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Chapter 3

Legal Professional Privilege

Absent Justice - The Firm

The Firm - John Grisham 

It was while all this skulduggery and deception was taking place and Denise McBurnie along with Freehill Hollingdale & Page had drained me of all my reserved energies to keep going,  that I remembered the ruthless legal firm portrayed in the 1991 novel The Firm by John Grisham.

Learn about government corruption and the dirty deeds used by the government to cover up these horrendous injustices committed against 16 Australian citizens

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.

Although the Freehill Hollingdale & Page - COT Case Strategy has been raised elswhere on this website it was again important to raise it right through my story because having to register phone complaints to a lawyer in writing brought on not just PSD, it stopped me focussing on what telephone calls that did make it through the minefield of a very congested telephone network. 

During this turbulent period where it felt like I was in a dream telephoning a lawyer to explain the previous four incoming calls had just dropped out I felt as though Denise McBurnie was playing a cat and mouse type game with my mind. It is clear from the following pages 36 to 39 Senate - Parliament of Australia that Freehill's had us COT Cases at their mercy. Worse, however, the day before the Senate committee uncovered this COT Case Strategy, 

 

Absent Justice - Senate

Stop the COT Cases at all cost

The Senate was also told under oath, on 24 June 1997 see:- pages 36 to 39 Senate - Parliament of Australia/from an ex-Telstra employee and then-Whistle-blower, Lindsay White, that, while he was assessing the relevance of the technical information which had been requested by the COT claimants, he advised the Committee that:

"In the first induction - and I was one of the early ones, and probably the earliest in the Freehill's area - there were five complaints. They were Garms, Gill and Smith, and Dawson and Schorer. My induction briefing was that we - we being Telecom - had to stop these people to stop the floodgates being opened."

Senator O’Chee then asked Mr White - "What, stop them reasonably or stop them at all costs - or what?"

Mr White responded by saying - "The words used to me in the early days were we had to stop these people at all costs".

Senator Schacht also asked Mr White - "Can you tell me who, at the induction briefing, said 'stopped at all costs" 

Mr White responded by saying - Mr Peter Gamble, Peter Riddle. (See pages 36 to 39 Senate - Parliament of Australia)

Also, in the above Senate Hansard on 24 June 1997 (refer to pages 76 and 77 Senate - Parliament of Australia Senator Kim Carr states to Telstra’s main arbitration defence Counsel (also a TIO Council Member) Re: Alan Smith: 

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 that is a useful thing to keep in a file that maybe at some stage can be used against him”.

Senator CARR – [to Telstra's] “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?”  (My emphasis)

The most alarming situation regarding the intelligence networks that Telstra has established in Australia is who within the Telstra Corporation has the correct expertise, i.e. government clearance, to be able to impartially filter the raw information collected before that information is catalogued for future use?  More importantly, when Telstra was fully privatised, which organisation in Australia was given the charter to archive this very sensitive material?

PLEASE NOTE: At the time of my altercation referred to in the above 24 June 1997 Hansard, my bankers had already lost patience and had sent the Sheriff to make sure I stayed on my knees. I threw no punches during this altercation with the Sheriff, who was about to remove catering equipment from my property, which I needed to keep trading. I actually placed a judo hold ‘Full Nelson’ on this man and walked him out of my office. All charges were dropped by the Magistrates Court on appeal when it became obvious there were two sides to this story.

.The long-term effect of these unethical attacks on the well-being of the COT Cases, i.e., that two have died since the third has dementia. In November 2017, I suffered a heart attack and double bye-pass (living with a pacemaker). Finally, the terrible treatment we COT Cases have endured has taken its toll. I no longer laugh from my belly or tell my favourite seaman's jokes. I survive only for my partner's sake and the need to say to this story.  

In January 2018, my partner, Cathy, was with me for my first appointment with our local doctor after I had survived this heart attack and double bypass surgery.  Although the doctor was very sympathetic to my situation (and he knows my COT story), he couldn’t help but ask:  “Why am I not surprised?”

The fabricated BCI report (see Telstra’s Falsified BCI Report and BCI Telstra’s M.D.C Exhibits 1 to 46 is most relevant because Telstra's lawyers provided it to Ian Joblin a forensic psychologist who was assigned by Freehill Hollingdale & Page (Telstra's lawyers) to assess my mental state during my arbitration. it is clearly linked to statements made in the following page 5169 SENATE official Hansard – Parliament of Australia concerning Telstra having adopted the Freehill Hollingdale & Page - COT Case Strategy during the COT arbitrations, which Denise McBurnie of Freehill Hollingdale & Page had spuriously prepared. 

What I did not know when I first had to register my telephone problems in writing with Denise McBurnie before Telstra would investigate those faults is that this COT Case Strategy was a set up by Telstra and their lawyers to hide all proof that I truly did have ongoing telephone problems affecting the viability of my business. 

This continual writing up of individual telephone faults to these lawyers, Freehill Hollingdale & Page, in order to have Telstra investigate them almost sent me insane. Instead of keeping this fault evidence, I was providing it to Telstra believing this would assist them in locating the problems my business was experiencing. 

I was unaware I would later need this evidence for an arbitration process. This arbitration process meant I had to retrieve back, from Telstra under Freedom of Information, the very same documentation I had previously provided this legal firm. Imagine the frustration of knowing that you had already provided the evidence supporting your case but it was now being withheld from you by Telstra and their lawyers.

If this wasn’t soul-destroying enough, imagine learning that the lawyer with whom you were being forced to register your phone complaints devised a legal paper titled “COT Case Strategy” (see Prologue Evidence File 1-A to 1-C). instructing their client Telstra (naming me and my business) on how Telstra could conceal this same type of technical information from me under the guise of Legal Professional Privilege even though the information was not privileged. (see also page 5169  SENATE official Hansard – Parliament of Australia.

These were four of the same names targeted by Denise McBurnie and Freehill Hollingdale & Page in their COT Cases strategy, which had to be stopped from receiving their requested documents under FOI (see Prologue Evidence File 1-A to 1-C)

The fact that the Denise McBurnie - COT Case Strategy was exposed during a combined Senate investigation and the government still denied me compensation or did not order Telstra to supply me my previously withheld documents as they did for the other five litmus test cases shows how corrupt the Australian government is.

In my case, Telstra had previously refused to address the many phone problems that were affecting the capacity of my businesses, telling them 'No fault found,' when documents on this website show they were found to have existed as the following government communications regulators own AUSTEL’s Adverse Findings shows. Page 5169 in this SENATE official Hansard – Parliament of Australia shows Telstra adopted the Freehill Hollingdale & Page - COT Case Strategy during the COT arbitrations which Denise McBurnie of Freehill Hollingdale & Page had spuriously prepared. 

Absent Justice - Further Insult to Injustice

Unsigned Witness Statement 

When I first received a copy of this legal advice Prologue Evidence File 1-A to 1-C years after the completion of my arbitration, it took me back to my arbitration and 12 September 1994, when I was obliged to meet with Telstra’s consulting forensic psychologist in Portland’s Richmond Hotel so he could analyse my mental health as part of Telstra’s defence of my arbitration claims (see the above Denise McBurnie - COT Case Strategy).

I found the process of being interviewed by a forensic psychologist in the saloon bar of the local hotel shockingly uncomfortable and embarrassing, especially when he kept spreading out different cards on the table as part of this clinical forensic testing process. Was this his idea to unstabilize me during my arbitration or the company that had hired him? However, when this legal firm, which the government assured us would not be used in our arbitrations point 40 Prologue Evidence File No/2), provided this clinical psychologist’s witness statement to the arbitrator, it was only signed by this legal firm's lawyer Maurice Wayne Condon, It bore no signature of the psychologist.

Did Maurice Wayne Condon remove or alter any reference to what Ian Joblin had originally written?

On 21 March 1997, twenty-two months after the conclusion of my arbitration, John Pinnock (the second appointed administrator to my arbitration), wrote to Telstra's Ted Benjamin File 596 AS-CAV Exhibits 589 to 647 asking: 

1...any explanation for the apparent discrepancy in the attestation of the witness statement of Ian Joblin [clinical psychologist’s].

2...were there any changes made to the Joblin statement originally sent to Dr Hughes [the arbitrator] compared to the signed statement?" 

I have never seen a copy of the advice that John Pinnock was officially entitled to receive from Telstra regarding this unsigned arbitration witness statement.

The reason I was asking the TIO as to why Ian Joblin's signature was not on the first of Mr Joblin's supplied witness statements is because the first witness statement had paragraphs that did not correspond with the previous statement above. It appears as those in two areas of the witness statement. Mr Joblin had left out a paragraph of one or two paragraphs.

The ending in those two paragraphs appeared to have stopped halfway through the sentence (the following words did not flow) back into the previous statement made.

It is also important to highlight the Freehiil's statement noting: 

"In the current climate Telecom needs to be particularly careful with its correspondence to the CoT customers. I have engaged Denise McBurnie from Freehills to participate on an “as required” basis in this matter and it is appropriate that all correspondence from the CoT (and near CoT) customers should be channelled through Denise for either drafting of the reply from Telecom or for the reply direct from Freehills as our agent.

It goes on to say:

'Would you please ensure that with all customers that are, (or have the potential to become) serious complaints, correspondence is processed through Freehills with initial acknowledgement by the Region."

I reiterate, the government promised us that Freehill Hollingdale & Page would not be used in our arbitrations. On 5th October 1993: Robin Davey, AUSTEL’s Chairman provides a draft of the agreement to be used in the four COT Cases for Graham Schorer (Golden Messenger), Ann Garms (Tivoli Theatre Restaurant), Maureen Gillan (Japanese Spare Parts) and Alan Smith (Cape Bridgewater Holiday Camp), Fast Track Settlement Proposal to Telstra’s Ian Campbell, Managing Director, Commercial  (AS 927) noting:

"Finally, if the attached letter (Attachment 'D') dated 7 July 1993 from Freehill Hollingdale & Page to one of the COT Cases’ solicitors is indicative of the way that Freehill, Holingdale & Page have approached the COT Cases in the past, I would be more than a little concerned if they were to have a continuing role."

It is most paramount that I discuss here in my story because if the reader is trying to come to grips as to why a government legal type agency has not taken up my issues, this question can be answered by raising very important issues raised on page 5169 at point 29, 30, and 31 SENATE official Hansard – Parliament of Australia which note

29. Whether Telstra was active behind-the-scenes in preventing a proper investigation by the police is not known. What is known is that, at the time, Telstra had representatives of two law firms on its Board—Mr Peter Redlich, a Senior Partner in Holding Redlich, who had been appointed for 5 years from 2 December 1991 and Ms Elizabeth Nosworthy, a partner in Freehill Hollingdale & Page who had also been appointed for 5 years from 2 December 1991.  

One of the notes to and forming part of Telstra’s financial statements for the 1993- 94 financial year, indicates that during the year the two law firms supplied legal advice to Telstra totalling $2.7 million, an increase of almost 100 per cent over the previous year. Part of the advice from Freehill Hollingdale & Page was a strategy for "managing" the "Casualties of Telecom" (COT) cases.  

30. The Freehill Hollingdale & Page strategy was set out in an issues paper of 11 pages, under cover of a letter dated 10 September 1993 to a Telstra Corporate Solicitor, Mr Ian Row from FH&P lawyer, Ms Denise McBurnie. The letter, headed "COT case strategy" and marked "Confidential," stated: "As requested I now attach the issues paper which we have prepared in relation to Telecom’s management of ‘COT’ cases and customer complaints of that kind. The paper has been prepared by us together with input from Duesburys, drawing on our experience with a number of ‘COT’ cases. . . ."

31. The lawyer’s strategy was set out under four heads: "Profile of a ‘COT’ case" (based on the particulars of four businesses and their principals, named in the paper); "Problems and difficulties with ‘COT’ cases"; "Recommendations for the management of ‘COT’ cases; and "Referral of ‘COT’ cases to independent advisors and experts". The strategy was in essence that no-one should make any admissions and, lawyers should be involved in any dispute that may arise, from beginning to end. "There are numerous advantages to involving independent legal advisers and other experts at an early stage of a claim," wrote Ms McBride [sic]. Eleven purported advantages were listed.

Absent Justice - My StoryWhat sort of a chance do you think I would have if I lodged any sort of a claim with any level of government in Australia?  Do you think I could expect a fair hearing and an unbiased judgement from the Labor Party, or any other Australian organisation with any level of power in relation to what Freehill Hollingdale & Page did back when Ms Elizabeth Nosworthy and Mr Peter Redlich AO were both on the board of Telstra and my business was one of the four that were deliberately singled out by Freehill's to be stopped from getting the documents we needed to support our claims, no matter what the cost might be to achieve that?

Back then, Mr Redlich was, in most people's eyes, one of the finest lawyers that Australia had ever had. A stalwart within the Labor Party, a one-time friend of two Australian Prime Ministers (Gough Whitlam and Bob Hawke) and a long-time friend of Mark Dreyfus, Australia's current Attorney General.  Who would be the slightest bit interested in listening to my perspective in relation to someone so highly qualified and with such important friends?  Would my situation have even the tiniest chance of being heard in relation to the COT strategy designed by Freehill Hollingdale & Page? After all, in comparison to these so-called highly qualified, revered Aussie citizens, I am just a one-time Ships’ Cook who purchased a holiday camp with a very unreliable phone service although, remember, I am also a legitimate Australian citizen.

It is important to note that during the first week of January 1994, the COTs advised Warwick Smith, the TIO, who was also the administrator of both the Fast Track Settlement Proposal (FTSP) and the Fast Track Arbitration Procedure (FTAP), that AUSTEL’s Chairman, Robin Davey, had also assured the COTs that Freehill’s would no longer be involved in their Fast Track Settlement Proposal. An internal Telstra email (FOI folio C02840) from Greg Newbold to various Telstra executives (AS 928) notes:

"Steve Lewis (Australian Financial Review news reporter) is following up on his own yarn NOT with the Davey letter to the minister but with the Davey letter to the CEO raising concerns about our use of Freehills."

Later, between January and March 1994, when the COTs again spoke to Warwick Smith, concerned that Telstra had now appointed Freehills as their FTAP defence lawyers, the TIO’s response was that it was up to Telstra who they appointed as their arbitration lawyers, even though Alan also advised the TIO, in March 1994, that he was still having to register his phone complaints through Freehills and had still not been provided with any of the technical data to support Freehill’s assertions that there was nothing wrong with his telephone/fax service. This was a grave conflict of interest situation.

During and after my arbitration, he raised his concerns that the arbitrator had not addressed Freehill’s submission of Telstra witness statements that had only been signed by Freehills and not by those who were actually making the statements. Nothing was transparently done to assist me in this matter other than to send this witness statement back to be signed by the alleged author making the statement.

My appeal lawyer (Law Partners of Melbourne) was not only staggered to learn about this witness statement issue but was also staggered to learn that none of the arbitration fault correspondence that had been exchanged between Freehills, Telstra and I was ever provided to me as it should have been according to the rules of discovery. In fact, my lawyer suggested that perhaps Telstra had originally appointed Freehills to be my designated fault complaint managers so that any of that correspondence would form what Telstra believed to be a legal bridge, so that my ongoing telephone fault evidence could be concealed under Legal Professional Privilege (LPP) during his arbitration.

Telstra’s continued use of Freehills throughout the COT arbitrations and the arbitrator’s refusal, in my case, to look into why Telstra was withholding technical data under LPP, suggested, at the time, that the arbitrator was not properly qualified as he didn’t seem to understand that Telstra could not legally conceal technical information under LPP.

As this story reveals, Dr Hughes was, in fact, not a graded arbitrator at all, and was not registered as an arbitrator with the arbitrator’s umbrella organisation, then called the Institute of Arbitrators Australia.  

19th October 1993: This document from Denise McBurnie (Freehill's) to Telstra's Don Pinel titled Legal Professional Privilege In Confidence FOI folio A06796:  includes the following statements:

"Duesbury & FHP continuing of evaluating (blank) claim - final report to Telecom will be privileged and will not be made available to (blank).

Telecom preparing report for FHP analysing data available on (blank) services ie. (CCAS, Leopard, CABS and file notes) – this report will be privileged and will not be made available to (blank)." (AS 930)

In other words, Telstra FOI documents (folio R00524 and A06796) confirm Telstra was already hiding technical information from the COT claimants under Legal Professional Privilege. It is important to note here that Telstra had directed me to register my 'ongoing' telephone faults in writing to Denise McBurnie of Freehills in order to have those issues addressed. I found this not just time-consuming but also very frustrating because by the time he received a response to one complaint, he already had further complaints to register. It wasn’t until I entered the arbitration process that it appeared as though Telstra were using Freehills’ Legal Professional Privilege strategy to hide numerous important technical documents from the claimants, including the very same 008/1800 fault complaints that I had registered through Freehills, according to Telstra’s directions.

29th October 1993: this Telstra FOI document folio K01489 Exhibit (AS 767-A) notes

"During testing the Mitsubishi fax machine, some alarming patterns of behaviour were noted, these affecting both transmission and reception. Even on calls that were not tampered with the fax machine displayed signs of locking up and behaving in a manner not in accordance with the relevant CCITT Group 3 fax rules."

The hand-written note in the bottom right corner of Exhibit AS 767-B, which states: “Stored in Fax Stream?” suggests that faxes intercepted via Telstra’s testing process are stored in Telstra's Fax Stream service centre so the document can be read at any time, by anyone with access to Telstra’s fax stream centre. The Scandrett & Associates report proves that numerous COT arbitration documentation was definitely intercepted, including faxes travelling to and from Parliament House, the Commonwealth Ombudsman’s Office (COO) and the COTs and, in my case, at least, that this interception continued for seven years after his arbitration was over. This means, in turn, that Telstra had free access to in-confidence documents that the claimants believed they were sending ONLY to their accountants, lawyers and/or technical advisors (as well as Parliament House and the COO), and those documents could well have included information that the claimants might not have wanted to be disclosed to the defendants at the time

Was the engineer pressured to stay quiet during my arbitration? I don't know. Certainly, not all Telstra engineers or technicians treated COT complaints in good faith. Another Telstra technician, who experienced major problems during his official fax testing process on 29 October 1993, nevertheless advised the arbitrator that I had no problems with that service, even though the Telstra document that discusses these faults notes:

In a similar incident, an FOI document regarding a complaint I lodged about my own phone service bears a hand-written note which states'No need to investigate, spoke with Bruce, he said not to investigate also.'

Where was this attitude coming from? If from higher management, it seems an odd way to do business: exacerbating our problems so that we would only complain more.

In the first five months of 1993, I received another eleven written complaints, including letters from the Children's Hospital and the Prahran Secondary College in Melbourne. The faults had now plagued my business unabated from April 1988 to mid-1993.

By now, due to COT's pressure in Canberra, a number of politicians have become interested in our situation. The question was, would these politicians actually take any action on our behalf, or would they protect the 'milking cow' of the Telstra corporation?

In June 1993, the Shadow Minister for Communications, the Hon. Senator Richard Alston, was showing an interest. He and Senator Ron Boswell of the National Party both pushed for a Senate Inquiry into our claims, and an ex-Telstra employee recently told me they were very close to pulling it off. If this Senate Inquiry had got off the ground, heads in Telstra might have rolled, but this didn't happen, and those same 'heads' continue to control Telstra to this day.

Even though Senator Boswell is based in Queensland and most of the remaining members of COT are in Victoria, he has continued to offer his support. David Hawker MP, my local parliamentary member, was another who saw his 'duty of care to his constituents and so answered our call for help. He took my claims seriously — indeed, he took the problem of poor phone service in his electorate seriously and was appalled at its extent. Mr Hawker sent me letters of support, put relevant people in touch with me, organised assistance for me, and has continued to go into battle on COT's behalf for ten years now.

Non-connecting calls

While the politicians tried to launch a Senate Enquiry, COT continued to lobby Austel for assistance. Yet another telephone issue was affecting my business. In February 1993, I installed an 1800 free call number to encourage telephone business and experienced problems right from the start. Many calls to this number were not connecting; the caller heard only silence on the line and typically hung up. The business was potentially losing a client, but adding insult to injury, I was charged for these non-connecting calls. Even worse, in many instances, the caller heard a recorded announcement from Telstra to the effect that the number wasn't connected. I first knew this problem was occurring through people reporting their difficulties trying to reach me. After this, I checked my bills carefully.

According to Telstra's policy, customers are charged only for calls that are answered. Unanswered calls are not charged and include:

… calls encountering engaged numbers (busy), various Telstra tones and recorded voice announcements as well as calls which 'ring out' or are terminated before or during ringing.

Between February and June 1993, I provided Austel with evidence of erroneous charging on unanswered calls on my 1800 service (in fact, it went on for at least another three years after that). John MacMahon, General Manager of Consumer Affairs at Austel, wanted a record of all non-connected calls and RVAs that were being charged to my 1800 account. In order to provide that, I needed the data from my local exchange.

Both Austel and the Commonwealth Ombudsman's Office were aware that I made repeated requests of Telstra, under the rules of FOI, to provide me with the relevant data. Yet, despite the involvement of these institutions, Telstra held out on me. In the end, it was more than a decade later that I received any of the relevant information, and that was through Austel. And, of course, it was too late by then. The statute of limitations on the matter had long expired.

I did not understand then, nor do I understand why Austel, as the government regulator of the telecommunications industry, could not demand that data from Telstra.

From June 1993, I had proof that Telstra knew the faulty billing in the 1800 system was a network problem from its inception.

The Briefcase 

Absent Justice - My Story - The Briefcase Affair

Ericsson AXE faulty telephone exchange equipment (1)

I should have known better. It was just another case of 'No fault found.' We spent some considerable time 'dancing around' a summary of my phone problems. Their best advice for me was to keep doing exactly what I had been doing since 1989: keeping a record of all my phone faults. I could have wept. Finally, they left.

A little while later, in my office, I found that Aladdin had left behind his treasures: the Briefcase Saga was about to unfold.

Aladdin

The briefcase was not locked, and I opened it to find out it belonged to Mr Macintosh. There was no phone number, so I was obliged to wait for business hours the next day to track him down. However, what there was in the briefcase was a file titled 'SMITH, CAPE BRIDGEWATER'. After five gruelling years fighting the evasive monolith of Telstra, being told various lies along the way, here was possibly the truth, from an inside perspective.

The first thing that rang alarm bells was a document that revealed Telstra knew that the RVA fault they recorded in March 1992 had actually lasted for at least eight months — not the three weeks that was the basis of their settlement payout. Dated 24/7/92, and with my phone number in the top right corner, the document referred to my complaint that people ringing me get an RVA' service disconnected' message with the 'latest report' dated 22/7/92 from Station Pier in Melbourne and a 'similar fault reported' on 17/03/92. The final sentence reads: 'Network investigation should have been brought in as fault has gone on for 8 months.'

I copied this and some other documents from the file on my fax machine and faxed copies to Graham Schorer. The next morning I telephoned the local Telstra office, and someone came out and picked the briefcase up.

The information in this document, dated 24 July 1992, was proof that senior Telstra management had deceived and misled me during previous negotiations. It showed that their guarantees that my phone system was up to network standard were made in full knowledge that it was nowhere near 'up to standard'.

It is noted that Telstra's area general manager was fully aware at the time of my settlement on 11 December 1992 that she was providing me with incorrect information. This information influenced my judgement of the situation, placing me at a commercial disadvantage, but the General Manager of Commercial Victoria/Tasmania was also aware of this deception.

The use of misleading and deceptive conduct in a commercial settlement such as mine contravenes Section 52 of the Australian Trade Practices Act. Yet this deception has never been officially addressed by any regulatory body. To get ahead of my story here, even the arbitrator who handed down his award on my case in May 1995 failed to question Telstra's unethical behaviour.

Manipulating the Regulator

Absent Justice - Negligent Action

Previously Withheld Documents 

I took this new information to Austel and provided them with several documents that had previously been withheld from me during my 11 December 1992 settlement, which had been in the briefcase. On 9 June 1993, Austel's John MacMahon wrote to Telstra regarding my continuing phone faults after the settlement and the content of the briefcase documents:

Further he claims that the Telecom documents contain network investigation findings which are distinctly different from the advice which Telecom has given to the customers concerned.

In Summary, these allegations, if true, would suggest that in the context of the settlement, Mr Smith was provided with a misleading description of the situation as the basis for making his decision. They would also suggest that the other complainants identified in the folders have knowingly been provided with inaccurate information.

I ask for your urgent comment on these allegations. You are asked to immediately provide AUSTEL with a copy of all the documentation, which was apparently inadvertently left at Mr Smith's premises for its inspection. This, together with your comment, will enable me to arrive at an appropriate recommendation for AUSTEL's consideration of any action it should take.

As to Mr Smith's claimed continuing service difficulties, please provide a statement as to whether Telecom believes that Mr Smith has been provided with a telephone service of normal network standard since the settlement. If not, you are asked to detail the problems which Telecom knows to exist, indicate how far beyond network standards they are and identify the cause/causes of these problems.

In light of Mr Smith's claims of continuing service difficulties, I will be seeking to determine with you a mechanism that will allow an objective measurement of any such difficulties to be made.

I can only presume that Telstra did not comply with the request 'to immediately provide AUSTEL with a copy of all the available documentation which was apparently inadvertently left at Mr Smith's premises' on 3 August 1993.  Austel's General Manager, Consumer Affairs, wrote to Telstra requesting a copy of all the documents in this briefcase that had not already been forwarded to Austel.

I sent off a number of Statutory Declarations to Austel explaining what I had seen in the briefcase. Telstra had returned and picked up the briefcase. 

One-third of the documents which I managed to copy was enough information to convince AUSTEL that Ericsson and Telstra were fully aware the AXE Ericsson lock-up faults were a problem worldwide, affecting 15 to 50 per cent of all calls generated through this AXE exchange equipment. It was locking up flaws that affected the billing software. 

Thousands upon thousands of Telstra customers Australia-wide had been wrongly billed since the installation of this Ericsson AXE equipment, which, in my case, had been installed in August 1991, with the problems still apparent in 2002. Other countries around the world were removing or had removed it from their exchanges (see File 10-B Evidence File No/10-A to 10-f ), and Australia was still denying to the arbitrator there was ever a problem with that equipment. Lies told by Telstra so as to minimise their liability to the COT Cases. (See Files 6 to 9 AXE Evidence File 1 to 9)

Was this the real reason why the Australian government allowed Ericsson to purchase Lane during the government-endorsed COT arbitration while the arbitrations were still in progress?

When the COT arbitration documents submitted into arbitration proved that this Ericsson AXE lock-up call loss rate was between 15% to 50%, as File 10-B Evidence File No/10-A to 10-f so clearly shows. AUSTEL then instigated an investigation into these AXE exchange faults and uncovered some 120,000 COT-type complaints were being experienced around Australia. Exhibit (Introduction File No/8-A to 8-C), shows AUSTEL's Chairman Robin Davey received a letter from Telstra's Group General Manager (who was also Telstra's main arbitration defence liaison officer), suggesting he alter that finding for 120,000 COT-type complaints to show a hundred. In fact, when the public AUSTEL COT Cases report was launched on 13 April 1994, it showed AUSTEL located up-wards of 50 or more COT-type complaints being experienced around Australia. 

Was this the major problem Julian Assange wanted to share with the COT Cases? He said corruption was significant. How bigger could this have been had it been exposed during the COT arbitrations?

In my case, none of the relevant arbitration claims raised against Ericsson, whose official arbitration records numbered A56132, were investigated, including my Telstra's Falsified SVT Report. Why did Lane ignore this evidence against Ericsson?  

Even worse was when my arbitration claim documents were returned to me after the conclusion of the arbitration, NONE of my Ericsson technical data was amongst the returned material.

I believe the Australian government should answer the following questions: How long was Lane Telecommunications Pty Ltd 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 Lane by Ericsson during the COT arbitration process?

Is there a sinister link between the government communications media regulator ACMA denying me access to the Ericsson AXE documentation, which I lawfully tried to gain access to during my two government Administrative Appeal Tribunal hearings in 2008 and 2011 (see Chapter 9 - The ninth remedy pursued and Chapter 12 - The twelfth remedy pursued).

The latest 2019/2020 5G Ericsson partnership with Telstra is relevant to all Australian Telstra subscribers; however, it is also relevant that the same subscribers, if they were to visit this website absentjustice.com, where you can see yourself, that my claims against Telstra and Ericsson are valid (see Bribery and Corruption - Part 2).

Therefore, it is important to highlight the Ericsson here the bribery and corruption issues the US Department of Justice raised against Ericsson as discussed above in the Australian media reports on 19 December 2019

On 27 August 1993, Telstra's Corporate Secretary, Jim Holmes, wrote to me about the contents of the briefcase:

Although there is nothing in these documents to cause Telstra any concern in respect of your case, the documents remain Telstra's property. They, therefore, are confidential to us … I would appreciate it if you could return any documents from the briefcase still in your possession as soon as possible.

How blithely he omitted any reference to vital evidence which was withheld from me during their negotiations with me regarding compensation.

Flogging a dead horse

By the middle of 1993, people were becoming interested in what they heard about our battle. A number of articles had appeared in my local newspaper, and interstate gossip about the COT group was growing. In June, Julian Cress from Channel Nine's 'Sixty Minutes' faxed me:

Just a note to let you know that I had some trouble getting through to you on the phone last Thursday. Pretty ironic, considering that I was trying to contact you to discuss your phone problems.

The problem occurred at about 11 am. On the 008 number I heard a recorded message advising me that 008 was not available from my phone and your direct line was constantly engaged.

Pretty ironic, all right!

A special feature in the Melbourne Age gave my new 'Country Get-A-Ways' program a great write-up. It was marketing weekend holidays for over-40s singles in Victoria and South Australia: an outdoor canoe weekend, a walking and river cruise along the Glenelg River and a Saturday Dress-up Dinner Dance with a disco as well as a trip to the Coonawarra Wineries in South Australia with a Saturday morning shopping tour to Mt Gambier. I began to feel things were looking up for the Camp.

It was too much to hope for that my telephone saga was coming to an end. A fax arrived on 26 October 1993 from Cathine, a relative of the Age journalist who wrote the feature:

Alan, I have been trying to call you since midday. I have rung seven times to get an engaged signal. It is now 2.45 pm.

Cathine had been ringing on my 1800 free-call line. I had been in my office, and there had been no calls at all between 12.30 and 2.45 that day. What was going on? (Telstra's data for that day shows one call at 12:01, lasting for 6 minutes and another at 12:18, lasting for 8 minutes). I cannot express how frustrating this was; there seemed to be no end to it in sight. But I was determined not to let the bastards get me down. Their lies and incompetence had to be exposed. That day shows one call at 12:01, lasting for 6 minutes and another at 12:18, lasting for 8 minutes). I cannot express how frustrating this was; there seemed to be no end to it in sight. But I was determined not to let the bastards get me down. Their lies and incompetence had to be exposed.

I stepped up my marketing of the Camp and the singles weekends, with personal visits to social clubs around the Melbourne metropolitan area and in Ballarat and Warrnambool. I followed with ads in local newspapers in metropolitan areas around Melbourne and in many of the large regional centres around Victoria and South Australia. I also placed ads for the Get-Away holidays in the 1993 White Pages — or rather, I tried to: the entries never made it into the telephone books. I complained of this to the TIO (the Telecommunications Industry Ombudsman), who attempted to extract from Telstra an explanation for my advertisements being left out of 18 major phone directories.

As the Deputy TIO said in his letter to me of 29/3/96, he believed his office would simply 'be flogging a dead horse trying to extract more' from Telstra on this matter. (In fact, the TIO is an industry body supervised by a board, the members of which are drawn from the leading communications companies in the country: Vodaphone, Optus and, of course, Telstra.)

Between May and October of 1993, in response to my request for feedback, I received many letters from schools, clubs and singles clubs, writing of the difficulties they had experienced trying to contact the Camp by phone. The executive officer of the Camping Association of Victoria, Mr Don MacDowall, wrote on 6 May 1993 to say that 10,000 copies of their Resource Guide, which I had advertised, had been directly mailed to schools and given away. Mr MacDowall had said the other advertisers with ads similar to mine had experienced an increase in inquiries and bookings after distributing these books. So it seemed evident to him that the 'malfunction of your phone system effectively deprived you of similar gains in business.' He also noted that he had himself received complaints from people asking why I was not answering my phone. All in all, during this period, I received 36 letters from different individuals as well as more than 40 other complaints from people who had tried, unsuccessfully, to respond to my advertisements. The Hadden & District Community House wrote in April 1993:

Several times I have dialled 055 267 267 number and received no response — dead line. I have also experienced similar problems on your 008 number.

Our youth worker, Gladys Crittenden, experienced similar problems while organising our last year's family camp, over a six month period during 1991/1992.

In August 1993 Rita Espinoza from the Chilean Social Club wrote:

I tried to ring you in order to confirm our stay at your camp site. I found it impossible to get through. I tried to ring later but encountered the same signal on 10 August around 7 – 8.30 pm. I believe you have a problem with the exchange and strongly advise you contact Telstra.

Do you remember the same problem happened in April and May of this year?

I apologise but I have made arrangements with another camp.

A testing situation

Late in 1993, a Mrs Cullen from Daylesford Community House informed me that she had tried unsuccessfully to phone me on 17 August 1993 at 5.17, 5.18, 5.19 and 5.20 pm, each time reaching a deadline. She had reported the fault to Telstra's Fault Centre in Bendigo on 1100, speaking to an operator who identified herself as Tina. Tina then rang my 1800 number, and she couldn't get through either. Telstra's hand-written memo, dated 17 August 1993, records the times Mrs Cullen tried to get through to my phone and reports Tina's failed attempt to contact me.

A copy of my itemised 1800 account shows that I was charged for all four of these calls, even though Mrs Cullen never reached me. All this information was duly passed to John MacMahon of Austel and, soon afterwards, Telstra at last arranged for tests on my line. These were to be carried out from a number of different locations around Victoria and New South Wales. Telstra notified Austel that some 100 test calls would take place on 18 August 1993 to my 1800 free-call service.

First thing that morning I answered two calls from Telstra Commercial, one lasting six minutes and another lasting eleven minutes, as they set up in readiness for the test calls expected that day. Over the rest of that day, there were another eight, perhaps nine calls from Telstra, which I answered. My 1800 phone account arrived, showing more than 60 calls charged to my service some days later. I queried this with Telstra, asking first how I could be charged for so many calls which did not ring, and next, why I should be paying for test calls anyway. In hindsight, I should have asked how more than 60 calls could have been answered in just 54 minutes when the statement shows that some of these calls came through at the rate of as many as three a minute.

Telstra wrote to Austel's John MacMahon on 8 November 1993, informing him that I had acknowledged answering a 'large number of calls' and that all the evidence indicated that 'someone at the premises answered the calls.' Austel asked for the name of the Telstra employee who made these so-called successful calls to my business, and I have also asked for this information, but Telstra didn't respond.

Then on 28 January 1994, I received a letter from Telstra's solicitors in which they referred to 'malicious call trace equipment' Telstra had placed — without my knowledge or consent — on my service between 26 May and 19 August 1993. This was the first I'd heard of it. This device, they explained, apparently caused a 90-second lock-up on my line after a call was answered, meaning that no further call could come into my phone for 90 seconds after I hung up.

This information put another complexity on the matter of those four calls from Mrs Cullen I was charged for in the space of a single 28 seconds and the 100 test calls from Telstra. Even supposing I could answer the phone at such a fast rate, the malicious call tracing equipment, apparently attached to my line at that time, was imposing its 90-second delay between calls, making the majority of these calls impossible. Telstra management, of course, had nothing to say about this.

What was going on? As far as I could tell, most of those 100 test calls simply weren't made; indeed, they couldn't have been made.

Late in 1994, I received two FOI documents concerning these calls. K03433 and K03434 showed 44 calls, numbered between 8 and 63, to the Cape Bridgewater exchange, nine of which had tick or arrow marks beside them. More than once, I asked Telstra what the marks represent but received no response. However, I presume that a technician made these marks against the calls I actually received and answered. A note on K03434 read:

Test calls unsuccessful. Did not hear STD pips on any calls to test no. The TCTDI would not work correctly on the CBWEX (Cape Bridgewater Exchange). I gave up tests.

The technicians themselves gave up on their testing procedure! The second series of tests conducted a year later, in March 1994, fared little better. Telstra's fault data notes that only 50 out of 100 test calls were successfully connected. This information was of no use to me at the time, however, as it was withheld from me until September 1997. All I was to hear in 1994 was the old refrain: 'No fault found.'

Only one official document drew attention to the incapacity of Telstra's testing regime, and this was the Austel Draft Report regarding the COT cases, dated 3 March 1994, which concluded:

Cape Bridgewater Holiday Camp has a history of services difficulties dating back to 1988. Although most of the documentation dates from 1991, it is apparent that the Camp has had ongoing service difficulties for the past six years, which has impacted on its business operations, causing losses and erosion of the customer base.

In view of the continuing nature of the fault reports and the level of testing undertaken by Telecom doubts are raised on the capability of the testing regime to locate the causes of faults being reported.

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Absent Justice Ebook

Blowing the whistle 

Absent Justice - Hon Malcolm Fraser

While in the midst of my arbitration case against the Telstra Corporation, I stumbled upon a freedom of information release by Telstra. The release disclosed that Telstra had documented and redacted my phone conversations with former Prime Minister of Australia Malcolm Fraser see page 12 → Australian Federal Police Investigation File No/1. During those phone conversations, I expressed my concerns that Australia was providing wheat to China in 1967 despite being aware that China was redirecting it to North Vietnam. I'm curious to know how the interception of my telephone conversations during the arbitration proceedings in 1993 and 1994 with Malcolm Fraser is related to my exposure to the government on 18 September 1967 that Australia was trading with the enemy. 

What intrigues me is the reason behind documenting a seemingly harmless conversation about Australia's wheat selling to China while being aware that China was supplying wheat to North Vietnam during a conflict with Australia, New Zealand and the United States. I am confident there must be a significant motive behind this, and I am determined to uncover it.

It's difficult to fathom the extent of harm inflicted on the young Australian, New Zealand, and United States service members by North Vietnam soldiers who were fueled by the wheat supplied to them by their communist Chinese supporters. Sadly, many of these brave service people lost their lives or were left with permanent injuries.

1.     In September of 1967, I brought to the attention of the Australian government that a portion of the wheat allocated to the People's Republic of China on humanitarian grounds was being redirected to North Vietnam during the Vietnam War Chapter 7- Vietnam - Vietcong

2.    Who else in the Australian government was aware that Australian wheat intended for a starving communist China was being redirected to North Vietnam to feed the North Vietnamese soldiers before those soldiers marched into the jungles of North Vietnam to kill and maim Australian, New Zealand, and United States of America troops? Refer to Footnote 82 to 85 FOOD AND TRADE IN LATE MAOIST CHINA, 1960-1978, prepared by Tianxiao Zhu, who even reports the name of our ship, the Hopepeak and how the seaman feared for our lives if we were forced to return to China with another cargo of Australian wheat. This wheat was being redeployed to North Vietnam during the period when Australia, New Zealand, and the United States of America fought the Vietnam Cong in the jungles of North Vietnam.   

3.   During the 1960s, the Australian Liberal-Country Party Government engaged in misleading conduct regarding trade with Communist China despite being cognizant that Australian merchant seamen had vehemently refused to transport Australian wheat to China. The grounds for such an objection were their apprehension that the wheat would be redirected to North Vietnam during the North Vietnam War between Australia, New Zealandand the United States of America. The underlying inquiry is to ascertain the government's rationale for deliberately deceiving the general public and jeopardising the country's troops whose lives were being lost in the conflict in North Vietnam.  Murdered for Mao: The killings China 'forgot'

4.    Why didn't Australia's Trade Minister, John McEwen, correctly and honestly advise the people of Australia why the crew of the British ship Hopepeak had refused to take any more Australian wheat to China because they had witnessed its redeployment to North Vietnam during their first visit to China?  

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“…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

“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

“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

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

Hon David Hawker

“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

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