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Chapter Four - Before the arbitrations actually began

Read about the corruption within the government bureaucracy that plagued the COT arbitrations. Learn who committed these horrendous crimes and where they sit in Australia’s Establishment and the legal system that allowed these injustices to occur.


Absent Justice - Austel+39s Adverse Findings

Vileness, villainousness

Before arbitrations began actually, the arbitrator was provided with a watered-down version of AUSTEL’s Adverse Findings now entitled ‘The COT Cases AUSTEL’s Findings and Recommendations’ that was officially submitted to all parties involved in the first four arbitrations as well as various government ministers.

AUSTEL’s Findings and Recommendations regarding the COT cases look good to the casual observer, but it is now clear that much of the information AUSTEL obtained from Telstra for its public report was at best inaccurate and, at worst, fabricated and AUSTEL knew this when it submitted this report into the public domain. AUSTEL’s Adverse Findings and exhibits  20111025143553046 and 20130627133948062 show AUSTEL knew it was not reporting all of the facts concerning the ongoing problems being experienced by at least two COT cases. However, that said, one of AUSTEL’s recommendations in this watered-down report was that it was adamant the COT cases’ telephone problems had to be fixed before an assessor or arbitrator could bring down formal findings.

Those particular findings and recommendations, dated 13 April 1993, state, at point 5.78: “an agreed standard of service, being developed in consultation with AUSTEL [the then government communications regulator] to be applied to any case subject to settlement is essential”. It is clear from this 258-page report, and other similar statements made by AUSTEL, that no finding by the arbitrator could be brought down until Telstra had proved it had fixed all of the ongoing telephone problems being experienced by those entering settlement and/or arbitration. After all, what was the purpose of an arbitration process if the claimants’ businesses were still affected by the ongoing problems that brought them into the process in the first place?

Point 5.25, 5.29 and 5.32 in this public report (see AUSTEL Evidence File 1-A) states:

“…Mr Smith was the first of the original COT Cases to reach an initial ‘settlement with Telecom. It is understood that he: identified the type of faults which his business had experienced. Mr Smith has informed AUSTEL that his major concern and stipulated condition at the time of ‘settlement’ was that his service should operate, and continue to operate, at normal standards”.

“The fifth of the original COT Cases, Mr Schorer, had particular concerns about Telecom’s limited liability and the impact that the limitations was likely to have on any claim he might make for compensation arising from an inadequate telephone service.  

“The fact that faults continued to impact upon the businesses in the period following the settlement shows a weakness in the procedures employed. That is a standard of service should have been established and signed off  by each party. It is a necessary procedure of which all parties are now fully conscious and is dealt with elsewhere in this report. Its omission as far as the initial ‘settlement’ of the original COT Cases were concerned meant that there was continued dissatisfaction with the service provided without any steps being taken to rectify it. This inevitably led to a dissatisfaction with the initial ‘settlement’ and to further demands for compensation. To avoid this sort of problem in the future, AUSTEL is, in consultation with Telecom, developing –

  • a standard of service against which telecom’s performance may be effectively measured;
  • a relevant service quality verification test. 

In the case of at least six of the Service Verification Tests conducted at the COT-cases businesses including my businesses, NO supervised testing of those service lines were carried out by anyone other than the defendants Telstra i.e. NO independent arbitration umpire was present when these tests used by Telstra as defence documents were in attendance when they were conducted. 

Absent Justice -  Cape Bridgewater Holiday Camp and Residence

Heinousness and wicked

What then transpired would have been laughable, if the results didn’t have such serious consequences.  In my case, DMR Group Australia Pty Ltd was not available during the SVT process conducted on 29 September 1994, and thus Telstra was allowed to conduct the entire Cape Bridgewater Holiday Camp SVT process without any sort of supervision from the arbitrator. In fact, even though DMR Group Australia Pty Ltd was named in the Arbitration Agreement as being the independent technical consultants for the first four arbitrations they never made themselves available for the whole entire arbitration process.

It was not until five months after Telstra had, claimed they had carried out the arbitration SVT process at my business premises, on 29 September 1994, that DMR Group Inc (in Canada) was commissioned (on 9 March 1995) as appointed technical arbitration consultants for the four COT arbitrations. So was this eleven-month delay in finding a technical consultant deliberately orchestrated perhaps, so that there was NO independent consultant around while Telstra fudged their SVT process? Paul Howell, of DMR Canada did not fly over from Canada until the second week of April 1995.

PLEASE NOTE: Warwick Smith (the official Administrator for the COT arbitrations) advised the first four COT cases that, if they signed for the TIO-administered arbitration, then the Arbitration appointed technical consultants, DMR Group Australia Pty Ltd, would ensure that all arbitration technical issues, such as the arbitration Service Verification Tests (SVTs), would be conducted according to the Government communications regulatory requirements. After all, what was the point of the Government-endorsed arbitration process, if those requirements were not met?

How can you have an arbitration process – a supposedly equal footing for both parties – when one of those parties (i.e., Telstra) is officially being investigated by the Australian Federal Police (AFP) for intercepting the claimants’ telephone conversations and arbitration-related faxes? How could both the arbitrator and the administrator of the arbitration process allow the defendant of those crimes, Telstra, to carry out its own arbitration service verification tests of the claimants’ telephone service, while still under investigation by the AFP? As shown in my report, titled > Telstra’s Falsified SVT Report, Telstra fabricated their Cape Bridgewater SVT arbitration testing and the arbitrator accepted that report as factual.

Neither Warwick Smith (administrator to the arbitrations) nor Dr Hughes (the arbitrator of the process) took into consideration the normal legal rights of the COT cases when they allowed the defendants (Telstra) to conduct their own arbitration testing process without that SVT process being scrutinized by the TIO-appointed technical consultants?

Now that the Government that endorsed my arbitration is aware that not all of my claim documents reached the arbitrator’s office, either as a direct result of the very poor network or because those documents were illegally intercepted en route to the arbitrator for assessment, why hasn’t anyone even begun to investigate this? Why am I being denied the opportunity to resubmit the claim documents that we can prove were faxed to the arbitrator’s office but were never investigated? What have Telstra and the Government got to hide if I cannot prove what I am claiming, i.e. that numerous arbitration documents of great value to my case were never assessed by the arbitrator, particularly after the April 1994, Government Communications Regulator’s COT Cases public report respectfully notes:

… first at point 5.68.14:

“the arbitrator will make his determination on reasonable grounds as to the link between the claim and alleged faults drawing reasonable inferences from the material presented by the claimants and Telecom”

… and again at point 5.68.15:

“the arbitrator will set out his reasons in full”  

In my case, how could the arbitrator make a determination based ‘on reasonable grounds’ from the material I presented, when that material never arrived even though my fax account shows it was sent (see FrontPage Part One File No/1)?

Two weeks after I signed my arbitration agreement, I received a letter dated 6 May 1994 from Peter Bartlett, the TIO-appointed arbitration special counsel. Mr Bartlett wrote:

“I certainly told you that nothing in the Procedure would prevent you from including in your claim ‘consequential losses, flow-on losses, loss of health etc.’ However, I must emphasise that Dr Hughes can only make a decision on the material before him.” (See False Arbitration Statement File No 15-A)

This is conclusive proof, from the official arbitration legal counsel, that Dr Hughes could only make a decision on the material before him.

SVT and billing documents never reached the arbitrator 

NONE of these letters actually reached the arbitrator.

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Absent Justice Ebook

Read Alan’s book

My name is Alan Smith. This is the story of my battle with a telecommunications giant and the Australian Government, a battle that has twisted and turned, since 1992, through elected governments, government departments, regulatory bodies, the judiciary, and the Australian telecommunications giant, Telstra, or Telecom, as it was known when this story started. The quest for justice continues to this day.

Other independent business people similarly affected by poor telecommunications have joined me on my journey. We are known as the Casualties of Telstra, or the COT cases. All we wanted was for the government owned telecommunications carrier Telstra to admit there was problems, and fix them.

Worse, we had been tricked into signing a confidentiality clause that has hampered all of our efforts since to have our claims transparently investigated.

What do you think? Are we imagining it or has there really been massive corruption and collusion on the part of public servants, politicians, regulatory bodies and Telstra themselves, to protect Telstra to the detriment of it's customers?

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“Only I know from personal experience that your story is true, otherwise I would find it difficult to believe. I was amazed and impressed with the thorough, detailed work you have done in your efforts to find justice”

Sister Burke

“…your persistence to bring about improvements to Telecom’s country services. I regret that it was at such a high personal cost.”

The Hon David Hawker MP

“A number of people seem to be experiencing some or all of the problems which you have outlined to me. …

“I trust that your meeting tomorrow with Senators Alston and Boswell is a profitable one.”

Hon David Hawker MP

“I am writing in reference to your article in last Friday’s Herald-Sun (2nd April 1993) about phone difficulties experienced by businesses.

I wish to confirm that I have had problems trying to contact Cape Bridgewater Holiday Camp over the past 2 years.

I also experienced problems while trying to organise our family camp for September this year. On numerous occasions I have rung from both this business number 053 424 675 and also my home number and received no response – a dead line.

I rang around the end of February (1993) and twice was subjected to a piercing noise similar to a fax. I reported this incident to Telstra who got the same noise when testing.”

Cathy Lindsey

“Only I know from personal experience that your story is true, otherwise I would find it difficult to believe. I was amazed and impressed with the thorough, detailed work you have done in your efforts to find justice”

Sister Burke

“…the very large number of persons that had been forced into an arbitration process and have been obliged to settle as a result of the sheer weight that Telstra has brought to bear on them as a consequence where they have faced financial ruin if they did not settle…”

Senator Carr

“All that is required for evil to triumph is for good men to do nothing”

– Edmund Burke