock?

I believed at the time, and I still do today, that it was this proof that confirmed that Dr Hughes had not conducted the arbitrations (which included mine) according to the agreed ambit of the arbitration procedures that prompted the IAMA to agree to investigate my claims.

On 30 January 2002, I received a letter from Mr Nosworthy, Senior Vice President of the IAMA, advising me that:

“It should be clearly understood that the Institute’s role is to take seriously complaints which are articulated against its member arbitrators.  We will do so here.”

After I received this 30 January 2002 letter I provided Nosworthy with a copy of Dr Hughes letter dated 12 May 1995, to Warwick Smith (TIO) the day after Dr Hughes had deliberated on my arbitration claim which notes

“…the time frames set in the original Arbitration Agreement were, with the benefit of hindsight, optimistic;

“in particular; we did not allow sufficient time in the Arbitration Agreement for inevitable delays associated with the production of documents, obtaining further particulars and the preparation of technical reports…

Most important is the question: why did Dr Hughes bring down his award on 11 May 1995 when he was aware of the agreement he was using was not a credible document to be using?

I was entitled to receive this well-concealed 12 May 1995 letter during my designated appeal period, but I did not receive a copy until 2002 (and outside the statute of limitation period). In this letter, Dr Hughes states:

“…as far as I could observe, both Telecom and Smith co-operated in the Smith arbitration

 “…the time frames set in the original Arbitration Agreement were, with the benefit of hindsight, optimistic;

“in particular; we did not allow sufficient time in the Arbitration Agreement for inevitable delays associated with the production of documents, obtaining further particulars and the preparation of technical reports…

“In summary, it is my view that if the process is to remain credible, it is necessary to contemplate a time frame for completion which is longer than presently contained in the Arbitration Agreement” (Open Letter File No 55-A)

The fax imprint across the top of this letter (Open Letter File No 55-A) is the same as the fax imprint described in the Scandrett & Associates report (see Open Letter File No/12, and File No/13), confirming faxes were intercepted during the COT arbitrations. The question the Telecommunication Industry Ombudsman and the Federal Attorney-General has still not answered is:

Was this letter actually faxed to my office by the ombudsman to assist me in any pending appeal process, and if not, why was such an important letter deliberately kept from me during my designated appeal period? 

If I had received a copy of this letter declaring the agreement used in my arbitration process was not credible, then, of course, I would have appealed the arbitrator’s award. After all, how could an appeal judge argue against the arbitrator’s own findings that the agreement was not credible, even though he used it anyway?

Interception of this 12 May 1995 letter by a secondary fax machine:

Whoever had access to Telstra’s network, and therefore the TIO’s office service lines, knew – during the designated appeal time of my arbitration – that my arbitration was conducted using a set of rules (arbitration agreement) that the arbitrator declared not credible. There are three fax identification lines across the top of the second page of this 12 May 1995 letter:

  1. The third line down from the top of the page (i.e. the bottom line) shows that the document was first faxed from the arbitrator’s office, on 12-5-95, at 2:41 pm to the Melbourne office of the TIO – 61 3 277 8797;
  2. The middle line indicates that it was faxed on the same day, one hour later, at 15:40, from the TIO’s fax number, followed by the words “TIO LTD”.
  3. The top line, however, begins with the words “Fax from” followed by the correct fax number for the TIO’s office (visible

Consider the order of the timestamps. The top line is the second sending of the document at 14:50, nine minutes after the fax from the arbitrator’s office; therefore, between the TIO’s office receiving the first fax, which was sent at 2.41 pm (14:41), and sending it on at 15:40, to his home, the fax was also re-sent at 14:50. In other words, the document sent nine minutes after the letter reached the TIO office was intercepted.

The fax imprint across the top of this letter is the same as the fax imprint described in the Scandrett & Associates report (see Open Letter File No/12 and File No/13), which states:

“We canvassed examples, which we are advised are a representative group, of this phenomena [sic].

“They show that

  • the header strip of various faxes is being altered
  • the header strip of various faxes was changed or semi overwritten.
  • In all cases the replacement header type is the same.
  • The sending parties all have a common interest and that is COT.
  • Some faxes have originated from organisations such as the Commonwealth Ombudsman office.
  • The modified type face of the header could not have been generated by the large number of machines canvassed, making it foreign to any of the sending services.”

Four months after having received a copy of this 12 May 1995 letter and the following supporting exhibits (see Front Page Part One File No/1, File No/2-A to 2-E, File No/3, File No/4 and Front Page Part One File No/5, which show numerous documents faxed from my office to the arbitrator’s office did not reach their intended destination Mr Nosworthy wrote to me on 10 April 2002 and stated:

“I note that your most recent actions have involved making a complaint to the police, alleging fraud – at least on the part of Telstra – and I do not propose to conduct further enquiry in relation to the matter if you are pursuing police action.

I have returned your papers to Mr Condliffe, Chief Executive Officer of the Institute of Arbitrators and Mediators Australia. Will you kindly contact him to make arrangements to collect them.”

Since the police were investigating Telstra – and not Dr Hughes — I found Mr Nosworthy’s decision to stop his investigation into my complaints against Dr Hughes rather puzzling. As shown above, I have already explained the facts surrounding the involvement of the Victoria Police Major Fraud Group and that it was at their request I provide evidence in support of the other COT Cases claims against Telstra.

I say: “I found Mr Nosworthy’s decision to stop his investigation into my complaints against Dr Hughes rather puzzling”, because, when I personally met with Mr Condliffe at the IAMA office (450 Lt Bourke St Melbourne) in late 2001, I had just had a meeting with Mr Neil Jepson, barrister of the Major Fraud Group. I discussed my pending appointment with Mr Condliffe with Mr Jepson and asked if the police might see me discussing my arbitration issues with the IAMA as compromising the Major Fraud Group’s investigation into alleged fraud by Telstra against COT cases Graham Schorer, Ann Garms, Ross Plowman and Ralph Bova. Mr Jepson said I was free to discuss anything with the IAMA that I believed was of importance to my own arbitration case. Mr Jepson made a point of informing me that I should advise the IAMA that, although it had not yet been proven, it was my claims to the government that someone had tampered with Telstra-owned telephone equipment after it left my premises and that Telstra used known-false Bell Canada International Inc tests to support their arbitration defence of my claims that were of interest to the Major Fraud Group and the reason I had been called in as a witness to substantiate these claims, which I did, but this fact Mr Jepson said was not to be made known to the IAMA at this time, although senators Richard Alston, Ron Boswell, Chris Schacht and Len Harris had all been provided with conclusive evidence showing my claims were one hundred per cent correct. What shocked the Major Fraud Group (see Telstra’s Falsified BCI Report) was that so many Senators were made aware of this fraud and yet had done nothing to assist me in resolving the matter. Senators Schacht and Boswell requested Telstra prove my claims wrong – and Telstra could not do so. This upset numerous members of the Major Fraud Group. Of course, I did not reveal this at the time to the IAMA.

My involvement in the Major Fraud Group investigation can be further viewed by clicking onto An injustice to the remaining 16 Australian citizens

Chapter Eight

The eighth remedy pursued 

The eighth remedy pursued was the government-endorsed assessment DCITA 2006 process conducted by the Department of Communications Information Technology and the Arts (DCITA).

On 22nd April 2005,  Senator Helen Coonan’s office writes to me:-

“I refer to your further correspondence of 22 March 2005 to the Hon David Hawker MP concerning your claims against Telstra.

I wish to correct the impression that the Minister is investigating further claims against Telstra, including claims by some of the original ‘Casualties of Telecom’.” (AS 319-A

On 15th September 2005, Senator Barnaby Joyce writes to me:-

“As a result of my thorough review of the relevant Telstra sale legislation, I proposed a number of amendments which were delivered to Minister Coonan. In addition to my requests, I sought from the Minister closure of any compensatory commitments given by the Minister or Telstra and outstanding legal issues. …”

“I am pleased to inform you that the Minister has agreed there needs to be finality of outstanding COT cases and related disputes. The Minister has advised she will appoint an independent assessor to review the status of outstanding claims and provided a basis for these to be resolved.”

“I would like you to understand that I could only have achieved this positive outcome on your behalf if I voted for the Telstra privatisation legislation.” (Senate Evidence File No 20)

Once Senator Joyce had cast that crucial vote, however (the one vote that was hanging in the balance), and had, therefore, made history for the Telstra Corporation and the Liberal-National Coalition Government, Senator Coonan reneged on her promise with a decisive back-flip, as many of the letters collected on this website so clearly shows.  I strongly believe that, if Ann had met with those Senator’s on her own, and had brokered a deal just for her, rather than selflessly including the other thirteen cases, she would have been settled in 2005/2006.  Other parts of this story are now being added to another story planned titled “The Briefcase”

Before you continue to read on, try to place yourself – as many COT cases have tried to do over the past decade –in the shoes of the then-rookie Senator Barnaby Joyce. He believed the deal he made with coalition minister Senator Helen, would be adhered to. It was not as the following chronology of events show.

During this (DCITA) ‘so called’ Independent Assessment process that I was involved in, David Lever (DCITA) assessor sent an email to John Pinnock on 10th May 2006, concerning claims raised by the COT cases that their arbitrations procedures were fundamentally flawed and that relevant documents had been concealed from them by Dr Hughes and the Resource Unit. Astra Taurins responded to this email, on behalf of John Pinnock, noting: ‘…At no stage did I or, as far as I am aware, the Arbitrator, conceal anything from the COTS. (AS 644)

We, therefore, have a situation where:

  1. The arbitration agreement used for the first four COT arbitrations had been drafted by the defendants (Telstra) and not independently as the government was advised;
  2. Dr Hughes was not a qualified graded arbitrator;
  3. Dr Hughes’ letter of 12th May 1995 exposed major deficiencies in the arbitration agreement used in the first four arbitrations;
  4. A secret deal between Telstra (the defendant) allowed the TIO Resource Unit to scrutinise what documents they believed should be provided to the arbitrator for assessment;
  5. Both the technical and financial reports in my arbitration were knowingly submitted into arbitration as complete reports when both reports were incomplete.

If these five points can’t be classified as concealing information from the COTs, then what could be?

In an attempt to salvage something from this event, Senator Joyce came to a compromise with the Department of Communications, Information Technology and the Arts (DCITA), who agreed that they would assess the claims of any of the 14 COTs who were interested in being involved. The Casualties of Telstra – chronology of events (see Absentjustice Part 1, 2 and 3 describes how, once the government secured Senator Joyce’s vote, they did a back-flip and refused to appoint anyone other than their own government-employed assessors, rather than the independent assessor that had been promised to Senator Joyce.

This internal Coalition government email dated 22nd September 2005, concerning the agreed-to COT commercial settlement proposal, from Nikki Vajrabukka notes:-

“Key issues for consideration include:

  • Analysis of Senator Joyce’s request, and Minister’s response

  • What the Minister can and can’t do

  • Whether there is any basis to re-open the investigations/appoint an independent assessor

  • If so, who will that be?

  • What powers does the Minister have to direct a person to do so (for example direct the TIO to revisit the cases?)

  • Whether there were any compensatory commitments or warrants of compensation given by the Minister, the Department or Telstra.

(GS 420)

Please note the question as to whether the Minister had the power to grant a Commercial Assessment was only raised with Senator Joyce after the Coalition Government secured his crucial vote for the full privatisation of Telstra.

On 29th September 2005, David Lever, Department of Communications, Information Technology and the Arts, sends an internal email to a number of Department Personnel regarding an Independent Assessor:-

“Matt Stafford rang to say that the Minister wants a draft letter to Senator Joyce by Friday next week that:

  • re-states what she said she would do in her last letter to him;
  • demonstrates that processes are in place to meet her commitment;
  • indicates the cases/persons who the independent assessment would cover, and
  • asks Senator Joyce whether this should meet his needs. …”

“I suggest that we do all we can to restrict coverage to the 16 COTs that were considered by AUSTEL in its 1994 report as inclusion of any others without some justification, eg that they were mentioned in the Senate’s 1999 report on COTs, would risk irresistible pressure to extend to numerous others who have had disputes with Telstra over the past 10 years. …”

“I also suggested that there may be advantages in appointing ACMA as the independent assessor rather than a consultant to the Department. He has not opposed to this idea.”
(GS 421)

The Hon Senator Coonan Reneges on her Commitment given to Senator Barnaby Joyce Re: Independent Assessment Process

Bullet point 2 above confirms there was a process in place to meet Senator Helen Coonan’s commitment given to Senator Joyce for his vote to allow the government to privatise Telstra. So why did the Minister’s Department not honour that commitment once Senator Joyce cast his vote?  This misleading and deceptive, unconscionable conduct caused Graham and me further trauma

This internal email dated 18th October, 2005 to Senator Helen Coonan states:-

  • “Senator Joyce has written to you seeking urgent advice on your proposed approach to the conduct of independent assessments of various claims against Telstra by customers or former customers or contractors of Telstra.
  • We propose you ask the Australian Communications and Media Authority (ACMA) to conduct the assessments. …
  • There is significant risk for the Government if expectations in relation to compensation are created among claimants that cannot be met by the Government.” (GS 422)

Exhibit GS 423 is an unsigned Government memo from Senator Coonan’s office, received by the Cot cases during their FOI requests to the Minister’s office regarding this assessment process.

“According to Minister’s understanding, assessor to:

  • review the status of all outstanding claims and

  • provide a basis for any sustainable claims that have not been resolved through earlier processes to negotiate a possible settlement with Telstra”

“Possible Loopholes

  • ‘sustainable claims not resolved through earlier processes’ – on the basis that information provided by the claimants raises no new issues, particularly regulatory issues that require addressing by the Minister or the ACA/ACMA.

  • If concerns relate to conduct of Telstra, then these should be raised with the Commonwealth Ombudsman?

  • If the CoTS have evidence of unlawful activities, these should be brought to the attention of the police or relevant law enforcement authorities.”

(GS 423)

19th October, 2005,  David Lever, advisor to Senator Coonan, emails Departmental Personnel:-

“As discussed with Andrew yesterday, the minister has signed and sent a letter to Barnaby Joyce that deals with the above and local presence plan issues. We have not seen it but I made comments on the draft sent yesterday afternoon by matt, seeking to retain the tight constraints on the scope of the assessment, which he had relaxed.”

Simon Bryant responds:-

“I think Jodi be getting confused about what the assessment is meant to do (or at least what we are recommending) ie an assessment of process and what further resolution channels may be available to people. We are arguing strongly that the assessment should not be about the merits of each case.(GS 424)

QUESTIONS

  1. Who was Simon Bryant, to argue strongly “that the assessment should not be about merits of each case”?
  2. How can an independent commercial assessment process be independent, if those administering the process seek to retain tight constraints on the scope of the assessment process?
  3. Why did the Federal Government give Senator Joyce its commitment, in exchange for his vote to allow the Telstra privatisation bill to be passed? Then, as soon as they secured his vote, renege on that commitment?

21st December, 2005:  David Lever emails TIO John Pinnock:-

“Subject: independent assessment of claims against Telstra

“Some of the former ‘COTs’ are among the 22 who will be asked if they wish to participate in the process. …

“The assessment will focus on process rather than the merits of claims, including whether all available dispute resolution mechanism have been used.” (GS 425)

This email from David Lever does not match the promises given to Senator Barnaby Joyce by Senator Helen Coonan.

The Hon David Hawker, Speaker in the House of Representatives assists me in my independent assessment process

Worse was to come, however. I received a copy of an email, dated 3 March 2006, sometime after the end of my April 2006 government-endorsed assessment process. This email was originally sent to a senior ex-government communications bureaucrat who was a government liaison officer for Telstra for his advice on how to go about assessing my 2006 claim (see Senate Evidence File No 18).

10th March, 2006:  The Hon David Hawker writes to me:-

“I wish to acknowledge receipt of your correspondence dated 23 February and 27 February along with your facsimile transmissions of 6 and 9 March. I will ensure this material, including the corrected version, is forwarded to Minister Coonan…” (GS 442)

17th March, 2006:  David Lever writes to me (the day before I signed the Minister’s independent assessment process):-

“If the material you have provided to the Department as part of the independent assessment process indicates that Telstra or its employees have committed criminal offences in connection with your arbitration, we will refer the matter to the relevant authority. (AS 321)

COMMENTARY:

Attached to my independent assessment claim was evidence supporting:-

  • the BCI tests, allegedly conducted at the Cape Bridgewater RCM, could not have been performed at the times and dates as shown in the report;
  • that regardless of Telstra being advised by the Regulator that their SVT tests carried out at Alan’s premises were deficient, they still provided the arbitrator Sworn Testaments to the contrary;
  • Telstra submitting fundamentally flawed laboratory findings (TF200) to the arbitrator;
  • interception and privacy issues;
  • the Ericsson testing equipment could not operate at the same time as the Ericsson Neat Testing was underway on the same line, yet the arbitrator accepted they could; and
  • the Ericsson AXE 104 Portland telephone exchange suffered with problems and faults right through and after Alan’s arbitration.

Question:

Why didn’t I receive one piece of information surrounding the Ericsson equipment and whether the government agreed with my Ericsson claims?

24th May 2006,  Senator Coonan responds to Hon David Hawker MP:-

“Mr Smith has indicated that he would like the terms of reference for the assessment to be wider, requiring the Department to make judgements about the fairness of the arbitration process undertaken by Dr Gordon Hughes, under the administration of the Telecommunications Industry Ombudsman, in 1994. While this is understandable, it is not reasonable to expect the Department or indeed any other person at this point in time to make judgements about the circumstances surrounding Mr Smith’s arbitration. The terms of reference for the assessment are therefore more forward looking, aimed at identifying whether any further dispute resolution processes may be available to be pursued by claimants and Telstra in order to resolve their disputes.” (GS 445-b)

This statement by Senator Helen Coonan:-

  1. Does not coincide with the commitment given by Senator Coonan’s advisor David Lever, 17th March, 2006 to me, prior to me signing the agreement that:-“If the material you have provided to the Department as part of the independent assessment process indicates that Telstra or its employees have committed criminal offences in connection with your arbitration, we will refer the matter to the relevant authority.” (AS 321)
  2. Does not coincide with her commitment given to Senator Barnaby Joyce:-

“As a result of my thorough review of the relevant Telstra sale legislation, I proposed a number of amendments which were delivered to Minister Coonan. In addition to my requests, I sought from the Minister closure of any compensatory commitments given by the Minister or Telstra and outstanding legal issues. …”

“The Minister has advised she will appoint an independent assessor to review the status of outstanding claims and provide a basis for these to be resolved.”

“I would like you to understand that I could only have achieved this positive outcome on your behalf if I voted for the Telstra privatisation legislation.”
(GS 432)

The one crucial vote the Government needed to pass the Telstra privatisation – Senator Barnaby Joyce’s vote – was given on the basis of a commitment that Senator Coonan had no intention of honouring – that an independent assessor would be appointed to assess the merits of each COT case’s claims.

On 27th March 2006,  The Hon David Hawker writes to me:-

“A note to acknowledge receipt of your letters dated 24, 25, & 26 March pertaining to your request for an independent assessment. Thank you also for forwarding Darren Lewis’ letter of 25 March consenting to being interviewed under oath to support your claim that the phone and fax faults continued long after your arbitration.”

“Please be assured representations have been made today to the Minister for Communications and I have supplied Senator Coonan with copies of all above-mentioned letters.” (GS 443)

6th September 2006, at the invitation of Senator Helen Coonan and Senator Barnaby Joyce, I attended a meeting in Parliament House, Canberra, to discuss their unresolved Telstra issues.

16th November 2006,  Senator Joyce writes to Senator Coonan:-

“I must remain with my commitment to the people involved with the CoTs cases. The commitment is representing their frustration and finding a resolution to the issue.

The resolution to the issue, is referenced in your letter of 13th September 2005, where you state ‘I agree that there should be finality for all outstanding ‘COT’ cases and related disputes. I believe that the most effective way to deal with these is for me to appoint an independent assessor to review the status of all outstanding claims.’
(GS 426-a)

The link between my original letter to Mr Pinnock dated 3rd March 2006 (GS 426-b), and (GS 426-a) is that my letter alerted Mr Pinnock to Senator Coonan’s independent assessment process and that I was seeking information from the TIO (under the Privacy Policy Act) for arbitration documents to help support my DCITA assessment process. My original Ericsson AXE 1994 arbitration claim documents comprising of some 3,000 documents had still not been provided back to me from either the arbitrator’s office or from the TIO who were the administrators of my arbitration.

Had Mr Pinnock not misled and deceived Senator Coonan’s office, a more favourable response to the COT cases’ claims may have been forthcoming. Do not forget the TIO’s letter to me, dated 10 January 1996, stating “I do not propose to provide you with copies of any documents held by this office, (see Senate Evidence File No/50) – echoing the responses that Graham Schorer and I had received since February 1994, from the previous TIO, when requesting copies of Telstra’s proposed rules of arbitration and later my own Ericsson AXE arbitration related claim documents.

My letter of 3rd March 2006 states:-

“You would be aware by now that the Hon Senator Helen Coonan, Minister for Communications, Information Technology and the Arts, has agreed to appoint an independent assessor to review all the outstanding Telstra arbitration cases, including my claims. …”

“In a subsequent letter dated 12th May 2004 (also attached), Philip Carruthers, TIO Business Manger [sic], advised me that my letter of 26th April 2004 to all members of the TIO Board and Council ‘…will be passed on to them by hand at the Council meeting scheduled for 19 May 2004.’

My letter is very detailed about what is requesting, including a copy of the section pertaining to the Council discussion on my matters scheduled for 19 May 2004.

I have yet to receive a letter from Mr Pinnock, the TIO Board or Council regarding this matter.

However, the non-release of TIO documents to me, by the TIO board or Council, may well be related to the same Ted Benjamin-TIO Council, conflict-of-interest issues discussed by Senator Schacht on 26th September 1997, in the senate.  It appears as though the TIO Board and Council and Telstra representatives – had a closer relationship that was more than just a possible conflict of interest (see Telecommunication Industry Ombudsman).

Question:

Why didn’t the TIO assist the COT cases in accessing the relevant exchange and technical information they needed to support their claims?

The problems with AXE Ericsson exchanges, and other types of Ericsson equipment, are referred to in different sections of our story.  Throughout the COT arbitrations, the various claimants also reported serious problems in getting Telstra to supply relevant diary notes or fault data, relating to specific telephone exchanges, and they questioned Ericsson’s takeover of Lane Telecommunications because the COT claimants were in arbitration because of faulty Ericsson equipment.

In my arbitration, David Read from Lanes Telecommunications prepared the draft Technical Report, NOT DMR Group Canada as claimed.  David Read assessed only 23 of the earliest of 200 faults included in my claim documents.  The remaining and continuing unassessed 177 faults were mostly caused by the faulty Ericsson AXE exchange.  Did Mr Read only assess 23 of Alan’s claims, and ignore the rest, because Ericsson’s takeover of Lanes was then looming?

The following quotes from a Hansard Record dated 11th February 1999 show that even the Senate smelled a rat where Ericsson was concerned:-

Senator Boswell to Telstra’s Mr Levy:

Senator BOSWELL “The COT members still require the network and Ericsson documents. They have not received one Ericsson document. You have written to Mr Wynack and said, ‘If you want the Ericsson documents, you go to Ericssons and get them.’ Why can you not provide the Ericsson documents and why have you written a letter to Mr Wynack and said for him to go to and approach Ericssons? …

Senator BOSWELL“They should not be hard to find. When you go out and upgrade an exchange you must have some form of plan, and that would be the Ericsson documents Ericsson are doing the job for you.” (GS 427)

If an investigation by the Australian Government (the Senate Working Party) wasn’t able to access relevant technical exchange data, including Ericsson documents from Telstra, then what hope did any of the COT claimants have?

Exhibit GS 428-a confirms the NEAT (Network Evaluation and Test) equipment was used at the RCM (telephone switching device) at Cape Bridgewater between 28th October and 8th November 1993 particularly on 4th, 5th, 6th, 8th and 9th of November, when Telstra allege Bell Canada International carried out their tests.  The exhibit also proves Ericcson manufactured the NEAT equipment.

Exhibit GS 429 is a copy of a letter dated 30th January 1995 from me to Dr Hughes (the arbitrator), confirming I had challenged the results of the ELMI, BCI and NEAT tests carried out between 28th October and 8th November 1993.  This letter and other CAV information provided by me details how, during my arbitration, both AUSTEL and I complained about the deficiencies in the SVTs – to no avail.  Then Brian Hodge MBE, a specialist in the field of technical testing processes (and an ex-Telstra engineer), reported on 27th July 2007 the BCI and SVTs carried out at Cape Bridgewater were fundamentally flawed, adding further weight to the allegations made by me and others back in 1994/95.

COMMENTARY

A letter dated 19 January 2008 (see GS 431) from me to Ms Jodi Ross (Principal Lawyer for ACMA), alerting Ms Ross to FOI documents received by me.  These documents prove that, although the Minister for Communications agreed to appoint an independent assessor in 2005, to assess the merits of each of the unresolved COT claims, there was never any intention to honour the commitment made to Senator Barnaby Joyce in return for his vote to privatise Telstra.

A number of internal Government emails are attached to my letter to Ms Ross.  The attachments show the rights of the claimants were not considered at all and, once again, the COT claimants’ evidence, including proof of continuing phone problems affecting their businesses, even after their arbitrations, would be buried.

The Hon David Hawker, the Speaker in the House of Representatives at the time of the alleged independent assessment process, submitted a number of claim documents to the Minister, on my behalf.  How does the Hon David Hawker feel now, knowing the claim material he provided to the Minister on my behalf wasn’t assessed on its merit?

On 28 January 2008,  I wrote to Ms Clair O’Reilly, as part of my Administrative Appeals Tribunal where ACMA was to be the respondents. Ms Jodi Ross (an ACMA advisor) advised me that Ms O’Reilly will be my FOI contact until 31 March 2008.  Because I had asked ACMA to waive all FOI charges for my latest FOI application in my 19 January 2008 letter to Ms Ross, I sent a replica of this letter, but dated 28 January 2008 to Ms O’Reilly. I attached a cheque for $75.00 as a deposit to get the FOI requests underway although I still hoped ACMA would eventually agree to waive the FOI charges.

Part of my FOI request was for ACMA (as the custodians of Telstra’s FOI documents) after Telstra had been fully privatized. My FOI request to Ms Ross and Ms O’Reilly was for access to the Ericsson AXE fault information which Telstra had originally prepared back in 1993/94.

In Chapter Seven of the AUSTEL COT Cases Report, dated April 1994, AUSTEL notes my business and a number of other COT businesses suffered major network problems associated with Ericsson AXE equipment. At point 7:40, when discussing my AXE Ericsson problems, it notes:

“AUSTEL recently became aware that Telecom (Telstra) had prepared an internal document on the subject of this AXE fault and on 21 March 1994 sought a copy from Telstra.”

Since this is in a government-prepared report, Telstra would have been duty-bound to provide this AXE report to AUSTEL. It is clear from AUSTEL’s secret findings, because of the damaging nature of the findings contained in it, that AUSTEL had obtained damning information from somewhere. This information would not only have proved to the arbitrator my claims were valid (had it not been concealed from him during my arbitration), but the arbitrator would also have had to investigate Telstra’s ongoing use of faulty Ericsson equipment (which was still being in use during the COT arbitrations). I only received my copy of AUSTEL’s Adverse Findings in November 2007, as the cover page shows.

On the receipt of this document and realising that AUSTEL had requested the AXE report from Telstra in March 1994, I, too, sought this document during my two 2008 and 2011 Administrative Appeals Tribunals, but to no avail. AUSTEL (now ACMA) would not release it, even after senior AAT member Mr G Friedman suggested the government solicitors, as a show of good faith, provide to me free of charge all of my ACMA documents sought under various FOI requests.

Why were ACMA and its government lawyers afraid to release my Ericsson AXE FOI request?

Commentary:

In my 2008, Administrative Appeals Tribunal hearing (the respondents were ACMA) I wrote a number of briefs one stating:-

“My involvement in this DCITA assessment process in 2006 cost me quite a few thousand dollars and it turned out to be a sham anyway, as can be seen by the attached copy of an email sent by Senator Coonan’s advisor (David Lever) to the TIO (John Pinnock) on 21st December 2005, noting that: ‘The assessment will focus on process rather than the merits of claims, including whether all available dispute resolution mechanisms have been used.’ …”

“The Federal Liberal Government clearly misled Senator Joyce in a deliberate move to secure his vote so they could pass the legislation required for the privatisation of Telstra but, once this aim had been achieved, Senator Coonan executed a ‘back-flip’ on the Government’s commitment to Senator Joyce. Mr Lever’s email is quite clear – neither he nor the Minister ever had any intention of honouring the commitment giving to Senator Joyce.”

“The ACMA, the TIO and DCITA all know that Telstra relied on fundamentally flawed and manufactured reports to support their defence of my arbitration claim, but this evidence was not referred to the relevant authority.”

“The negation of these Government guarantees is an enormous indictment against Australian democracy.”

While I was participating in the DCITA 2005/2006, Senator Helen Coonan wrote to David Hawker MP, Speaker in the House of Representatives, on 3 November 2006 stating:

“Thank you for your representation of 17 August 2006 on behalf of Mr Alan Smith regarding Mr Smith’s allegations that Telstra monitored his phone calls and emails during an arbitration process with Telstra. The interception of emails and monitoring of phone calls is an offence under the Telecommunications (Interception and Access) Act 1979. Mr Smith should consider his dispute through the dispute resolution bodies, including his State Office of Fair Trading, the Competition and Consumer Commission, the Australian Communications and Media Authority state, and the courts.”

Following the Hon Senator Helen Coonan’s advice, I contacted Consumer Affairs Victoria (CAV) through an advisor, who also assisted me in preparing a claim to be provided to a barrister for the CAV. From October 2007 through to late-2008, this un-named advisor, a once very high-ranking Victorian police officer, had a number of discussions with this barrister, who then proceeded to assess our various claims.

The barrister appeared overjoyed that I was able to provide evidence of faxes leaving the Sir Owen Dixon Chambers (the legal hub of Melbourne) being intercepted before they finally reached their intended destination. The barrister was also thrilled to hear that neither the TIO, nor Telstra, ever returned to me the evidence I provided confirming faxes left the Crown casino complex arrived at my Cape Bridgewater business, even though they were not intended for me. Five years after the CAV came into possession of this evidence, it was returned to me in a state of disarray that seemed to me to indicate it had been investigated. Like the IAMA however, the CAV never provided a finding.

Following the Hon Senator Helen Coonan’s advice, I contacted all of the government agencies nominated by the senator, including the TIO’s office, and all declined to investigate my claims.

It became evident there was no one in Australia prepared to tackle Telstra regarding its unethical conduct, prior and during the COT arbitrations.

I received a letter, dated 17 May 2007, from Senator Coonan, stating:

“I have now made both formal and informal representations to Telstra on behalf of the CoTs. However, Telstra’s position remains that this is a matter most appropriately dealt with through a Court process. Telstra is not prepared to undertake an alternate means of pursuing this matter. …

“I also appreciate the depth of feeling regarding the matter and suggest you consider whether court proceedings may be your ultimate option.” (See DCITA Evidence File 6)

Surely it was Senator Coonan’s responsibility, as the Minister for Communications, Information Technology and the Arts, to initiate an official enquiry into WHY, both during and after the COT arbitrations, Telstra continued to intercept in-confidence documents leaving my office (or residence), AND the offices of various senators AND the Commonwealth Ombudsman’s office? The Australian Federal Police were also reluctant to bring charges against Telstra during my 1994/1995 arbitration process. The Scandrett & Associates Pty Ltd report discusses this COT document fax-interception issue (see Open Letter File No/12 and File No/13).

A secondary fax machine, installed in Telstra’s network during the arbitration process, intercepted numerous in-confidence documents. This illegal interception of legal in-confidence documents should have been investigated during the arbitration processes when these illegal acts were first discovered. Senator Coonan, writing to me on 17 May 2007 – 12 years after the AFP declined to help me, and suggesting I take Telstra to court in relation to the same issues, just provides even further evidence of the undemocratic and uncaring way in which the COT cases have been treated by their elected government ministers.

Chapter Nine

The ninth remedy pursued

Transcripts from my AAT hearings (respondents ACMA) on 3 October 2008 (No V2008/1836) shows my claims have not been seen as vexatious or frivolous by some government agencies.

When it became evident that the new owners of my business along with me at my residence (next door) that we were both still losing faxes in December 2007, I sort documents from both Telstra and ACMA under FOI. This was to be my last attempt to resolve these long outstanding lost document issues which DCITA promised Senator Barnaby Joyce in 2005 (see above) they would investigate as part of my DCITA assessment process. This failure by the DCITA (which after all was the government) to investigate why eleven years after my arbitration and my now sold business was still experiencing the same ongoing telephone and faxing problems that first brought me to arbitration in 1994 I contacted a Brian Hodge, a suggested telecommunications expert so as I could provide his findings to the government. A cost of $15,000.00 plus.

After viewing the Cape Bridgewater Holiday Camp BCI/Ericsson NEAT testing results and the Cape Bridgewater Holiday Camp Arbitration related Service Verification Test results and the CCAS data dated 29 September 1994 (see Arbitrator File No/110), Brian Hodge (B Tech, MBA, B.C. Telecommunications), on 27 July 2007, prepared a report. On page 22, he states:

“It is my opinion that the reports submitted to Austel on this testing program was [sic] flawed, erroneous, fictitious, fraudulent & fabricated, as it is clear that no such testing has taken place as Telstra’s own call charge system DOES NOT record any such activities. Therefore the results are flawed or did not occur.” (See Main Evidence File No 3)

Mr Hodges concluded Telstra fabricated their reports about the many ongoing telephone problems still affecting the holiday camp customer access network CAN as late as November 2006. Many of these problems were caused by moisture affecting both the copper-wire and optical fibre joints in the CAN. These problems were so bad that, in late 2006, Telstra actually had to disconnect the Cape Bridgewater Holiday Camp from the fibre network and return it back to the already-corroded copper-wire network (see Open Letter File No/23).

In my 157-page Statement of Facts and Contentions dated 26 July 2008, which I provided to Mr Friedman and ACMA, I clearly defined how, for reasons unknown, AUSTEL, and later ACMA, did not conduct themselves in a properly transparent manner. This behaviour included allowing Telstra to support their arbitration defence by using deficient Ericsson NEAT Cape Bridgewater test results that AUSTEL (now ACMA ) knew were grossly deficient  – long before they used them. It is also clear from the same Statement of Facts and Contentions that I highlighted Telstra’s use of the sanitised April 1994 AUSTEL Report instead of the later, and more adverse, AUSTEL findings (against Telstra). that eventually resulted from AUSTEL’s full investigation into my matters, and that I explained how this severely disadvantaged my March/April 2006 submission to the Department of Communications, Information Technology, and the Arts. The financial cost of preparing that 2006 submission came to more than $20,000, which was entirely a waste of money, as I did not receive a copy of AUSTEL’s Adverse Findings until November 2007.

If I had received those findings before the DCITA government-assessment process, I would have been able to prove to the DCITA assessors my claims were valid..

Transcripts from my AAT hearings (respondents ACMA) on 3 October 2008 (No V2008/1836) and 26 May 2011 (No 2010/4634) show I maintained both my Freedom of Information applications to ACMA should be provided free of charge, in the public interest, including all of the requested information both Telstra and AUSTEL withheld during my government-endorsed arbitration process. Senior AAT member Mr G D Friedman considered both these AAT hearings and it is now apparent that Mr Friedman was unaware that the government solicitors (AGS) and ACMA based their defence of my claims on the inaccurate DCITA COT archival documents, including the sanitised public AUSTEL COT report released in April 1994. Neither document includes the true (and very adverse) findings that AUSTEL had originally reached in relation to Telstra’s dealings with me (see AUSTEL’s Adverse Findings).

“Let me just say, I don’t consider you, personally, to be frivolous or vexatious – far from it.

“I suppose all that remains for me to say, Mr Smith, is that you obviously are very tenacious and persistent in pursuing the – not this matter before me, but the whole – the whole question of what you see as a grave injustice, and I can only applaud people who have persistence and the determination to see things through when they believe it’s important enough.”

And, in 2008, Darren Lewis wrote to the Federal Magistrates Court stating:

“I was advised by Ms McCormick that the Federal Magistrates Court had only received on 5th December 2008 an affidavit prepared by Alan Smith dated 2 December 2008. PLEASE NOTE: I originally enclosed with Alan Smith’s affidavit in the (envelope) overnight mail the following documents:

  1. Two 29 page transparent s/comb bound report titled SVT & BCI – Federal Magistrates Court File No (P) MLG1229/2008 prepared by Alan Smith in support of my claims that I had inherited the ongoing telephone problems and faults when I purchased the Cape Bridgewater Holiday Camp
  2. Two s/comb transparent bound documents titled Exhibits 1 to 34
  3. Two s/comb transparent bound documents titled Exhibits 35 to 71 (the attached 71 Exhibits was enclosed in support of Alan Smith’s 29 page report);
  4. Three CD Disks which incorporated all of the submitted material.

“On learning from Ms McCormick that the information discussed above in points 1 to 4 had not been received by the Federal Magistrates Court I again had a stress attack seizure, a problem I have been suffering with for quite some time due to the predicament I now find myself in and the disbelief that once again my mail has been intercepted. I have attached herewith dated 3rd December 2008, a copy of the Australia Post overnight mail receipt docket numbers SV0750627 and SV0750626 confirming the total cost to send the above aforementioned information was $21.80. I am sure Australia Post would confirm that a large amount of documents would have been enclosed in these two envelopes when they left Portland.” (See My Story Evidence File 12-A to 12-B)

Australia Post will not charge any postage fee for an overnight parcel unless they stamp and retain it. Since neither of these parcels arrived at their proper destination with all of the information originally enclosed, those documents must, therefore, have been ‘lost’ between the Portland Post Office and the Magistrates Court.

As I have reported throughout this webpage numerous Telstra COT related arbitration documents (like those lost on route to the Federal Magistrates Court in December 2008) were also lost during 1994/95 on route to the arbitrator hearing my case.

As Darren’s letter shows, I helped him prepare these reports two in his bankruptcy appeal against the Australian Taxation Office (for back taxes) using my own evidence that the Telstra Corporation, knowingly submitted two false and fundamentally flawed Cape Bridgewater Ericsson testings results to the arbitrator during my arbitration, to deliberately mislead the arbitrator into believing that there were no more ongoing phone problems affecting my business, when the Ericsson faulty equipment used in that testing had not proved those findings at all.

Chapter Ten

The tenth remedy pursued 

This remedy pursued via Consumer Affairs Victoria (CAV) commenced in October 2007, before my first 2008 AAT hearing and went through to at least 2009.

Following the Hon Senator Helen Coonan’s advice, I contacted Consumer As Affairs Victoria (CAV) through an advisor, who also assisted me in preparing a claim to be provided to a barrister for the CAV. From October 2007 through to late-2008, this un-named advisor, a once very high-ranking Victorian police officer, had a number of discussions with this barrister, who then proceeded to assess our various claims.

The barrister appeared overjoyed that I was able to provide evidence of faxes leaving the Sir Owen Dixon Chambers (the legal hub of Melbourne) being intercepted before they finally reached their intended destination. The barrister was also disturbed to hear that neither the TIO nor Telstra, ever returned to me the evidence I provided confirming faxes left the Crown casino complex arrived at my Cape Bridgewater business, even though they were not intended for me. Five years after the CAV came into possession of this evidence, it was returned to me in a state of disarray that seemed to me to indicate it had been investigated. However, Like the Institute of Arbitrators Mediator Australia (IAMA) see following this chapter never provided a finding either.

Following the Hon Senator Helen Coonan’s advice, I contacted all of the government agencies nominated by the senator, including the TIO’s office, and all declined to investigate my claims.

It became evident there was no one in Australia prepared to tackle Telstra regarding its unethical conduct, prior to and during the COT arbitrations, or its use of known faulty Ericsson exchange equipment.

Since back in 2003, a well-respected, ex-senior-Victorian Police officer, a recipient of the Order of Australia, has been attempting to help me to find a resolution to my 1994 arbitration issues and, during 2007, still on behalf of me but at the request of the Government’s most senior barrister, this same ex-police officer convened a meeting, which included me, in a restaurant just walking distance from the offices of the Victorian Government Consumer Affairs Victoria (CAV).  The barrister and this police officer were already known to each other professionally but the barrister had been prompted to request this particular meeting as a result of some preliminary COT Case evidence that he had received.

At that meeting, the barrister stated words to the effect that the CAV had been waiting and hoping – for years – to be able to collect exactly this type of evidence because it so clearly proved (see Australian Federal Police Investigations page and Open Letter File No/12, and File No/13, beyond all doubt, what they had suspected for years: that certain powers to be had access to privileged documents which had been faxed through Telstra’s network between the various parties during litigation processes.  At the same time, the barrister also expressed serious concerns in relation to what he had already learned in relation to the way that, during my Arbitration process, Telstra had openly used falsified reports, had clearly authorised false witness statements and had been able to get away with making, and then actually carrying out, serious threats against claimants during a legal arbitration process that was being conducted in the State of Victoria.

After seeing just some of the COT evidence, and then being told that there was more, similar evidence that was still being collated, the barrister immediately noted that whatever could be provided to the CAV would definitely be investigated.

A short time later, in October 2007, the same ex-police officer personally hand-delivered, to Consumer Affairs Victoria, thirty-two separate, spiral-bound volumes of evidence and, within a couple of weeks, I was asked (again via the ex-police officer) to copy all thirty-two volumes of this evidence onto a CD (a job that actually took me a full two days to complete).  I was told that this would help to speed up the then-ongoing CAV investigation.

More than two years later that CD was returned to me and, so far (i.e. in 2021), the Department of Justice in the State of Victoria has continued to refuse to release any findings based on that material.  This has now led to all that material gradually being added to our website, absentjustice.com, so that the general public can decide for themselves whether I was right to bring this evidence to the Victorian Government’s attention.

The barrister was also concerned that Telstra had used falsified reporting (see Telstra’s Falsified BCI ReportTelstra’s Falsified SVT Report and Tampering With Evidence) and made false witness statements (see Summary of events) as well as threatening claimants during arbitrations that were conducted in the state of Victoria (see Senate Evidence File No 31).

You can view some of the types of exhibits provided to the CAV during their two-year-plus investigation by clicking on CAV Part 1, 2 and 3, now collated on the absentjustice.com website, and form your own opinion as to whether the State of Victoria Department of Justice should have made a finding in 2007 regarding these very serious issues. While some of these numbered CAV exhibits are dated well past the period of that investigation and bear the CAV inscription, they were collated during 2011, when I introduced further evidence to the Department of Justice.

It is clear from exhibits AS-CAV 814, 815 and 816 (see AS-CAV 790 to 818) that the Victorian Department of Justice in 2011 would not investigate evidence of facsimiles that were intercepted in the State of Victoria during litigation/arbitration.

After being told more evidence was being collated, the barrister asked for all evidence to be provided for CAV to investigate. This ex-senior Victorian police officer personally submitted Alan’s 32 separate spiral-bound volumes of evidence to CAV. Within a couple of weeks, Alan was advised via this ex-senior Victorian police officer that CAV was investigating and requested all 32 separate volumes to be supplied on a CD (compact disc). More than two years after CAV said it was investigating this material, the evidence was returned and so far, in 2020, the State of Victoria Department of Justice has declined to make a finding on that material.

Chapter Eleventh 

The eleventh remedy pursued 

The Hon Michael D Kirby AC, CMG

During June and July of 2009 which was now had become my eleventh remedy pursued, I wrote to The Hon Michael D Kirby AC, CMG, who was then the President of the Institute of Arbitrators Mediators Australian. I raised the issue of John Rundell (the Arbitration Project Manager), allowing Lane Telecommunications (the TIO-appointed arbitration technical consultant) to assess my arbitration claim and not the principal technical officer Paul Howell from Canada. I provided information on a CD, along with an abundance of documented evidence, to the IAMA proving beyond all doubt (see Prologue/Chapter One to Three) that Mr Rundell had attacked my credibility and character using false statements to stop the first 1996 Institute of Arbitrator Australia from investigating my valid claims as well as assisting Telstra (the defendants) to minimize their liability. The CD includes some 1,460 copies of original exhibit documents. These documents are now available to download from CAV Part 1, CAV Part 2 and CAV Part 3.

The Institute of Arbitrators & Mediators Australia (IAMA) replied to me after I had provided the office (on 2 July 2009) with fresh evidence confirming the arbitrator did not conduct my arbitration according to the agreed ambit of the Commercial Arbitration Act 1984. I also provided evidence showing the previous Arbitration Project Manager to my arbitration, appeared to also be the current treasurer of the Melbourne Chapter of the IAMA. I alerted the IAMA of this because if it was the same person then the IAMA should be aware of the fact that this person knowingly misled and deceived a proposed investigation into a number of my valid claims raised by me with the Telecommunications Industry Ombudsman. In his letter to me, the then president of the IAMA, The Hon Michael D Kirby AC, CMG advised:

“In accordance with established procedure, I have referred the complaint to the Ethics and Professional Affairs Committee of the Institute.

“In due course, you will be informed following this reference.” (See Burying The Evidence File 13-A)

Within two days of receiving this letter, I received a telephone call from the CEO of the IAMA who explained that the IAMA ethics and professional affairs committee would investigate these fresh allegations and would notify me of their findings. I advised the CEO that in 2002, the IAMA began investigating similar complaints concerning the same arbitrator, but returned my documents without bringing down a finding. The CEO confirmed this would not be the case now. I deduced, from the CEO’s tone, that he had read the damning evidence against the arbitrator that had prompted the president of the IAMA to send the above letter of 9 July 2009.

I personally provided 21 claim documents to the assistant of the IAMA CEO and stated in my letter:

“My letter to you on 16th July advised that the following documents would be hand-delivered to you. These reports are now attached for your information.” (Burying The Evidence File 13-B to 13-C)

I forwarded many submissions to the IAMA ethics and professional affairs committee, which comprises either ex-judges or qualified lawyers who should have been concerned at the evidence I provided. It appears they were not interested in assessing evidence showing one of their own had breached more than only his duty of care of a claimant in an arbitration process. I showed that the administrator of the arbitration process alerted the government on 26 September 1997 that “most significantly, the arbitrator had no control over that process, because it was a process conducted entirely outside the ambit of the arbitration procedures” (see page 99 COMMONWEALTH OF AUSTRALIA – Parliament of Australia) ??). This initially seemed to worry the CEO and he telephoned me to confirm they would investigate my allegations against the arbitrator. However, the IAMA Ethics and Professional Affairs Committee have still not brought down a finding with regard to this information or my other 21 submissions, regardless of their advice to me in five different emails that they were investigating my matters. One of those five emails, sent at 12:50 pm on 21 October 2009, states:

“Presently, IAMA does not require this further documentation to be sent. However, the investigating persons will be notified of these documents and may request them at a later date.” (See Burying The Evidence File 13-B to 13-C)

On 27 November 2009, I sent a further email to the secretary of the IAMA’s CEO, advising him that I could provide solid evidence of the arbitrator’s previous role as Mr Schorer’s legal advisor during a previous Telstra Federal Court matter. The arbitrator was clearly in error not to have declared this primary conflict of interest before he accepted the position, particularly when the company he was a partner in had also been Mr Schorer’s business advisors.

At 2.00 pm the same day, I received an email from the secretary of the IAMA stating: “Your email has been forwarded to the CEO. Regards – Richard.”

17 February 2011: I wrote to the Hon Michael D Kirby AC CMG stating:

“I am now writing to you because I have twice written to Mr Crowley in late 2010, asking if he could let me know when the IAMA Ethics and Professional Affairs Committee might hand down their findings in relation to my matters, or at least advise me whether or not the IAMA believe I should continue to provide them further material when it becomes available under FOI.” (AS 719)

30 July 2009: According to this letter, from Graham Schorer (COT spokesperson) to Paul Crowley, attached to a statutory declaration and a copy of a letter dated 4 August 1998 from Graham to me, Graham had a phone conversation with the arbitrator early in 1994 regarding lost COT faxes. During that conversation, the arbitrator explained, in some detail that

“Hunt & Hunt [The company’s] Australian Head Office of was located in Sydney and [the company] is a member of an international association of law firms. Due to overseas time zone differences, at close of business, [the company’s] Melbourne’s incoming facsimiles are night switched to automatically divert to Hunt & Hunt Sydney office where someone is always on duty. There are occasions on the opening of the Melbourne office, the person responsible for cancelling the night switching of incoming faxes from the Melbourne office to the Sydney Office, has failed to cancel the automatic diversion of incoming facsimiles.Burying The Evidence File 13-H.

On 29 November 2009, I wrote to the CEO of the IAMA regarding fresh evidence received from the office of the lawyer who represented COT spokesperson Graham Schorer in his earlier Federal court action against Telstra between 1990 and 1992. This now-deceased lawyer replaced Graham’s initial lawyer, who was appointed as the arbitrator for the first four COT arbitrations, including both Mr Schorer’s and my arbitration. The arbitrator, therefore, assessed the same documents and complaints he had previously been privy to when he was acting as Mr Schorer’s legal counsel between 1990 and 1992. This constitutes a clear case of conflict of interest. This is the same arbitrator the IAMA investigated in 2009.

The crux of the matter, discussed in my letter to the IAMA ethics and professional affairs committee relates to the events of 12 May 1995, after the arbitrator wrote to the TIO warning him that the arbitration agreement he used throughout my arbitration was not a credible agreement and should, therefore, be revised for the remaining three claimants.

This vital letter from the arbitrator was yet another document the TIO and the arbitrator concealed from me during my appeal period. My letter explained that two of the other three COTs were allowed an extra 13 months longer to prepare their claims than I was allowed. The arbitrator who, don’t forget, had previously been Mr Schorer’s business and legal advisor for many years, allowed Mr Schorer a full 36 months longer to prove his case against Telstra than I was allowed.

It is clear from the five emails dated between 20 and 23 October 2009, from the IAMA Ethics and Professional Affairs Committee that they were certainly investigating my claims against Dr. Hughes (see Burying The Evidence File 13-E) It is also clear from the next email received from the IAMA dated 23 November 2009 (see Burying The Evidence File 13-D) that the IAMA Ethics and Professional Affairs Committee were still supplying claim material to their investigators.

After not hearing from the IAMA between 23 November 2009 to 17 February 2011, I wrote to the Hon Michael D Kirby AC CMG asking him to investigate why I had no proper advice as to how the IAMA was progressing with their investigations into my matters. It had cost close to $16,000.00 in secretarial and administerial fees to submit my claim to the IAMA. On the 21 February 2011 I received a letter from The Hon Mr Kirby stating:

“Thank you for your letter of 17 February 2011, just received. 

When I wrote to you in July 2009, I served as President of the Institute of Arbitrators & Mediators Australia. In June 2010, I stepped down from this position. Mr Warren Fisher was elected in my place. 

A possible explanation for your not hearing from Mr Paul Crowley is that, not long after my retirement as President, he resigned and Chief Officer of IAMA.I will send your letter and the attachment to Mr Fischer and request that he respond to your enquiry.” (See Burying The Evidence File 13-F)

6 March 2011: I wrote to Warren Fischer, president of the IAMA, noting:

“I decided to update my previous AAT Statement of Facts and Contentions which the Hon Michael Kirby provided to you therefore, I thought it appropriate you should also receive (see attached) the new updated version also dated 9th February 2011. I have supplied this document because it appears that the IAMA Ethics and Professional Affairs Committee have still not reached their findings on my matters and because of those matters will be shortly discussed in the public arena once I attend the AAT Conference hearing”. (See Burying The Evidence File 13-A to 13-I)

21 March 2011: Warren Fischer wrote (IAMA) to me noting:

“I confirm receipt of your correspondence dated 22 February 2011 (forwarded to me by the Hon Michael Kirby AC CMG) dated 28 February 2011, 6 March 2011, and 9 March 2011. I advise that I have passed all that correspondence to our Ethics and Professional Affairs Committee for reply to you.” (See Burying The Evidence File 13-A to 13-I)

9 May 2011: I received rather a strange letter from Warren Fischer (IAMA) noting:

“I have to hand your correspondence dated 2 May 2011. I observe that in that correspondence you state that you “have some concern that the IAMA Ethics and Professional Affairs Committee has not yet responded to my claims against [the arbitrator], which was lodged in July 2009”.

“I advise that my receipt of your other recent correspondence, dated 17 April 2011 caused me to enquire of the IAMA CEO as to the status of this matter as I had understood that the IAMA Ethics and Professional Affairs Committee had concluded its deliberations and notified you accordingly.” (AS 723)

Mr Fischer’s letter is strange because, in the last week of February 2011, the Hon Michael D Kirby AC CMG (AS 717) advised him that I was waiting for a response to the IAMA investigation into my previous arbitrator’s conduct.

So why, six weeks later, did Mr Fischer to write that my letter of 17 April 2011 caused him to enquire of the IAMA CEO as to the status of this matter because he understood that the IAMA Ethics and Professional Affairs Committee had concluded its deliberations?

Between May 2011 and November 2013, I tried all reasonable avenues to have the IAMA explain why they would not bring down a finding of their investigations into my valid claims.

On 11 November 2013, the IAMA CEO notified me in writing that I should:

“… not write to the IAMA, our President, or any person connected with IAMA again on this matter. Any future letters received will be returned to you. (See Arbitrator Evidence File No/119)

Clicking on the following file entitled Discrimination including the supporting exhibits  IAMA Exhibits 1 to 39 and IAMA Exhibits 40 to 72 the reader can make up their own minds as to whether the IAMA should have made a finding on my claims.

In 2015, after putting a number of my documents up on my LinkedIn site, a number of offshore lawyers emailed me to express their shock and disbelief in relation to my situation.  One of them, a lawyer practising in the Egyptian Court in Cairo, said that he would be willing to provide his legal opinion regarding six separate areas where he believed the arbitration process had failed the first four COT claimants and so, with his permission, I then sent a copy of his two-page document to the Australian Federal Police, along with his name, although I decided not to publish his name on the website.  Since then he has notified me that I can now identify him in any manuscript I might prepare regarding the first four COT arbitrations, and I can also explain his reasons for believing that the arbitration process failed the COTs.

So, on one hand, we have two Australian Government investigations and one IAMA investigation that have all apparently ended, but not one of those three will hand down a finding.  On the other hand, an Egyptian legal advisor on LinkedIn clearly sees injustices that he is prepared to put his name to, if or when I publish my manuscript “Ring for Justice.”

The legal advice received from Alaa, my Egyptian lawyer LinkedIn contact concerning the unethical way in which he notes my arbitration was conducted has been provided to the Australian Federal Police as a testament at what Alaa see’s as an injustice.

Chapter Twelve 

The twelfth remedy pursued 

The twelfth remedy pursued ended in May 2011.

Although we address my Australian Communications Media Authority and Administrative Appeals Tribunal hearings throughout absentjustice.com, we thought it important we again highlight these two hearings at this stage of our story so you can form your own opinion as to whether I am a vexatious litigant or someone seeking the justice they were denied.

26 May 2011 (No 2010/4634) show I maintained my Freedom of Information applications to ACMA should be provided free of charge, in the public interest, including all of the requested information both Telstra and AUSTEL withheld during my government-endorsed arbitration process. Senior AAT member Mr G D Friedman considered this AAT hearing and it is now apparent that Mr Friedman was unaware that the government solicitors (AGS) and ACMA based their defence of my claims on the inaccurate DCITA COT archival documents, including the sanitised public AUSTEL COT report released in April 1994. Neither document includes the true (and very adverse) findings that AUSTEL had originally reached in relation to Telstra’s dealings with me (see AUSTEL’s Adverse Findings).

During my second AAT hearing (No 2010/4634), Mr Friedman stated:

“Mr Smith still believes that there are many unanswered questions by the regulatory authorities or by Telstra that he wishes to pursue and he believes these documents will show that his unhappiness with the way he has been treated personally also will flow to other areas such as it will expose the practices by Telstra and regulatory bodies which affects not only him but other people throughout Australia.

“Mr Smith said today that he had concerns about the equipment used in cabling done at Cape Bridgewater back in the 1990s. He said that it should – the equipment or some of the equipment should have a life of up to 40 years but, in fact, because of the terrain and the wet surfaces and other things down there the wrong equipment was used.”

During this second AAT hearing in May 2011, I again raised the telephone problems that had affected my business from before my arbitration to 1995, stressing that the arbitrator had failed to investigate or address most of those problems, and therefore allowed them to continue for a further 11 years after the end of the arbitration. Since that second AAT hearing, and as a result of Australia’s National Broadband Network (NBN) rollout, which began in mid-2011 and is still continuing today, numerous faults, just like those that I raised during my arbitration and both AAT hearings, have been found to have continued unabated; this can be confirmed by a simple internet search for “Australia NBN”.

One of the documents I provided both the arbitrator in 1994 and the AAT in 2008 and again in 2011 is a Telstra FOI (folio A00253) dated 16 September 1993 and titled Fibre Degradation. It states:

“Problems were experienced in the Mackay to Rockhampton leg of the optical fibre network in December ’93. Similar problems were found in the Katherine to Tenant Creek part of the network in April this year. The probable cause of the problem was only identified in late July, early August. In Telecom’s opinion the problem is due to an aculeate coating (CPC3) used on optical fibre supplied by Corning Inc (US). Optical fibre cable is supposed to have a 40 year workable life. If the MacKay & Katherine experience are [sic] repeated elsewhere in the network, in the northern part of Australia, the network is likely to develop attenuation problems within 2 or 3 years of installation. The network will have major QOS problems whilst the CPC3 delaminates from the optical fibre. There are no firm estimates on how long this may take. …

“Existing stocks of Corning cable will be used in low risk / low volume areas.”(See Bad Bureaucrats File No/16)

Were the citizens of Australia entitled to be advised by the Australian government, before it sold off the Telstra network, that, e.g., the aforementioned optical fibre with CPC3 coating, supplied to Telecom/Telstra by Corning Inc (USA), was installed in their area? How many people in Australia have been forced to live with a subpar phone system, i.e., a known poor optical fibre that Telstra should NEVER have installed? How many businesses have gone up against the wall due to Telstra’s negligent conduct of knowingly laying their existing stocks of Corning cable in locations that Telstra believed were low risk/low volume areas?

Chapters one to three in our Tampering With Evidence page show Telstra was also prepared to re-deplore some 450,000 faulty TF200 telephones to locations where Telstra thought moisture was non-existent. The decision-makers regarding where Telstra installed these moisture-prone phones were certainly not trained in meteorology. I doubt that Telstra or the government advised these TF200 customers when Telstra was sold off, that if they were experiencing phone problems that this was no longer Telstra’s problem or the government’s.