Crooked practices

Corrupt practices that were systemic in my government-endorsed arbitration resulted in becoming the cancer that festered my arbitration where the arbitrator who allowed this festering to continue unlanced (not addressed) was the worst possible outcome for me and my business.

 

Chapter 9

 Aftermath

Among the issues not addressed in my arbitration award was that of Telstra’s incorrect charging. Five months after my award came down, Austel visited Cape Bridgewater view the documents that had not been addressed by the arbitrator. These amounted to six bound volumes of evidence I had accumulated to support my case. The Austel people appeared to be quite stunned at the six volumes and commented that they had never seen so much evidence, presented in such detail. (In fact, over the years leading up to my arbitration, I had continually provided evidence to Austel of Telstra’s incorrect charging.) Finally, they left, taking the volumes with them.

Austel allowed Telstra to address the material in the absence of any mediator such as the arbitrator and I was given no opportunity to respond. I wasn’t even officially notified of Telstra’s response, I had to wait for an FOI document, which I received by chance in 2001. The information Telstra had provided to Austel in a letter in October 1995,-), defending itself against my itemised problems, was full of false claims. Had I been given the chance to show the comparison with my data, I could have proved this. But I was not given the chance, and Telstra’s version was privileged over mine with no further investigation. What sort of a way was this to provide justice? I was denied my legal right of challenge. The faulty billings continued.

Meanwhile the daily running of the camp was almost beyond me. Cathy was handling the work almost entirely on her own. All the marketing and promotional expertise I had built up over the years was of no help: I had no reserves of energy to call on, and more importantly, perhaps, I no longer believed any good could come of it. I was in a state of despondency, stewing on my situation. How could this be happening to me in Australia in the 1990s? Wasn’t this supposed to be a democracy? It felt like something out of Kafka.

I decided I had to do something, so for a start, I requested the return of all my claim documents (as per the rules of the arbitration), and waited with growing anger for weeks before deciding to drive to Melbourne and collect them myself in August 1995. I don’t know why I expected to have my request met at this time, in truth, I was spoiling for a fight. And indeed, my documents were not ready, the arbitrator’s secretary, Caroline informed me, and the arbitrator was not available.

I was not polite. I demanded she get my documents at once and reminded her I had put in my request three months before. ‘I am not leaving this office without those documents,’ I shouted. ‘Call the police if you want to, I don’t care. You have my property and I want it back now.’ At last a young lad appeared wheeling a trolley loaded with boxes. He asked me to sort out which were my claim documents; I simply took the lot.

It was a revelation. Among the documents were some I’d never seen before, and they were very interesting, to say the least. By the rules of my arbitration, any information supplied by one party must be automatically circulated to the other party and to the TIO’s legal counsel. Among the material I took from the arbitrator’s office that day, however, was an envelope full of documents and loose papers, none of which had ever been forwarded to me.

A letter from Telstra to the arbitrator had been sent with three attachments, letters sent between Austel and Telstra, between October and December 1994. Telstra wrote:

You will note from the correspondence that Austel has requested Telstra to provide information relating to charging discrepancies reported by Mr Smith for short duration calls on his 008 service. These issues form part of the subject matter of Mr Smith’s claim under the Fast Track Arbitration Procedure.

The simplest way forward may be for Mr Smith and Telstra and yourself to all confirm in writing that this information can be provided to Austel if this meets with your approval. 

Now, if this was the way to go, why didn’t I receive some indication of this from the arbitrator? I received no correspondence from him at all on this matter.

In its letter of 1 December 1994, Austel had indicated that other Telstra customers in the Portland area had also complained about incorrect charging on their 008 services, and Austel raises this concern in their letter of 8 December:

A major consideration in Austel’s pursuit of the issue raised by Mr Smith was the likelihood that these problems, if proved to exist, would almost certainly affect a number of other Telstra customers.

In direct breach of the rules, the arbitrator did not forward these letters to me during the arbitration. And, as I have already told, the arbitrator made no finding in his award regarding the substantial evidence of incorrect charging in my claim documents.

In a letter of 11 November 1994 Telstra told the arbitrator and Austel that it would address these incorrect charging issues in their defence. That Telstra failed to do so, and that the arbitrator permitted this, I believe constitutes a conspiracy between the arbitrator and Telstra. Further incriminating documents in this cache I had unwittingly stumbled upon, supported the notion that there was a conspiracy afoot.

Corrupt practices that were systemic in my government-endorsed arbitration resulted in becoming the cancer that festered my arbitration where the arbitrator who allowed this festering to continue unlanced (not addressed) was the worst possible outcome for me and my business.

DMR/Lanes (the arbitration technical consultants) submit their incomplete report 

Although I have addressed the discrepancies in the two varying DMR & Lane reports above, it is essentional I revisit them again: i.e.:

Among the documents inadvertently provided to me by the arbitrator’s office, I found another version of the DMR/Lanes technical report for my business. On the title page of the version I received back in April 1995, the second paragraph consists of one short sentence: ‘It is complete and final as it is.’ The second paragraph on the equivalent page of the arbitrator’s report has more to say: ‘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.’

Again, in the arbitrator’s copy (on page 3), the fourth and fifth paragraphs state:

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 Technical Report on Cape Bridgewater is complete.

This information is missing from my version of the report. Did the arbitrator and DMR/Lanes think I would forget about the billing issues if they didn’t remind me? To discover that DMR/Lanes intended to address the billing issues but mysteriously omitted this from the final version of their report just sealed my conviction that I was the victim of a conspiracy in this arbitration.

And it was here, under the heading ‘Cape Bridgewater Documentation’, I found the astonishing statement I mentioned in an earlier chapter: ‘A comprehensive log of Mr Smith’s complaints does not appear to exist.’

Were they playing games with me? I certainly had provided one! At times my life felt like one huge comprehensive log of complaints. Austel had been stunned at my volumes of evidence. I had images of my supporting documents being tossed into some ‘too-hard basket’ and I was fed up with it. Secure in their government jobs, had they any idea what we COT claimants were going through, what this meant to us?

What is so disturbing about these additions to the two conflicting DMR & Lane 30 April 1995 reports is that all 23 technical finding in each report are identical. When these two identical reports are read in conjunction with the Lane 6 April 1995 report they are likewise the same. What this shows is that Lane not only produced 99.9% of the findings in all three reports they also conveniently failed to address my ongoing billing faults. What cannot be argued after viewing the two DMR & Lane 30 April 1995 reports is that at point 3 in both: it note:

About 200 fault reports were made over December 1992 to October 1994. Specific assessment of these reports other than covered above, has not been attempted. There are 23 faults shown in both reports that were investigated, none were faults registered In the arbitrators award (findings) he notes that my claim was over a 6 and half year period from April 1988 to December 1994. This shows that DMR & Lane assessed less than two years of a six and half year claim.  To save arguing which faults which year was assessed and which was not, I again repeat as I have repeated on my webpage as well as in this book. Did Lane only assess less than a third of those faults registered because to have assessed ALL of my which I might add amounted to over 600 for the six and half years (which the government regulator agrees) was one of the worse of all of the COT Cases is because to have assessed this amount of faults Lane would have had to acknowledge the Ericsson equipment was fault ridden. It appears as thought it was best to purchase Lane and all of their computer files of all of the COT Cases complaints so that there is no record in existence of the real problems the government was soon to inherit once the National Broadband Network (NBN) went into play.    

Dr Hughes wrote to the TIO on 23 January 1996, noting:

“I enclose copy letters dated 18 and 19 January 1996 from the Institute of Arbitrators Australia. I would like to discuss a number of matters which arise from these letters, including:

(a) the cost of responding to the allegations;

(b) the implications to the arbitration procedure if I make a full and frank disclosure of the facts to Mr James.”. Open letter File No/45-D

It is confirmed from Chapter Three in our Prologue page (see below) that not only were these 24,000 documents not viewed by Dr Hughes and his resource unit it was he who refused me the extra time I had requested to submit two reports (into arbitration) which I had collated from these late received 24,000 FOI documents aware because they actually were supposed to have been freighted to Brisbane airport instead of the Portland airport 1,200 miles in the wrong direction (as we have stated below). Dr Hughes lies to Laurie James cost me dearly and continues to cost me dearly until these lies are investigated.

Most of these 24,000 FOI documents, I averaged that amount to be 17,000, were sent to Queensland after they were picked up from my office by Graham Schorer, COT spokesperson, who then had them couriered to COT Cases Ann Garms and Maureen Gillan in Brisbane Queensland. Those documents were all labelled Ann Garms; four of those manila folders were stamped, Gillan. How could Dr Hughes (the arbitrator in my case) and his arbitration resource unit have viewed 24,000 FOI documents when they were never submitted to arbitration.  

Had Dr Hughes sidestepped John Pinnock, and instead made full disclosure of the true facts surrounding my claims, the matters I am discussing on absentjustice.com would have been addressed in 1996. By reading all of Open Letter File No/51-A to 51-G and Chapters One to Four in our Prologue page, you can decide for yourself who is telling the truth concerning these late-released 24,000 alleged-read documents.

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 that 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.

As if to rub my face in my defeat, months after the arbitrator had handed down his decision in my arbitration, I was still receiving hundreds, even thousands, of discovery documents. Some of them I had requested years ago, and would have been most useful in supporting my claim, but by this time, of course, they were of no use any more.

As these documents kept arriving I found it impossible to just shut the door on the saga and walk away. I became increasingly convinced that I had been the victim of a deliberate act of sabotage, and not only in relation to obvious things like the ‘beer in the phone’ episode. Why, I wondered, did the arbitrator not make any finding regarding all the lost faxes I had reported, both before and during the arbitration process, some of which involved valuable evidence that was somehow lost in Telstra’s network, en route to the arbitrator’s office for assessment by the resource unit and Telstra’s defence unit.

How had the arbitrator not seen through Telstra’s attempt to make me appear as a drunk by saying that my fax problems were caused by alcohol. How was it not obvious to the arbitrator that Telstra wanted the faulty line to be hidden from the resource unit in case they stumbled on the truth that it was Telstra’s lines that were causing the problems?

In 2001, six years after the fact, I received from the TIO’s office a letter Dr Hughes wrote to Warwick Smith on 12 May 1995. see Open Letter File No 55-A. In this letter, the arbitrator observes that the arbitration agreement was not a ‘credible’ process to have used in my arbitration. If Warwick Smith had passed this letter on to me at the time I could have challenged the arbitrator’s findings. How could an appeal judge rule against the arbitrator’s own advice to the administrator that the rules of the agreement used in the process ‘had not allowed sufficient time for delays associated with the production of documents, obtaining further particulars and the preparation of technical reports’? It was terribly frustrating to get this documentary support too late.

However, what must be revealed in my story is the possibility that this 12 May 1995 letter was hacked [intercepted en route to my business] as the following information shows.

I use the Senate Hansard records of 20 September 1995, showing a very emotional Senator Ron Boswell discussing the injustices we four COT claimants (i.e., Ann Garms, Maureen Gillan, Graham Schorer and I) experienced during our so-called government-endorsed arbitrations, in the previous chapter. It is also most important to raise the following statement made by Senator Boswell, concerning the TIO and his annual report:

“I regard it as a grave matter that a government instrumentality like Telstra can give assurances to Senate leaders that it will fast track a process and then turn it into an expensive legalistic process, making a farce of the promise given to COT members and the inducement to go into arbitration. The process has failed these people and can never give them justice – a point confirmed by professionals deeply involved in the arbitration process itself and by the TIO’s annual report, where conclusion is described as ‘if that is ever achievable’.” (See Senate Hansard Evidence File No-1)

Senator Boswell’s statement that “a point confirmed by professionals deeply involved in the arbitration process itself and by the TIO’s annual report, where conclusion is described as ‘if that is ever achievable’,” shows, by the date of this Senate Hansard on 20 September 1995, the TIO had already condemned the arbitration process. So why did Mr Pinnock (TIO) and Dr Hughes, eight months later, conspire to mislead and deceive Laurie James concerning the truth of my claims, which were registered with the proper authority, i.e., the president of Institute of Arbitrators Australia?

Living with the knowledge that these lies were told by the very same person who actually had the power to investigate them, but did not, is mind-destroying. Also, mind-destroying for the new owners of my business who purchased my holiday camp in December 2001, is that regardless of them complaining to the Communications Minister’s office my local Federal Member of Parliament, and Mr Pinnock from very early in January 2002 to September 2006 (see Bad Bureaucrats/Chapter One and Chapter Four) they had inherited the same type of phone problems that I had suffered with since 1987, no one re-investigated what went wrong during my arbitration in order to stop the arbitrator from allowing his arbitration resource unit the extra weeks they stated was needed to complete their findings (see Chapter 1 - The collusion continues).

Why did Dr Gordon Hughes [the arbitrator to the first four arbitrations] bring down his award on my arbitration claims when he was aware:

 “…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.

Why did the arbitrator amend the arbitration agreement for the remaining three COT cases allowing those claimants thirteen more months to access their documents from Telstra (the defendants in all four arbitrations) than he allowed me?

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 (TIO) and the Federal Attorney-General has still not answered is:

Was this letter actually faxed to my office by the TIO. 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?

How could Dr Hughes even contemplate making a statement like: “…as far as I could observe, both Telecom and Smith co-operated in the Smith arbitration”, let alone decide to include it in his 12 May letter, when he and the Senate had already been warned that Telstra was threatening to withhold further relevant documents from me, simply because I had agreed to assist the Australian Federal Police with their investigations into Telstra’s unauthorized interception of my phone conversations and faxes and, even worse than that level of Telstra treachery, Telstra then actually carried out those threats?  And what about the advice that both the arbitrator and Warwick Smith had received on 18 April 1995 (see above), which stated clearly that there had been ‘forces at work’ that had ‘derailed’ my arbitration?  This 12 May statement shows that Dr Hughes was quite clearly choosing to protect those ‘forces at work’, regardless of the serious problems that created for me.

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 time stamps. 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.

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 is discussed in more depth in our Australian Federal Police Investigations page

And at worse fabricated, 

On 15 July 1995, two months after the arbitrator prematurely brought down his findings on my claim, AUSTEL’s previous General Manager of Consumer Affairs, aware that the arbitration process had not addressed my claims concerning the impracticability of CCS7 being used in the BCI testing at Cape Bridgewater. Ms Amanda Davis provided me with an open letter noting: noting:

“I am writing this in support of Mr Alan Smith, who I believe has a meeting with you during the week beginning 17 July.  I first met the COT Cases in 1992 in my capacity as General Manager, Consumer Affairs at Austel. The “founding” group were Mr Smith, Mrs Ann Garms of the Tivoli Restaurant, Brisbane, Mrs Shelia Hawkins of the Society Restaurant, Melbourne, Mrs Maureen Gillian of Japanese Spare Parts, Brisbane, and Mr Graham Schorer of Golden Messenger Couriers, Melbourne. Mrs. Hawkins withdrew very early on, and I have had no contact with her since.

The treatment these individuals have received from Telecom and Commonwealth government agencies has been disgraceful, and I have no doubt they have all suffered as much through this treatment as they did through the faults on their telephone services.

One of the striking about this group is theur persistence and enduring belief that eventually there will be a fair and equitable outcome for them, and they are to admired for having kept as focussed as they have throughout their campaign.

Having said that, I am aware all have suffered both physically and their family relationships. In one case, the partner of the claimant has become seriously incapacitated; due, I beleive to the way Telecom has dealt with them. The others have al suffered various stress related conditions (such as a minor stroke.

During my time at Austel I pressed as hard as I could for an investigation into the complaints. The resistance to that course of action came from the then Chairman. He was eventually galvanised into action by ministerial pressure. The Austel report looks good to the casual observer, but it has now become clear that much of the information accepted by Austel was at best inaccurate, and at worst fabricated, and that Austel knew or ought to have known this at the time.” 

After leaving Austel I continued to lend support to the COT Cases, and was instrumental in helping them negotiate the inappropriately named "Fast Track" Arbitration Agreement. That was over a year ago, and neither the Office of the Commonwealth Ombudsman nor the Arbitrator has been succsessful in extracting information from Telecom which would equip the claimants to press their claims effectively. Telecom has devoted staggering levels of time, money and resources to defeating the claiams, and there is no pretence even that the arbitration process has attemted to produce a contest between equals.

Even it the remaining claimants receive satisfactory settlements (and I have no reason to think that will be the outcome) it is crucial that the process be investigated in the interest of accountabilty of publical companies and the public servants in other government agencies. 

Because I am not aware of the exact citrcumstances surronding your meeting with Mr Smith, nor your identity, you can appriate that I am being  fairly circimspect in what I am prepared to commit to writing. Suffice it to say, though, I am fast coming to share the view that a public inquiry of some discripion is the only way that the reasons behind the appalling treatent of these people will be brought to the surface.

I would be happy to talk to you in more detail if you think that would be useful, and can be reached at the number shown above at any time. 

Thank you for your interest in this matter, and for sparing the time to talk to Alan. 

Playing politics

David Hawker, my local federal MP, had supported me, and the issue of rural telecommunication services, since 1992. In 1995, before the Liberal government came into power, he arranged for some of the COT members to meet with the then Shadow Minister for Communications, Senator Richard Alston, in his office in Canberra.

Senator Alston had taken an interest in the COT cases from very early on, and in this meeting he was supportive of my claims regarding the unethical conduct by various parties associated with the administration of my arbitration, including my claims that Telstra had been listening in to my private phone calls during the arbitration. Senator Alston had been under the same illusions as the COT four that the arbitration would be a non-legalistic and fast-tracked process. He expressed his concern that FOI discovery documents showed that Telstra knowingly used flawed and fabricated test results to support their defence of my claim, and that they had allowed the 10 November 1993 flawed BCI Addendum Report on Cape Bridgewater to remain in the public domain.

After the Coalition victory in 1996 Senator Alston became the Hon. Senator Richard Alston, Minister for Communications and the Arts. At this point his office asked me to supply them with a full report on my claims and the allegations I had made against Telstra over the years, along with any allegations I had about the conduct of the arbitration. I set about producing the report they needed: just to produce a chronological listing of events took 82 pages which I bound into a book, supported with a separate volume of attachments indexed to the main document. A copy of this report was sent to Senator Alston and another to the Commonwealth Ombudsman’s office.

Regrettably, since Senator Alston was appointed to a position which gave him the power to instigate a full inquiry into the many issues raised by the COT cases, nothing more happened in this matter beyond a letter of acknowledgement in September 1996.

The Exicom T200 and beer-in-the-phone reprise

Another FOI document received too late proved that Telstra was well aware of the moisture problems associated with the Exicom T200 that resulted in billing faults exactly such as I had experienced, faults that my arbitrator and Telstra refused to address in my arbitration. This same document, an internal memo, suggests that Telstra re-deployed phones they knew were faulty and returned them back into service to other unsuspecting customers, because they would ‘still have to be deployed in areas of lower moisture risk.’ The memo is not dated, but other information in it puts it around 1993–94.

Given that these phones were known to malfunction in moisture-prone areas, I cannot fathom why Telstra thought they would work in a coastal area such as Cape Bridgewater. Or why, when I began to complain of the billing problems they didn’t simply say, ‘Oh, sorry Mr Smith, this is not the right phone for you.’ What a lot of trouble that would have saved.

I wonder how many of these faulty T200 phones are still being used by unsuspecting Telstra customers in places of high moisture content, for instance, fish and chip shops, bakeries, industrial kitchens, or heated swimming pools etc. — and how many of these customers are incorrectly charged for calls they did not receive, as I was for so long.

I also wonder about the legality of redeploying products known to be faulty — though it seems the Telstra Corporation is exempt from the Trade Practices rules covering other corporations and businesses in Australia.

After so many let downs, imagine my happiness when, in November 1995, six months after the arbitrator handed down his award, I received in another bundle of FOI documents, the laboratory reports I mentioned in Chapter Seven, in which Telstra carried out tests on my T200 fax/phone at their laboratory to see how long beer would stay wet inside the phone casing. To read that Telstra laboratory staff themselves had proved that beer could not have stayed wet and sticky for 14 days (the time between the phone leaving my premises and it arriving at the laboratory) was incredibly exciting.

It was already evening time, 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. Caught on the back foot and thinking it likely the arbitrator had discussed at least some aspects of my arbitration with his wife, I imagined that if she knew who was calling, she might be afraid I was going to be troublesome. On the spur of the moment, I gave her another name, one I knew the arbitrator was familiar with — that of the FHCA project manager. According to my telephone account, this call was made at 8.02 pm on 28 November 1995 and it lasted 28 seconds.

Later, I told the TIO about my exciting find, and how I had I had tried to contact the arbitrator to pass on the news, explaining also why I gave Mrs Hughes the FHCA project manager’s name instead of my own, so as not to alarm her. 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 wanted to take it further.

The Institute of Arbitrators

Since the TIO would not act, it was time to find some other way of addressing the unethical conduct of Dr Hughes, the arbitrator. On 15 January 1996 I addressed my complaints to Laurie James, President of the Institute of Arbitrators Australia.

I had a number of complaints regarding the fact that the arbitrator had not operated within the ambit of the Arbitration Act. I provided evidence that the TIO and Telstra had also met in private, without a representative of the COT group, during the planning stages of our arbitration. The arbitrator and his resource unit also met with Telstra in private, before we signed for the arbitration. These meetings broke the rules of arbitration, and we will never know what was discussed in them. We can assume, however, that it was not to the advantage of COT members.

Also, when the TIO and his legal counsel began to pressure the COT four into abandoning the commercial process (the FTSP) and signing for arbitration (the FTAP), no-one informed us that the appointed arbitrator was not graded by the Institute of Arbitrators. I learned this from Mr Nosworthy, President of IAMA in 2001, who told me Dr Hughes was not a graded arbitrator at the time of my arbitration. In fact, while he was engaged with the COT cases, Dr Hughes sat for, but failed, his grading examination.  Technically, he was not qualified to handle any arbitration, let alone one that was so complex and far-reaching as ours. This information was relayed to Senator Alston and the TIO, but to no effect, and no-one has yet satisfied me as to why an unqualified arbitrator was chosen to oversee such a vast process and why he was permitted to continue, after failing his examination.

Mr James worked quickly, for on 23 January 1996 Dr Hughes wrote to John Pinnock (the new TIO) under the heading ‘Institute of Arbitrators – Complaint by Alan Smith’ saying:

I enclose copy letters dated 18 and 19 January 1996 from the Institute of Arbitrators. I would like to discuss a number of matters which arise from these letters, including

1. the cost of responding to the allegations
2. the implications to the arbitration process if I make a full and frank disclosure of the facts to Mr James. 

I would give a lot to see what that ‘full and frank disclosure’ might consist of. I couldn’t ask at the time, however, as I did not get a copy of this until 2001. What I did get next was something shocking and upsetting.

In February 1996 I received a letter from the President of the Institute of Arbitrators, Mr Laurie James, with a copy attached of a letter he had received from the TIO. The TIO had written to Mr James to say that my complaints about the arbitrator were ill-founded. The TIO backed up this assertion by relating a very different version of the events I have just described. In his letter, the TIO stated falsely that I had rung the arbitrator’s home at 2 o’clock in the morning. He also told Mr James that I had given a false name.

With its implications that a man who rang anyone at the socially unacceptable time of 2 am was possibly unstable, or a threat to the peace, this seemed like a gratuitous attempt to blacken my name. Why else would the TIO take an innocent incident and try to turn it into something sordid? The TIO is supposed to be unbiased. He must have known that his correspondence would bring my character into question. And if he was prepared to do this in my arbitration, what about the arbitrations still going on for other members of the COT group. Who was he actually supporting — the Australian public or the telecommunications carriers?

The TIO had also forwarded a copy of this letter to the arbitrator, who would have asked his wife for her version of the incident. I believe that, all things being equal, his wife would confirm that I rang at 8 pm and that I was perfectly polite. But who knows, perhaps the arbitrator and the TIO cooked up the 2 am version between them.

Mr James was not inclined to follow through with my complaint, so the TIO had achieved his aim.

So that was the consequence when I thought I had found dynamite with the confirmation that someone within Telstra had tampered with my Exicom T200 phone and that Telstra staff had perjured themselves in Statutory Declarations defending their beer-in-the-phone story.  

I had thought that anyone interested in justice would feel no option but to review my case. Instead, the person whose position it was to address this, chose instead to try to discredit me. And it was not the only attempt. I am not sure who stooped lower, the TIO or the arbitrator, as the concluding part of this story illustrates.

It was not until 2001, five years after the event, that I received from the TIO, through FOI, a copy of a letter dated 13 February 1996, written by John Rundell of the Technical Resource Unit to Mr Pinnock (TIO), which sheds some light upon the fate of my complaint to the Institute of Arbitrators. This is the story of the second serious attempt to discredit me.

In the letter, Mr Rundell acknowledges that the FHCA financial report was incomplete (‘… the final report did not cover all material and working notes’  but he then goes on to make an astonishing assertion that the Victoria Police Brighton CIB was about to question me in relation to criminal damages to his property.

In fact, the Victoria Police Brighton CIB never considered me a suspect in relation to any crime, and letters held by the TIO’s office confirm this. Nonetheless, John Rundell’s letter to the TIO implied that I was about to be charged for criminal damage. What is more, those false allegations were then sent on to a third party, Dr Hughes (the arbitrator), who then attached a copy of the letter in his response Mr Laurie James, President of the Institute of Arbitrators Australia, who was investigating my complaints.

At the very least this constitutes massive defamation of character. And it very likely prejudiced Mr James against my case. Of course, I had no idea of the existence of this letter at the time. Over the years since I became aware of this defamation I have made continuous complaints to the TIO and relevant government ministers. None of this has resulted in any apology or retraction, but that should not surprise the reader.

Senate Estimates

This has been a highly legalistic arbitration: by June 1997, Telstra had paid more than 18 million dollars to defend itself against the COT claimants. What chance did we have when we had to rely on Telstra documents to support our claims and the person in charge of distributing those documents also sat on the council of the TIO?

During question time at a Senate meeting on 24 June 1997, Telstra was questioned regarding its tardy supply of FOI documents to the COTs. By this time the Commonwealth Ombudsman had completed her findings relating to Telstra’s administration of the supply of discovery documents to Ann Garms, Graham Schorer and myself. She found against Telstra. This finding resulted in a Senate review of the cases of Graham and Ann, but not of my case. It has never been explained why I was left out, though it has been suggested that my ongoing phone problems represented a can of worms no-one wanted to open in public.

In this same Senate meeting, the Shadow Minister for Communications, Senator Chris Schacht, raised the issue of the $18 million that Telstra had paid out in legal fees during the COT arbitrations in contrast to the $1.74 million that the COT claimants had collectively received to that point:

The thing that really is annoying is that the lawyers got millions, you paid them millions to go through all of this process and the claimants got $1.7 million — we know who won this case.

… you went through a process of hanging people out to dry for a long time.

Senator Carr, Labor, then said to Telstra’s Graeme Ward:

I have a document here, headed up ‘TELSTRA SECRET’, which suggests that some time ago you were being advised that Mr Smith was likely to secure a substantial payment through a legal arbitration process. Is it not the case that probably it would have been in your commercial interest to have settled long before you did?

Telstra’s Ted Benjamin, who had been in charge of the COT arbitrations and responsible for supplying us our FOI discovery documents, was also a member of the counsel to the TIO’s office. He replied to Senator Carr:

We could not reach a final settlement with Mr Smith before the matter went to arbitration. It was then taken over by Austel in its investigation into what became the COT Report.

A neat side-step. And the issue was left basically unanswered.

The question of whether Telstra’s withholding of FOI documents was a deliberate ploy occupied a Senate Estimates Committee from September 1997 to January 1999. By that time there were 21 COT cases, and five of these, including Ann Garms and Graham Schorer, were chosen for investigation. If it was found proved with these five that Telstra had acted deliberately such that their arbitrations had been compromised, then it would be assumed true for the remaining COT cases.

On 26 September, the TIO Mr Pinnock was called before the Senate Estimates Committee to answer questions about the conduct of the arbitrations. He made an extraordinary statement:

 … the arbitrator had no control over that process, because it was a process conducted entirely outside the ambit of the arbitration procedures.

This was an incredible reversal from the TIO’s office, and one that should have given me joy. Under oath, he was finally agreeing with what I had been saying for so long.

The Senate investigation proceeded over the next 20 months and delivered a decision that Telstra had indeed deliberately withheld FOI documents to the detriment of the COT claimants. But while this was proved for the five test cases, the decision to pass on the benefits to the remaining COT cases was reversed. The five won a total award of several million dollars between them from this Senate Inquiry, and the other sixteen got nothing.

On 23 March 1999, when this Senate investigation was over, the Chairman of the Committee, Senator Alan Eggleston, made a press release:

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.’ 

In fact the TIO Board and Council had hidden two important issues from the Senate Estimates Committee: (1) The Board and Council knew that the TIO-appointed Resource Unit also stopped the COT claimants from receiving relevant documents during the arbitration process and (2) The TIO and the defendants (Telstra) let this happen by allowing the Resource Unit to decide which documents they thought were relevant for the arbitrator to view and which they thought should be withheld from the process.

Most Disturbing And Unacceptable 

On 27 January 1999, after having read my first attempt at writing my manuscript absentjustice.com, the same manuscript was provided to the Prime Minister of Australia John Howard, Senator Kim Carr wrote:

“I continue to maintain a strong interest in your case along with those of your fellow ‘Casualties of Telstra’. The appalling manner in which you have been treated by Telstra is in itself reason to pursue the issues, but also confirms my strongly held belief in the need for Telstra to remain firmly in public ownership and subject to public and parliamentary scrutiny and accountability.

“Your manuscript demonstrates quite clearly how Telstra has been prepared to infringe upon the civil liberties of Australian citizens in a manner that is most disturbing and unacceptable.” 

They [Telstra] have defied the Senate working party. 

On 23 March 1999, after most of the COT arbitrations had been finalized and business lives ruined due to the hundreds of thousands of dollars in legal fees to fight Telstra and a very crooked arbitrator, 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 focused 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.”  

Placing your mouse/cursor on the following six named Senators will show you that all of the COT Cases arbitrations should have been transparently investigated by an arbitrator whose fees and the fees of his covertly exonerated technical and financial consultants were paid by the government and not the Telstra Corporation who were the defendants in all of the arbitrations. 

Eggleston, Sen Alan – Bishop, Sen Mark – Boswell, Sen Ronald – Carr, Sen Kim – Schacht, Sen Chris, Alston and Sen Richard) 

The Senate intervention to stop this unlawful conduct only assisted the five ‘litmus’ COT cases (four) 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.

Why didn't the Australian government pressure Telstra to compensate all of the 21 COT Cases and not just the five COT cases Telstra withheld or destroyed their requested arbitration documents?  It is clear from the following Google link (see What are the risks of hiding evidence during legal discovery?) 

I reiterate why were only 5 of the COT Cases were provided with their previously withheld arbitration documents and not the remaining 16 COT Cases. Those five litmus test cases also received millions upon millions of dollars in punitive damages for having suffered such a terrible arbitration. When those same 16 COT Cases received no compensation

Telstra's Unlawful Withholding Of Documents

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 by the Commonwealth were fully investigated.

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 was distrurbed that A fair resolution of those sixteen COT cases had never been resolved (see [sic] In the office provided for me, that because much of the FOI documentation was so blanked out that it was hard to march the correct correspondence to the Telecom Header Sheets in question.  

The moment I brought to their attention the irregularities regarding the two faxes in question there was an immediate urgency to terminate my presence and I was asked to leave at 40.40 pm".

This was the reason I phoned Detective. Superintendent Jeff Penrose of the Australian Federal Police and described the situation to him.  Mr Penrose responded with words to the affect that:

‘… it is illegal to destroy documents during a discovery process’ and went on to explain that my attendance at Telstra’s office certainly qualified as an official ‘discovery process’.

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