Summary of events was last edited January 2021
On 7 April 1994, AUSTEL’s Chairman Robin Davey in the company of John MacMahon General Manager of Consumer Affairs personally interviewed me in AUSTEL’s Queens Road headquarters in Melbourne and informed me AUSTEL had investigated my claims against Telstra’s deficient supply of my telephone service and found that my claims had been validated and that the pending Arbitrator Dr Gordon Hughes would be officially notified as AUSTEL’s findings would be clearly defined in their AUSTEL COT Cases Report.
Both commented on the fact their belief was that I would need professional technical expertise to advise the arbitration process of these discovered facts. AUSTEL had suggested Telstra should commit to installing a telecommunications tower at my business premises during the period Telstra had agreed to fix my ongoing telephone problems at my Cape Bridgewater business. The Service Verification Testing process that would be conducted at my business during my arbitration a recommendation agreed to by Telstra because AUSTEL had allowed Telstra to limit their Bell Canada testing (six months previously) at Cape Bridgewater.
The AUSTEL findings which the arbitration resource process and I did not receive during my arbitration was not provided by ACMA until November 2007, thirteen years after my arbitration had been concluded. The watered-down version of AUSTEL’s COT Cases findings although they are damning enough they do not mention AUSTEL believed Telstra would be able to locate the problems still being experienced at my business at the time of my arbitration (see point 211 and 212 in the withheld AUSTEL’s Adverse Findings).
The COT Cases Report report dated April 1994, prepared by the then government communications regulator AUSTEL (now called the Australian Communications Media Authority – ACMA) was officially submitted to all the parties involved in the first four arbitrations as well as various government ministers. The four original COT cases Maureen Gillan, Ann Garms and me had our ongoing telephone problems assessed by Telstra during an assessment process between December 1992 to February 1993. Graham Schorer (the forth COT Case) had his ongoing telephone problems investigated in the Federal Court in April 1993. All four processes failed to fix our ongoing telephone problems.
A government-endorsed arbitration process was set up in April 1994 with strict rules so that a repeat of what had occurred between December 1992 and April 1993, did not happen again.
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 5.24 to 5.32 and 5.77 to 5.79 in this same report AUSTEL Evidence File 1-A the government states:
The Initial Settlements
Mr Smith, Cape Bridgewater Holiday Camp
5,24 “As observed above, four of the original COT Cases pursuing compensation for inadequate service engaged in a process of negotiation with Telecom with AUSTEL acting as an “honest broker”
5.25 “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 indicated the incidences of the faults by way of statements by individuals who have sought unsuccessfully to contact him
- demonstrating a reduced effectiveness of advertising he had undertaken
- 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”.
Telecom had knowledge of at least some of the faults impacting on Mr Smith’s business as well as having access to relevant fault records and monitoring data, It was also aware of the extent of problems and difficulties at its local exchange servicing his business”
5.26 “At the end of the process (December 1992) a “settlement figure” was agreed. It was a condition of the settlement that the amount paid by way of settlement was to remain confidential – a condition that applies in the other cases. Although the details of the settlement are confidential, 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 network standards.”
Ms Hawkins, the Society Restaurant
5.27 “In the case of Mrs Hawkins, “settlement” was reached in January 1993. One of the conditions is understood to be that the business was to receive its telephone service via a modern digital exchange. The business has since been sold”
Mrs Garms and Mrs Gillan
5.28“The initial “settlement” process involving Mrs Gillan and Mrs Garms is outlined above. It is relevant to mention here that as a result of Telecom’s stance that settlement would only be made once the service was being supplied at normal network standards, both Mrs Gillan and Mrs Garms informed AUSTEL that they ceased reporting faults in order the hasten settlemnt process”
Mr Graham Schorer, Golden Messenger
5.29 “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.
5.30 ” Understandably the “original COT Cases”, having reached an initial “settlement” involving
- compensation for pass losses
- restoration of an adequate telephone service
expected that they might be able to resume their businesses afresh”
5,31 ” Unfortunately that did not prove to be the case, Soon after his initial “settlement” Mr Smith reported continuing problems to AUSTEL. Even prior to her settlement Mrs Garms reported continuing faults to AUSTEL. The decision by Mrs Garms and Mrs Gillan not to report faults to Telecom in order to hasten a financial settlement is noted above. Mr Schorer continued to report faults to AUSTEL throughout the period.”
5.32 “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.
As stated above, that arbitration process was intended to ensure that any ongoing telecommunications problems were all fixed before the assessor/arbitrator handed down a finding. See points 1.18, 1.19 5.24 to 5.32, 5.77 and 5.78 in the official public AUSTEL COT Cases Report of 13 April 1994, which notes respectfully:
Settlement and agreement on standard of service
5.77: “As part of the general approach to settlement, Telecom sought AUSTEL’s agreement to, and assistance in, the development of a defined status for a telephone service. The intention is to obtain an agreement on the operational performance of the service against which the parties might sign off once a financial settlement has been finalised.”
5.78 AUSTEL’s findings are that-
- “When the initial settlements were reached with the original COT Cases the standard of service then applicable was not objectively established and there is reason to believe that difficult network faults may have continued to affect their services.”
- “an agreed standard of service, being developed in consultation with AUSTEL to be applied to any case subject to settlement is essential”.
5.79 AUSTEL recommends that:
“Telecom implement a proposed arbitration procedure along the lines outlined in paragraph 5.94 as soon as possible
Telecom specify how it will, under its proposed arbitration procedure, treat losses arising in periods during Telecom had statutory immunity from suit or contractually limited its liability
Telecom treat the COT type cases referred to it by AUSTEL in conformity with Telecom’s original proposed arbitration procedure and where appropriate the upper limit of that procedure should be waived of the claimants in those cases
Telecom in consultation with AUSTEL, develop by 1 May 1994
- a standard of service against which Telecom’s performance may be effectively measured
- a relevant service quality service 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. As shown in my own report titled > Telstra’s Falsified SVT Report, Telstra fabricated their Cape Bridgewater SVT arbitration testing.
The Summary of events page here describes how the Hon David Hawker MP, when he was my local, Liberal government minister, elected by his constituents, helped me to uncover exactly how bad the Telstra telephone system was, in our electorate of Wannon, even going to the extent of writing to me, commending me for the efforts I was making to improve the situation, not just so I could have a reliable telephone service, but so that ALL Telstra subscribers in the electorate of Wannon could have a proper, reliable service also.
Eventually, our joint investigations into Telstra’s corrupt practices uncovered, among other problems, the way that Australia had become the designated dumping-ground for inadequate Ericsson telephone equipment that other western nations were decommissioning from their telephone exchanges. When we revealed to the government that Telstra was NOT decommissioning that faulty Ericsson equipment however but, instead, was actually still installing it here, in Australia, and then, when these facts were also revealed during the COT arbitrations, all support from the government instantly stopped (see Absent Justice Part (1). The government bureaucrats within Telstra, AUSTEL and ACMA then began to dig deep as they searched for ways to stop the COT Cases from proving their claims “… at all cost” (See see:- pages 36 and 38 Senate – Parliament of Australia).
Obviously, this left Mr Hawker with a serious dilemma. Should he continue to help me to expose this fraud that has been perpetrated against both me and the rest of his constituents, a fraud that had now infiltrated the Australian legal system of arbitration, or should he follow the direction of the government in relation to the choices made by those in senior positions within Telstra? Sadly, Mr Hawker (and the Hon Dan Tehan MP, who eventually replaced Mr Hawker in Wannon) simply stopped supporting any of my claims or my requests to have those claims properly and transparently investigated. Even though over the years, Mr Tehan has now followed Mr Hawker and written many more letters to the Liberal National Party government, in support of my attempts to resolve these serious outstanding issues that I first raised with the government back in the mid-nineteen-nineties, (see 12 Alternative remedies pursued), they have still not been resolved.
In January 2018 my partner, Cathy, was with me for my first appointment with our local doctor after I had survived a heart attack and double by-pass 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?”
As I re-edited this section of our story it is now April 2020 and still, every time I go back to finalise various parts of this website Absentjustice my story, and I have to re-read all the complex details that make up the whole, true, terrible story, my anxiety levels instantly begin to rise alarmingly. The situation gets worse though because I also find I am just stuck; I seem to be unable to find the right words to finish off this dreadful story. It seems that, no matter what I do, I just can’t find a way to properly explain this disaster that we have all struggled with for so many years. One part of the problem is, of course, that none of the COT cases – all honest Australian citizens – should ever have been forced into a situation that would eventually leave us all dealing with so many still-unaddressed crimes; crimes that were committed against us while we were officially part of a government-endorsed, legal, arbitration process. There are two parts to this problem for the COTs, though: to begin with, there are those who are now identified below, who worked with Telstra to carry out those still unaddressed crimes, and then there is Telstra, an organisation with so much power that they could stop any authorities (including government authorities) from investigating their unlawful conduct.
Judicial impartiality is a significant element of justice. Judges should decide legal disputes free of any personal bias or prejudice. As a result of a conflict of interest, a judge may be unable to maintain impartiality in a case and thus should be disqualified. During the COT arbitrations, however, our arbitrator (who heard all of the first four cases) had previously also been the legal and business advisor, over a number of years, for one of those first four, although the other three were not made aware of this at the time. Eventually, on 12 May 1995, the arbitrator wrote to notify the TIO (see Open Letter File No 55-A) that the arbitration agreement he had just finished using for my arbitration (mine was the first of the four cases) was ‘not a credible document to have used’, and then the arbitration rules were changed for the other three claimants’?
The arbitrator then increased the time allowed for that same previous client to access FOI documents from Telstra and respond to Telstra’s defence of his case, which gave the previous client a full thirty months longer than he had allowed me. This is, quite clearly, an indication that the arbitrator was seriously biased towards that previous client (see Conflict of Interest). Surely, once the government was alerted to the fact that this same arbitrator had previously assisted this particular COT claimant during that claimant’s Federal Court Action in 1990, in relation to the very same matters that were now before him, the arbitrator should have immediately been disqualified?
This bias by the arbitrator appears to have flowed over to the non-addressing of the Briefcase Affair report I submitted into the Fast Track Settlement Proposal (FTSP) in January 1994. By 21 April 1994, the powers to be were able to turn this FTSP (commercial assessment process) into Telstra’s preferred rules of arbitration. I was NEVER advised to resubmit my FTSP claim documents into the now arbitration process. I assumed that submission would be taken into account as it was officially provided to Is there a more sinister reason as to why this briefcase submission was never defended by Telstra?
As discussed below, government regulatory documents confirm I uncovered sensitive documents left in a Telstra briefcase at my premises. These documents show Telstra knew how severe my telephone problems were, but refused to investigate these complaints unless I first registered them in writing with their lawyers, Freehill Hollingdale & Page. This continual writing up of individual and ongoing telephone faults, to these lawyers, in order to have Telstra investigate these faults almost sent me insane. Instead of keeping this evidence, I was providing it to Telstra and copying the same to AUSTEL, believing this would assist them in locating the problems I was experiencing. I was unaware I would later need this evidence for an arbitration process set up by AUSTEL, the then government communications regulator. This arbitration process meant I had to retrieve, from Telstra and AUSTEL under Freedom of Information, the very same documentation I had provided them. Imagine the frustration of knowing you had provided the very evidence you needed to support your case to the defending party, which was now, with the assistance of the government communications regulator (see Manipulating the Regulator), spuriously hiding it from under the guise of sensitive information i.e. legal professional privilege (LPP) when it was not privileged at all (see Chapter One Burying The Evidence).
The truth surrounding the briefcase affair
My constant complaints to Austel and my local member of parliament the Hon David Hawker MP, finally bore fruit when, for the first time in this story, Telstra investigators came to Cape Bridgewater. Dave Stockdale and Hugh Macintosh of Telstra’s National Network Investigation Division arrived at my office on 3 June 1993. At last, I thought, I would be able to speak directly to people who knew what they were talking about.
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 i.e. Telstra had knowingly misled and deceived me during my first settlement on 11 December 1992 (See Front Page Part Two 2-B)
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. But 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 bells was a document which 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 pay-out. 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.
Just the information in this document of 24 July 1992 was proof that senior Telstra management had deceived and misled me during negotiations with me and showed too 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’.
Not only was Telstra’s area general manager fully aware at the time of my settlement on 11 December 1992 that she was providing me with incorrect information which influenced my judgement of the situation, placing me at a commercial disadvantage, but the General Manager, Commercial Victoria/Tasmania was also aware of this deception.
The use of misleading and deceptive conduct such as this 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.
I took this new information to Austel, and 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: this letter states:
“Further, he claims that Telecom documents (found in the briefcase) contain network investigation findings which are distinctly different from the advice which Telecom has given to the customer 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 comments 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 his inspection. In light of Mr Smith’s claims of continuing service difficulties, I will be seeking to determine with you a mechanism which will allow an objective measurement of any such difficulties to be made”.(See Arbitrator File No 61)
On the 12 July 1993, a newspaper article from the Portland Observer Newspaper is headed ‘Network Complaints Taken Up by MPs’, and notes:
“Problems highlighted by Cape Bridgewater Holiday Camp operator Alan Smith, with the Telecom network have been picked up on by not only other disgruntled customers but Federal politicians. Having suffered a faulty telephone service for some five years, Mr Smith’s complaints had for some time fallen on deaf ears, but it now seems people are standing up and listening. Federal Member for Wannon, David Hawker, described the number of reports of faulty and inadequate telephone across Australia as alarming. Mr Hawker said that documents recently presented to him showed that the problems people had been experiencing Australia wide had been occurring repeatedly in the Portland region.” (See Cape Bridgewater Chronology of Events File No -17)
The pressure on all four of us COT cases was immense, with TV and newspaper interviews as well as our continuing canvassing of the Senate. The stress was telling by now but I continued to hammer for a change in rural telephone services. The Hon David Hawker MP, my local Federal member of parliament, had been corresponding with me since 26 July 1993.
“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.” (See Arbitrator File No/76)
On 27 August 1993, Telstra’s corporate secretary (during the period he was a Telecommunications Industry Ombudsman (TIO) board member) wrote to me about Telstra documents that were inadvertently left in a briefcase at my premises on 3 June 1993 (see Chapter Two Arbitrator / Part One), noting:
“Although there is nothing in these documents to cause Telecom any concern in respect of your case, the documents remain Telecom’s property and therefore are confidential to us. …
“I would also ask that you do not make this material available to anyone else.” (See Open Letter File No/2)
Telstra’s FOI document dated 23 August 1993 and labelled folio R09830, with the subject of ‘The Briefcase’, is alarming to say the least. This document, which was copied to Telstra’s corporate secretary, notes:
“Subsequently it was realised that the other papers could be significant and these were faxed to Craig Downing but appear not to have been supplied to Austel at this point.
“The loose papers on retrofit could be sensitive and copies of all papers have been sent to Ross Marshall.” (See Arbitrator File No 62)
Rural Automatic Exchange (RAX) 1987 to August 1991
AUSTEL’s sanitized public report, provided to the communications minister The Hon Michael Lee MP, shows AUSTEL stated the telephone exchange at Cape Bridgewater, for the first three-and-a-half-year period I commenced running my business, was a modern ARK exchange – designed more than 20 years after the RAX exchange had been installed at Cape Bridgewater.
The RAX exchange (which was unmanned) had only 8 final selectors shared between myself and the 130 residences of Cape Bridgewater. This false reporting by the Australian Communications Regulator and Telstra allowed Telstra’s witnesses (their local Portland technicians) to submit known false statements under oath concerning this service. service provided by Telstra.
One particular Telstra witness statement sworn under oath by a Portland technician dated 12 December 1994 who we shall name as ‘Joker One‘ (see False Witness Statement File No 14) states:
“The Cape Bridgewater RAX exchange was fully equipped to handle 90 subscribers. At the time it was replaced with the Portland to Cape Bridgewater RCM systems it had 66 subscribers and therefore was not operating to its full capacity. Mr Smith is the only customer at Cape Bridgewater with a consistent complaint history”
Whatever made this Telstra employee state the ‘RAX exchange was fully equipped to handle 90 subscribers’ when it is clear from government records Burying The Evidence File) that the Cape Bridgewater RAX exchange was very old technology designed in the 1950s [sic] for very low calling rate areas? for example (based on the unit having 8 Final Selectors) the maximum calls that could be handled at the same time irrespective of the number of services connected (of which were 66 in 1991).
If there were, say, four local to local calls in progress, then only four calls to local numbers could be handled from outside the area at the same time.
By 1991 the Cape Bridgewater RAX exchange serviced 66 homes.
Those 66 phone lines (subscribers) equated to at least two adults per house – 132 residents-plus children. If four residents were using their phone service at the same time then there were only four lines available for the remaining 128 residents plus their children. And, over holiday periods and long weekends, the Cape Bridgewater population grew exponentially. Mobile phones could not be successfully used in Cape Bridgewater at the time this false statement was made. In August 1991, this RAX was replaced with an unmanned switching system called an RCM.
One of the Telstra technicians, whom I refer to below as Joker Three, and who was one of those who knowingly and deliberately misled and deceived the arbitrator during my arbitration, is a respected member of the Portland community in a position to often make decisions affecting Portland residents as well as the local council. This, I believe, puts me in a difficult situation: i.e., do I have a moral obligation to tell my Federal Member of Parliament about this man’s appalling past behaviour? Clearly, lying under oath in a formal litigation process, or at any other time for that matter, is not something that would meet the expected criteria for a person whose professional advice is often sought by others.
I have sat on this evidence for more than twenty years now, without publicly naming this Joker, or identifying any of the six other Telstra employees who also lied in their arbitration witness statements, even though, so far, none of those Australian citizens has come forward to explain why they lied as they did, during my arbitration. Having clear proof of these types of crimes have taken a serious toll on both my partner’s health and mine, and we deserve to have some peace of mind in the years that are left. For this reason, I am, again, informing my local Member of Parliament, The Hon Dan Tehan MP, this time on 14 January 2019, of these still unaddressed arbitration issues. I hope this will prompt him to remind the government that it was at the persistence of his predecessor, The Hon David Hawker MP, The Hon Richard Alston (the then Shadow Minister for Communications) and the government communications regulator that I ventured down the path that has to lead me to where I am today.
Between April 1988 and through to my arbitration of 1994 and 1995, I continued to experience faults with my phone service, particularly call drop-outs when, part-way through a conversation, the line would simply go dead, and short duration rings when the phone would ring once or twice and then stop, with no-one there if we picked up the receiver. In October of 1992, Joker Three arranged for two testing machines (called ‘Elmi’ machines) to be installed, one at the local Cape Bridgewater exchange and the other at my office.
In the afternoon of 13 October 1992, I reported four calls dropping out, at 1.20, 1.40, 2.00 and 3.00, and an occasion when I had answered the phone to find a dead line. Despite the Elmi machines, the Telstra technicians found, as they had in so many instances before, no faults that they could detect. What was going on?
In June 1993, I obtained a bundle of Telstra related documents from AUSTEL, one of those documents was a hand-written file note stating,
“We had the Elmi disconnected at the RCM [unmanned telephone exchange] and were installing it at Mr Smith’s house and the CCAS showed no evidence of above [not receiving ring] 1.20, 1.40, 2.00 and 3.00.” (See My Story Evidence File 1)
This was simply not the case at all; I knew Joker Three was not installing it at my house at this time; it was already installed. So I asked Telstra to supply their Elmi print-outs from September–October 1992. Some weeks later a number of documents arrived, including tapes which show that the call drop-outs and dead lines that I had experienced appeared on Telstra’s Elmi tapes (see My Story Evidence File 2) as answered calls at approximately 1.30 pm and 3 pm.
I could not fathom why a local technician would state that the Elmi equipment was disconnected at the exchange and were installing it at my house when these two print-outs show that it was actually installed and operating at both locations, albeit incorrectly.
If Joker Three says that the file note in My Story Evidence File 1 is not his handwriting and that he knows nothing in regards to the information provided on this document, then some other Joker at the Portland telephone exchange misinformed Telstra management concerning my legitimate complaints.
At point 5.8 in the arbitrators award under the heading “Faults Caused by Claimant” the arbitrator notes: “A simple example is said to involve the claimant [me] leaving the phone off the hook”. At point 21 in the False Witness Statement File No 13-A), prepared by Joker Three when discussing this Elmi equipment on 8 September 1993 (twelve months later) he: “concluded that Mr Smith’s telephone had been off the hook”.
I doubt that had the arbitrator been aware of Joker Three’s past history of lying about this Elmi machine whether he would have taken this witness statement into consideration when making his award.
A Telstra minute, dated 2 July 1992, concerning the Portland AXE telephone exchange states:
“Our local technicians believe that Mr Smith is correct in raising complaints about incoming callers to his number receiving a Recorded Voice Announcement saying that the number is disconnected.
“They believe that it is a problem that is occurring in increasing numbers as more and more customers are connected to AXE.” (See False Witness Statement File No 3-A)
This one Telstra minute, dated 2 July 1992, (on its own) shows what a liar Joker Three is.
The author of this AXE document, whom I have named Joker Two, like Joker Three also signed an arbitration witness statement, dated 12 December 1994, which told a completely different story to what he and Joker Three knew about the Portland AXE exchange. In his witness statement, he states, “I had perceived problems” but then says he had not observed any deficiencies in the service provided by Telstra. Yet it is clear from the AXE document that this is not the case.
To further support my claims that Telstra already knew my phone complaints were valid can best be viewed by reading Folios C04007 and C04008, headed TELECOM SECRET (see Front Page Part Two 2-B) states:
“Legal position – Mr Smith’s service problems were network related and spanned a period of 3-4 years. Hence Telecom’s position of legal liability was covered by a number of different acts and regulations. … In my opinion Alan Smith’s case was not a good one to test Section 8 for any previous immunities – given his evidence and claims. I do not believe it would be in Telecom’s interest to have this case go to court.
“Overall, Mr Smith’s telephone service had suffered from a poor grade of network performance over a period of several years; with some difficulty to detect exchange problems in the last 8 months.”
Why hasn’t the Australian government demanded answers from Telstra management as to why Joker Two and Joker Three, have not been made to account for their unlawful conduct?
It is clear from much of the information supplied by David Hawker, MP, to me in 1993 and 1994, that many people as far away as Penshurst, Apsley, Hamilton, Timboon, Victoria Valley and through to Portland were complaining to him about the phone problems in his electorate. The Hon Mr Hawker was passing on many of those complaints to me for the COT cases to take to Parliament House, Canberra, in our pursuit to have the Senate investigate why so many rural south-west citizens were experiencing the same problems as my business (see Introduction File No/11-E).
A letter dated 6 April 1993, from Cathy Lindsey, Coordinator of the Haddon & District Community House Ballarat (Victoria) to the Editor of Melbourne’s Herald-Sun, read:
“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.”
(Because of a number of reports regarding this ‘piercing noise’, Ray Morris from Telstra’s Country Division arranged to have my service switched to another system.” (See My Story Evidence File 10-B)
The pressure on all four of us COT cases was immense, with TV and newspaper interviews as well as our continuing canvassing of the Senate. The stress was telling by now but I continued to hammer for a change in rural telephone services. The Hon David Hawker MP, my local Federal member of parliament, had been corresponding with me since 26 July 1993.
“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.”(See Arbitrator File No/76)
On 18 August 1993 The Hon David Hawker MP again wrote to me, noting:
“Further to your conversations with my electorate staff last week and today I am enclosing a copy of the correspondence I have received from Mr Harvey Parker, Group Managing Director of Commercial and Consumer division of Telecom.
“I wrote to him outlining the problems of a number of Telecom customers in the Western Districts, including the extensive problems you have been experiencing.” (See Arbitrator File No/77 and Arbitrator File No/82)
Between 1990 and 2001 I continued to sponsor underprivileged groups to stay at the camp during the weeks that the venue was not fully booked out.
The holiday Camp could sleep around 90 to 100 persons in fourteen cabins. I arranged sponsored food purchases through the generosity of a number of commercial food outlets and these groups then just used the camp facilities — it didn’t actually cost me anything other than a small amount of electricity and gas. At one point around this time, May 1992, I had organised a charity week for kids from Ballarat and the South West, including Warrnambool, Hamilton and Portland. This group was organised by Sister Maureen Burke IBVM, the Principal of Loreto College in Ballarat, and I am sure she would not be offended to know that I think of her as the ‘mother’ of the project.
Arrangements regarding food, transport, and any special needs the children might have, had to be handled over the phone, and of course, Sister Burke had enormous problems making phone contact, Calls were either ringing out or she was getting a deadline, or a message that the number she was ringing was not connected to the Telstra network. Sister Burke knew otherwise. On two particular occasions in 1992, after trying in vain all through one week, she decided to drive the 3½ hours to make the final arrangements for those camps.
Twelve months later, in March of 1993, Sister Karen Donnellon, also from Loreto College, tried to make contact to arrange an annual camp. Sister Donnellon later wrote:
“During a one week period in March of this year I attempted to contact Mr Alan Smith at Bridgewater Camp. In that time I tried many times to phone through.
Each time I dialled I was met with a line that was blank. Even after several re-dials there was no response. I then began to vary the times of calling but it made no difference.”
Some years later, I sent Sister Burke an early draft of my manuscript Absent Justice My Story‘ concerning my valiant attempt to run a telephone dependent business without a dependent phone service. Sister Burke wrote back,
“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”
Of course, Sister Maureen Burke and Sister Karen Donnellon persisted with their continuing battle to find a way to get a proper telephone connection for the holiday camp, partly because it was a low-cost holiday for all concerned but also because these wonderful women were well aware that my business was continuing to exist, albeit ‘by the skin of its teeth’, even though Telstra’s automated voice messages kept on telling prospective customers that the business did not exist or, alternatively the callers simply reached a dreaded silence that appeared to indicate that the number they had called was attached to a ‘dead’ line. Either way, I lost the business that may well have followed if only the callers could have been successfully connected to my office.
Comments made from the Herald Sun newspaper dated 30 August 1993, confirm just how damaging some of these newspaper articles were to my already ailing business with statements like:
“The Royal Children’s Hospital has told a holiday camp operators in Portland that it cannot send chronically ill children there because of Telecom’s poor phone service. The hospital has banned trips after fears that the children’s lives could be at risk in a medical emergency if the telephone service to the Portland camp continued to malfunction”.
The centre’s stand follows letters from schools, community groups, companies and individuals who have complained about the phone service at Portland’s Cape Bridgewater Holiday camp.”
Youths from the Royal Children’s Centre for Adolescent Health, who were suffering from “chronic illnesses”, visited the camp earlier this year.
Group leader Ms Louise Rolls said in a letter to the camp the faulty phones had endangered lives and the hospital would not return to the camp unless the phone service could be guaranteed” (Arbitrator File No/90)
Five years after this article was released, Helen Handbury (sister to Rupert Murdoch, who then owned and still owns the Herald Sun visited the holiday camp). Helen’s remarks about my story, after reading the first draft can be viewed by clicking on to the following Australian Federal Police Investigations-link and scrolling down to Chapter Four.
Regardless of the negative effects that some of these newspaper articles were having on the well-being of my business, particularly when they were combined with various damaging comments from customers, such as: “… the faulty phones had endangered lives and the hospital would not return to the camp unless the phone service could be guaranteed”, I kept focused on what COT was pushing for: a Senate Inquiry into Telstra’s unethical treatment of our small group of legitimate claimants.
A further letter of support for the Senate Inquiry from a worker at D. Madden & Co of Warrnambool (Lawyers), dated 10/11/93, gave added heart to my decision to fight on. (My name had been passed to Madden & Co by The Hon David Hawker, with regard to a public meeting COT was organising.)
“I am writing in reference to the proposed Senate Committee Investigation into Telstra.
As you are aware, I am employed as a telephonist with a large legal firm in Warrnambool. In the course of my employment, and particularly during the months of July and August this year, numerous service faults have been brought to my attention. These problems include:
- Calls being disconnected during conversation.
- Recorded messages informing Melbourne clients and callers that the number has been disconnected when the correct number was dialled.
- An engaged signal received by callers despite a number of lines being available.
- Complaints from callers that the line has rung out when no ringing tone has been received at the number dialled.
Our firm duly contacted Telstra on a number of occasions in an effort to have these fault rectified. However, Telstra technicians were constantly unable to identify the numerous problems and subsequently remedy our complaints.”
Rural subscribers wrote to TV stations and newspapers supporting my allegations that, with regard to telephone services, rural small-business people, as well as the general public, suffered a very bumpy playing field compared to our city cousins. David M. Thomson & Associates, Insurance Loss Adjusters in Ballarat, wrote to the producer of Channel 7’s ‘Real Life’, a current affairs program:
“I have watched with interest the shorts leading up to tonight’s program as I have similar problems to the man at Cape Bridgewater.
Our office is located in Ballarat and due to Telstra structure the majority of our local calls are STD-fee based.
On many occasions we have been unable to get through to numbers we have dialled, often receiving the message ‘This number is not connected’ or similar messages which we know to be untrue.
Clients report that they often receive the engaged signal when calling us and a review of the office reveals that at least one of our lines was free at the relevant time.
We have just received our latest Telstra bill which in total is up about 25–30% on the last bill. This is odd because our work load in the billing period was down by about 25% and we have one staff member less than the previous billing period.”
On 9 December 1993, The Hon David Hawker wrote to thank me for:
“…your persistence to bring about improvements to Telecom’s country services. I regret that it was at such a high personal cost.” (See Arbitrator File No/82)
This was very affirming, as was another letter, dated 9 December 1993, from The Hon David Beddall, MP, Minister for Communications in the Labor Government, to Senator Michael Baume, senator for New South Wales, that says:
“Let me say that the Government is most concerned at allegations that Telecom has not been maintaining telecommunications service quality at appropriate levels. I accept that in a number of cases, including Mr Smith’s there has been great personal and financial distress This [sic] is of great concern to me and a full investigation of the facts is clearly warranted.” (See Arbitrator File No/82)
A Portland Telstra technician, whom I have named Joker Seven, experienced major problems during his official fax-testing process of my service on 29 October 1993, nevertheless he advised the arbitrator that there was no problem with that service, despite what the following Telstra document shows:
“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. … Even if the page was sent upside down the time and date and company name should have still appeared on the top of the page, it wasn’t. During a received call the machine failed to respond at the end of the page even though it had received the entire page (sample #3).” (See False Witness Statement No 7-A)
Didn’t this local Telstra technician understand that lying under oath in his witness statements assisted Telstra to conceal from the government and the arbitrator how bad the phone system really was in his hometown of Portland? Did he not understand that hindering my chances of getting a fair hearing in the arbitration also hurt his own family and friends, who were also residents of our region?
Joker Seven, new I was a volunteer for the Cape Bridgewater Country Fire Authority (CFA). Chapter Seventeen in https://www.absentjustice.com/?
Also on Tampering With Evidence it shows that not only did Telstra set out to discredit me by implying I was just too tired to have my TF200 phone tested, but after Telstra removed the phone, it was tampered with before it arrived at Telstra’s Melbourne laboratories: someone from Telstra poured beer into the phone. Telstra then alleged, in its arbitration defence report, that sticky beer was the cause of the phone’s ongoing lock-up problems, not the Cape Bridgewater network. This one wicked deed, along with the threats I received from Telstra during my arbitration, is testament that my claims should have been investigated years ago.
So, even though I carried out my civic duties as an Australian citizen, over and beyond by supplying vital evidence to the AFP, as well as fighting out-of-control fires, I was still penalised on both those occasions during my arbitration.
Joker Seven has still not come forward and advised the arbitration process what he knows really happened on this particular day, on the 27 April 1994.
The cover-up continues
This internal Telstra document discusses the errors experienced at the Cape Bridgewater unmanned exchange, at least up to July 1991, and states:
“When the ‘A’ direction of system 2 was initially tested, approximately 11000 errors per hour were measured. In the ‘B’ direction, approximately 216 errors per hour were measured, 72 errors per hour is the specified number allowable.” (See Main Evidence File No 22)
False Witness Statement File No 13-B), dated July 1993, clearly shows Telstra continued to experience degraded errored seconds and minutes in the newly installed exchange at Cape Bridgewater. Worse, even though this new RCM exchange was installed in August 1991, Telstra did not realise it hadn’t connected the fault alarm system, from the main Portland manned exchange to this unmanned Cape Bridgewater exchange (18kms from Portland), until March 1993 (18 months later)! This March 1993 document reports the following:
|“Initial error counter readings, Portland to Cape Bridgewater direction”:|
|System 1||System 2||System 3|
“At this stage we had no idea over what period of time these errors had accumulated.
- the alarm system on all three RCM systems had not been programmed. This would have prevented any local alarms being extended back to Portland.”
This False Witness Statement File No 13-A), signed by Joker Three, is possibly the worst example of Telstra employees swearing under oath to something they knew was a lie. At point 9 in this document the author states:
“I checked the CRC error counters regularly between the date the RCM systems were installed and February 1994 when I left Telecom. Checking the CRC counters in this way was a normal maintenance practice. I can recall checking the CRC counters prior to March 1993. When I checked the CRC counters pre March 1993 I did not observe any errors that could have impacted upon the telephone service provided to Cape Bridgewater customers. A typical reading for each RCM system was 5 to 10 errored seconds, no degraded minutes and no severely errored seconds. I regularly checked the CRC counters for possible faults particularly when Mr Smith reported complaints.”
At point 27 in this same False Witness Statement File No 13-A, Joker Three officially advises the arbitrator “The standard of service provided to Mr Smith was entirely consistent to be a very good level of service provided to other rural customers.”
This point 27 statement does NOT match False Witness Statement File No 13-B or the many statements made by the government communications regulator in its own AUSTEL’s Adverse Findings, of 3 March 1994. (See points 10, 17, 18, 23, 37, 39, 40, 42, 44,46,47, 53, 56, 61, 62, 70, 75, 76, 79, 86, 87, 89, 91, 92, 93, 98, 100, 101, 104, 105, 109, 110, 111, 112, 118, 115, 129, 130, 136, 144, 151, 153, 158, 170, 173, 186, 187, 188, 206, 207, 208, 209, 210, 211 and 212.
In particular, at point 212, AUSTEL notes: “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.” This statement suggests the government communications regulator believed my phone problems would not be located.
Had Telstra’s management conveyed to the arbitrator that AUSTEL had doubts “on the capability of the testing regime to locate the causes of faults being reported”, then the arbitrator’s award would have had to allow provisions for me to further claim against Telstra once the fault causes were located and fixed.
It is also clear from AUSTEL’s Adverse Findings, at point 209, which states, “Cape Bridgewater Holiday Camp has a history of service 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 customer base,” that the government’s own findings prove that Joker Three knowingly lied under oath.
At point 115, the government communications regulator notes:
“Some problems with incorrectly coded data seem to have existed for a considerable period of time. In July 1993 Mr Smith reported a problem with payphones dropping out on answer to calls made utilising his 008 number. Telecom diagnosed the problem as being to ‘Due to incorrect data in AXE 104, CC-1. Fault repaired by Ballarat OSC 8/7/93.’ The original deadline for the data to be changed was June 14th 1991. Mr Smith’s complaint led to the identification of a problem which had existed for two years. (See AUSTEL’s Adverse Findings)
I started my over-forties singles club in early 1991 to increase my revenue intake by catering to Melbourne and Ballarat singles. However, any Ballarat business with a free call 008 service between June 1991 and July 1993 would have experienced a substantial loss in revenue, as I did, due to this and numerous other faults that the government documented in its 69-page AUSTEL’s Adverse Findings.
I again ask: Why has the Australian government branded me a vexatious litigant when it is well-documented throughout AUSTEL’s Adverse Findings that it was my persistence that brought about many changes for the good in rural Victoria?
Portland/Cape Bridgewater logbook
At Point 25 in his False Witness Statement File No 13-B Joker Three notes
“During the period that I was maintaining the Portland exchange my file containing details relating to Mr Smith’s service complaints was a similar size to my file for the other 7000 odd subscribers connected directly to the Portland exchange”.
Between February 1994 and April 1995, I tried, a number of times, to get my hands on the original version of the Portland/Cape Bridgewater log book, and so did the Commonwealth Ombudsman’s Office, on my behalf; we were both unsuccessful. This logbook was particularly important because it would have included information recorded by ‘Joker Three’ in relation to all the faults I had registered with the exchange, as well as the faults registered by ‘the other 7,000-odd subscribers connected directly to the Portland exchange’. Neither the arbitrator (Dr Hughes) nor Telstra’s CEO (Frank Blount) would, however, agree to access this very important document (and/or documents). I also requested this information under the official, legal discovery process but didn’t even receive a response from the arbitrator. Even Telstra’s own Senior Protective Services Officer claimed in his witness statement that he could not locate this log book (see Main Evidence File No 30).
Portland Tourist Information Centre
It is important we conclude these falsehoods by combining AUSTEL’s letters to Telstra dated 6 January, 27 January and 4 October 1994 (see False Witness Statement Files 15-B to 15-F) because these show AUSTEL knew there were many problems affecting a number of other Portland and Cape Bridgewater Telstra customers.
AUSTEL’s 27 January 1994 letter to Telstra’s Steve Black (see File 15-C) states:
“You are probably aware of Mr Smith’s ongoing complaints as to the efficacy of his 008 service – he maintains that many callers receive a RVA advising that the number is no longer connected.”
“Further to that point is the experience of the Portland Tourist Information Centre which is now complaining of precisely the same problem. It is understood that these issues gained prominence after considerable incidences of problems from various points throughout Australia following a nation-wide promotion of south western Victoria. A copy of a fax from the Centre is attached. You may wish to consider this issue further.
Joker Three and Joker Seven have been prominent identities in Portland over the past twenty-years, advising interested parties on a number of issues. This suggests they have never really understood the damage their misleading and deceptive statements caused, not just to me but to others in the Portland region. Had the arbitrator full knowledge that my complaints of ongoing problems were real, and not a figment of my imagination, this may well have prompted him to have these complaints investigated by an impartial entity instead of Telstra, who were, after all, the defendants in my government-endorsed arbitration. NO testing of my service was undertaken by anyone other than Telstra during my arbitration.
Before the arbitrations actually began
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.
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.
Collusion at its worst
As has been shown in our Prologue Chapter One page there is more to this DMR Inc Canada technical reporting issue that the TIO and arbitrator wants to acknowledge.
On 11 October and 16 November 1994 AUSTEL wrote to the Telstra arbitration liaison officer under the heading Service Verification Test Issues, outlining their concerns regarding the deficiencies in the testing process conducted at the Cape Bridgewater Holiday Camp (see Main Evidence File No/2). Telstra’s CCAS data for the day (29 September 1994) testing took place at my premises confirms that not one of the incoming tests connected to any of my three business lines met the regulator’s mandatory requirements.
Even though I advised Dr Hughes, between 2 October 1994 and 15 February 1995, that Telstra’s unsupervised SVT process at my premises was grossly deficient, he ignored my letters and the evidence attached to them as Chapters Three to Five in our Prologue page shows. Despite my pleas, and my technical consultant George Close’s evidence showing my business was suffering from a 49 per cent unavailable service on one phone line and a 52 per cent failure rate on the other, Dr Hughes still disallowed his technical consultants the time they required to investigate these still unaddressed faults (see Introduction File No/4-D).
Letters from AUSTEL to Telstra, prior to the SVT process, alerted Telstra that testing equipment set up at the local exchange and routed through to my business caused even more problems to my business (see Introduction File No/4-F), and yet they used the same equipment for their SVT process.
At point 212, in AUSTEL’s Adverse Findings they note:
“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.”
No one, to date, has investigated why Warwick Smith (the administrator to my arbitration) did not ensure my rights, as a claimant, were protected when the defendant was allowed to perform its own arbitration Service Verification Testing on all of my three service lines.
At point 27 in one of Telstra’s arbitration witness statements (see False Witness Statement File No 13-A), this Telstra witness officially advised the arbitrator “The standard of service provided to Mr Smith was entirely consistent to be a very good level of service provided to other rural customers.”
This point 27 statement does NOT match the government communications regulatory own covert findings on their investigation into my complaints as AUSTEL’s Adverse Findings show (see above)
Just as important is, why did the arbitrator, Dr Hughes, allow the most important technical issue in the whole COT arbitration process – the testing of the COT cases’ business service lines (the very reason for the arbitration process in the first place) – to be conducted, unsupervised, by the defendant, who was technically on trial for not providing the claimants with service fit for purpose? Was covering up Telstra’s ailing copper-wire network more important than the businesses and lives of those who originally dared challenge the system on behalf of all Australians?
It was not AUSTEL’s intent to have the COT Cases to again duped as they were prior to their first settlement processes with Telstra. In my case, it was what I found in a briefcase inadvertently left at my premises by a Telstra employee that prompted AUSTEL to ensure that all of the COT Cases phone problems had been fixed before the arbitrator and/or assessor made their final judgement – hence the SVT testing regime.
While we are not glorifying Juliana Assange in our Hacking Julian Assange as an Australian national hero to the free world, it that he and his young friends played a very important part in the COT four arbitrations. The profile of these youths fit the profile of Julian Assange and the hackers mentioned in a number of editorials. We have discussed this hacking issue because if it was was not Julian Assanage and his young friends who contacted COT spokesperson, then someone else in Melbourne Australia decided to expose what they did, and as it turned out (see absentjustice.com brief summary part 1 absentjustice.com brief summary part 2, Australian Federal Police Investigations, Tampering With Evidence and the Destruction of Evidence Telstra and a number of their employees did pervert the course of justice during the COT arbitrations just as the three young hackers advised Graham Schorer was happening. Therefore, it was important we raise the Julian Assange issue here because of the serious nature of what these hackers saw as an injustice against fellow Australian citizens.
The legal research paper https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2817646 shows there are other Australia citizens, not just the COT cases, who see loopholes in the justice given out by some of the Telecommunication Industry Ombudsman staff. In many cases, these ombudsmen have not even been judges and yet the Australian Establishment gives them the right to decide legal issues, which have – in many cases, as our story shows – ruined the lives of the complainants. These factors were revealed to numerous senators and government ministers alike.
During the independent Senate Committee investigations of 1997 to 1999, there were twenty-three senators who were either directly involved or who were provided with regular updates in relation to those investigations into the COT arbitrations. Out of those twenty-three, the following six individual Senators all made official statements dated 6 March 1999 (See > Eggleston, Sen Alan – Bishop, Sen Mark – Boswell, Sen Ronald – Carr, Sen Kim – Schacht, Sen Chris and Alston, Sen Richard) which all formally record how those six senators believed that Telstra had ‘acted as a law unto themselves’ throughout all of the COT arbitrations.
Furthermore, In-Camera Hansard records that were withheld under government privilege, but which I have discussed in An injustice to the remaining 16 Australian citizens, show that a number of other Senators thought the same. Then we have one of two Telstra executives who, without being named by the Senate, were both criticised by the Senate committee because of their gross unethical conduct during the committee’s investigations: both have gone on to bigger and better things because one is now a most senior Telstra executive while the other operates a Dispute Resolution Centre in Melbourne.
It is therefore quite clear, from both official Government and Senators’ records, that the whole COT process has been seriously condemned by people who knew exactly what they were talking about, and that these two Telstra people in particular, both heavily involved in those same COT processes in the past, are now earning a very good living with one handling government and private disputes and the other working as a most senior Telstra executive. This would be worrying enough on its own but to add that both the administrator and the arbitrator to those same COT arbitrations have since been awarded Order of Australia medals, suggest fairly clearly that there is – still – something seriously wrong with Australia’s entire arbitration/dispute resolution process. Forcing citizens of any country into arbitration without the necessary documents they required to at least support some of their claims is grossly undemocratic but for this to have happened in Australia purports to be highly democratic is why my claims on absentjustice.com need to be investigated.
This official Senate Hansard record dated 20 September 1995, under the heading A MATTER OF PUBLIC INTEREST shows a very emotional senator discussing the injustices that we four COT claimants (i.e., Ann Garms, Maureen Gillan, Graham Schorer and Alan Smith (me) suffered prior, during and after our so-called government-endorsed arbitration’s i.e;
“Eleven years after their first complaints to Telstra, where are they now? They are acknowledged as the motivators of Telecom’s customer complaint reforms. … But, as individuals, they have been beaten both emotionally and financially through an 11-year battle with Telstra. …
“Then followed the Federal Police investigation into Telecom’s monitoring of COT case services. The Federal Police also found there was a prima facie case to institute proceedings against Telecom but the DPP [Director of Public Prosecutions], in a terse advice, recommended against proceeding. …
“Once again, the only relief COT members received was to become the catalyst for Telecom to introduce a revised privacy and protection policy. Despite the strong evidence against Telecom, they still received no justice at all. …
“These COT members have been forced to go to the Commonwealth Ombudsman to force Telecom to comply with the law. Not only were they being denied all necessary documents to mount their case against Telecom, causing much delay, but they were denied access to documents that could have influenced them when negotiating the arbitration rules, and even in whether to enter arbitration at all. …
“This is an arbitration process not only far exceeding the four-month period, but one which has become so legalistic that it has forced members to borrow hundreds of thousands just to take part in it. It has become a process far beyond the one represented when they agreed to enter into it, and one which professionals involved in the arbitration agree can never deliver as intended and never give them justice.”
“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 unducement to go into arbitration.
“Telecom has treated the Parliament with contempt. No government monopoly should be allowed to trample over the rights of individual Australians, such as has happened here.” (See Senate Hansard Evidence File No-1).
On the 27 January 1999, after reading my manuscript (not yet published) which refers to what all of us COT Cases had to endure during and after our arbitrations Senator Kim Carr stated:
“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” (See Arbitrator Evidence File No 66)
Senator Kim Carr again criticised the handling of the COT arbitrations on 11 March 1999 as the following Hansard link shows. Addressing the government’s lack of power, Senator Carr stated:
“What I do make a comment on is the question of civil liberties and the rights of citizens to approach this parliament and seek redress for their grievances when corporate power, particularly in a publicly owned corporation, has been abused. And there can be no question that that is what is at the heart of this issue.”
And addressing Telstra’s conduct, he stated:
“But we also know, in the way in which telephone lines were tapped, in the way in which there have been various abuses of this parliament by Telstra—and misleading and deceptive conduct to this parliament itself, similar to the way they have treated citizens—that there has of course been quite a deliberate campaign within Telstra management to undermine attempts to resolve this question in a reasonable way. We have now seen $24 million of moneys being used to crush these people. It has gone on long enough, and simply we cannot allow it to continue. The attempt made last year, in terms of the annual report, when Telstra erroneously suggested that these matters—the CoT cases—had been settled demonstrates that this process of deceptive conduct has continued for far too long.” (See > http://parlinfo.aph.gov.au/parlInfo/chamberhansards1999-03-11)
The Senate Hansard of 11 March 1999 includes quotes confirming just how scathingly critical a number of Senators were in relation to the way Telstra ran the COT arbitrations, and not the arbitrator Dr Hughes even going so far as to note that it was “a process subject to unilateral amendment by Telstra”. That the committee was able to state Telstra used their “unilateral” control of the arbitration process to avoid supplying the promised documents shows the arbitration process failed the COT cases.
Senator Schacht also was possibly more vocal when he stated:
“I rise to speak to this statement tabled today from the working party of the Senate Environment Communications, Information Technology and the Arts Legislation Committee—a committee I served on in the last parliament—that dealt with the bulk of this issue of the CoT cases. In my time in this parliament, I have never seen a more sorry episode involving a public instrumentality and the way it treated citizens in Australia. I agree with all the strong points made by my colleagues on both sides who have spoken before me on this debate. What was interesting about the Senate committee investigating this matter over the last couple of years was that it was absolutely tripartisan—whether you were Labor, Liberal or National Party, we all agreed that something was rotten inside Telstra in the way it handled the so-called CoT cases for so long. The outcome here today is sad. There is no victory for citizens who have been harshly dealt with by Telstra.”.http://parlinfo.aph.gov.au/parlInfochamberhansards1999-03-11)
Senator Mark Bishop’s statement shown below also notes
Significant issues do arise. I think it is appropriate to refer to the final paragraphs of the committee report. In the second to last paragraph, the report of the committee tabled by Senator Eggleston says:
Estimates of Telstra’s costs in relation to the CoTs issue since the claims were made exceed $20 million ($14.285 million to 1997 and rising). Most of the expenditure has been spent, not on settlement but on administrative and legal costs. It became quite clear early in the process that the claimants had in fact been disadvantaged by malfunctions in their telephone system. It is difficult to understand why Telstra appeared to prefer to deny that there was a problem and then prolonged the difficulties in establishing the extent of that problem.
The final sentence reads:
In the Committee’s view, Telstra should now seek to reach a negotiated agreement with the interested parties.
If fault is to be allocated at this very early stage of the final lap, that fault lies at the door of Telstra. It really is appropriate for Telstra, a $100 billion corporation, to stop using its monopoly power, to stop retaining the services of dozens of highly paid solicitors and to come to the table and to seek to reach a negotiated agreement with these four or five persons. It is simply outrageous that Telstra, which is still a public corporation, can spend something in the order of $20 million – Senator Boswell – Some $24 million.
“I am informed by Senator Boswell it is 24 million – defending a claim when the claim before it is somewhere between $2 million or $4 million. This is simply an outrageous proposition and a waste of public money” (See aph.gov.au/parlInfo/search/displaychamberhansards1999-03-11
The Senate intervention to stop this unlawful conduct only assisted the five ‘litmus’ COT cases (four) had not yet reached arbitration. The remaining 16 COTs had already been through their government-endorsed processes, but without the bulk of their FOI requests/evidence. By the Senate not assisting the remaining 16 to obtain their FOI requests, those COTs were unable to secure settlements that reflected their true losses. Why were the 16 cases that had gone through a – disputable – arbitration process not even looked at? This is certainly appalling discrimination by the LNP government. And our past and current government bureaucrats have the audacity to downplay what Julian Assange tried to do for the COT cases, i.e, his fellow Australian citizens.
Senator Len Harris, who won his senate seat on 2 July 1999 for the One Nation party, then lived in Queensland, 2,977 kilometres from Melbourne. On 25 July 2002, Senator Len Harris travelled from Cairns in Queensland (a trip that took more than seven hours) to meet four other COTs and me, in Melbourne, in an attempt to ensure our claims of discrimination against the Commonwealth were fully investigated. He was appalled that 16 Australian citizens were so badly discriminated against in such a deplorable fashion by the then-Coalition government, despite a Senate estimates committee working party being established to investigate all 21 COT-type claims against Telstra.
He was stunned at how I had collated this evidence into a bound submission. When Senator Harris read the 9 August 2001 letter from Senator Alan Eggleston Liberal Party warning me that if I disclosed the in-camera Hansard records (which supported my claims that sixteen Australian citizens had been discriminated against in the most deplorable manner) I would be held in contempt of the Senate and risk jail, he Senator Harris, was very upset, to say the least.
At a press conference the next day, Senator Harris aimed questions at the chief of staff to the Hon Senator Richard Alston, Minister for Communications. He asked:
“Through the following questions, the media event will address serious issues related to Telstra’s unlawful withholding of documents from claimants, during litigation.
- Why didn’t the present government correctly address Telstra’s serious and unlawful conduct of withholding discovery and/or Freedom of Information (FOI) documents before the T2 float?
- Why has the Federal government allowed five Australians (from a list of twenty-one) to be granted access to some of the Telstra discovery documents they needed to support their claims against Telstra, but denied the same rights to the other sixteen?
- Why has the Federal Government ignored clear evidence that Telstra withheld many documents from a claimant during litigation?
- Why has the Federal Government ignored evidence that, among those documents Telstra did supply, many were altered or delivered with sections illegally blanked out? (See Senate Evidence File No 56 ).
Senator Len Harris is possibly one of the finest men I have ever had the pleasure of meeting, a true man that believes in justice for all, not just those with political clout. The senator could not understand how, despite various senators from both houses of parliament openly condemning Telstra’s unethical conduct towards those five litmus test COT claimants during their arbitrations and the Senate investigation itself, the other 16 were left to their own devices. The in-camera Senate Hansard records indicate that no one seemed to grasp the importance of Senator Schacht’s advice to the committee that, if Telstra only provided compensation to the five litmus COT cases it would be an injustice to the remaining 16.
A fair resolution of those sixteen COT cases has never been resolved as can be seen by clicking onto An injustice to the remaining 16 Australian citizens. By the time I finish recording all the details of our complex story here, at absentjustice.com, there will be many, many people, from all walks of life, who will then believe that it is absentjustice.com that tells the actual, true story, the only one that should be believed.
The matters discussed on absentjustice.com are said in the public interest and therefore are made in accordance with the Victorian Defamation Act 2005 Defamation-division 1 Defamation and the general law see > www.legislation.vic.gov.au/Domino/Web-Note.
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