Absentjustice Part 1, 2 and 3

As we have already explained on the front page of Absentjustice.com all of the main events as quoted on this website are supported by copies of the original documents (confirmation data) which are linked in the text: for example, CAV Part 1, 2 and 3. and/or Summary of events. Clicking on these links with your cursor will automatically open a PDF of the exhibit. By using this method and following the various file nos discussed in our various pages – see menu bar above, you will be able to verify our story. 

Introduction to Absentjustice Part 1, 2 and 3

In late 1993, the then Shadow Minister for Communications Senator Richard Alston (Liberal Party) and Senator Ron Boswell (National Party Whip in the Senate) used the COT cases’ exposé, concerning Telstra’s deficient telecommunications services, as a collective platform for change in the forthcoming 1996 elections.

Don’t shoot the messenger 

As a payback by the government, the COT four were to be commercially assessed. This was our reward for standing our ground and NOT faltering under the pressure applied by Telstra and their inner circles within the Establishment but instead pursued our claims for a better telecommunications service for all Australians. Representatives from the Australian communications regulator even visited our businesses premises to ensure the government understood what we had uncovered clearly. As a further incentive, the Labor government of 1993 assured us that if we refrained from pushing for a full Senate investigation into the gross misconduct of Telstra then the government would ensure our signed 23 November 1993 commercial assessment process with Telstra would be finalised by April 1994.

It was widely accepted by the Australian government that, because of the complexity of the first four cases, an assessor (not an arbitrator), appointed by AUSTEL, the government communications regulator, would value each case commercially and save the claimants’ time, money and heartache. The following link, Introduction File No/13-A to 13-M, shows, undoubtedly, that our four individual claims were meant to be commercially assessed. One again, we nearly achieved this in 2005, when a rooky (a very naive Senator Barnaby Joyce) met 14 of us COT Cases and heard what Telstra had done to each and all of us in different stages under the watchful eyes of four changing governments between 1994 to 2005. Surely what we COT Cases revealed to him and his adviser that night could never have happened in a democratic country like Australia, but it did happen as my story shows (see An injustice to the remaining 16 Australian citizens) example one. Even Senator Helen Coonan, with all her legal background, was still able to do a back-flip on her commitment given to  Senator Joyce in return for his crucial vote needed in the Senate to pass the final privatization sale legislation (see 12 Alternative remedies pursued/ Chapter Eight).

Yet, as soon as the four COT Cases signatures those of Ann Garms, Maureen Gillan and mine were on the commercial agreement, which Telstra signed on 18 November 1993, those in the Establishment who did not want proof showing our ongoing telephone problems still remained (still ongoing, still destroying our businesses) to come to light in the public arena allowed the administrator of the 23 November 1994 commercial agreement, Warwick Smith (TIO), and assessor (Dr Gordon Hughes) to swap the assessment process for a highly legalistic arbitration process, which the COT four could not possibly win.

Hence, Dr Hughes, originally appointed as the commercial assessor in 17 January 1994 (see Introduction File No/13-F), became the arbitrator of seven separate highly complex arbitration cases and mediator of two others, all at the same time. This was certainly not how Senators Alston Boswell and other senators were assured the first four cases would be conducted. What made the situation even worse was the concealed fact that, on top of all that pressure, Dr Hughes was not even a graded arbitrator when he first undertook those seven arbitrations. It is clear that decision was entirely inappropriate and should never have made, particularly when it has since been acknowledged Dr Hughes failed the exam to be admitted to the Institute of Arbitrators Australia, as a graded arbitrator, while he was still deliberating on my case i.e., the first COT case to go through arbitration. In fact, the Institute of Arbitrators Mediators Australia wrote to me on 10 April 2002 (see Exhibit 713 File CAV Exhibits 701 to 756 confirming Dr Hughes was not a graded arbitrator for the whole period of my arbitration. Even worse is the statement made by the President Institute of Arbitrators Australia in his letter to me dated 10 September 1996 stating:

This Institute is a learned society whose principal function is the training, examination and grading of arbitrators. It will also nominate suitable arbitrators from its lists of graded, practising arbitrators if requested to do by the parties. It selects nominees of
appropriate technical expertise and grading (i.e. ‘experience) from its published lists.

I am advised by our Chief Administrative officer that no reference was made to us in the appointment of the arbitrator in the matter in which you are involved and there is always a risk in these circumstances

As can be seen in the above statements, the four COT cases’ assessment-then-arbitration-process issues are extremely complex and without proof of what took place behind closed doors between those in government who supported a democratic assessment process of the four COT Cases claims and those in the government who were ex-Telstra employees and did not want such a process. Is this why a non-graded arbitrator was chosen to assess our matters? Or did it serve Telstra to have an arbitrator who had a massive conflict of interest as Absentjustice.com – Introduction shows?

I decided to set up absentjustice.com as an exhibit base where the actual documents speak for themselves, i.e., expose the truth that in some case there are some lawyers within the legal fraternity of Australia who has acted outside of the rule of law.

At this early point of our COT story, it would also be helpful to the reader to take a look at the following link > Shocking new details on Lawyer X affect royal commission into … – ABC, because this particular well-kept secret about some Australian lawyers who were acting for Government Departments, such as the police, during various legal cases, breached their legal responsibilities as lawyers because the latest revelations show that these reported breaches are events that actually happened.

It has now been proven by many media releases between 2019 and 2020, that the Victorian Police (which are state government-controlled) were able to infiltrate the legal fraternity within Victoria and corrupt a number of lawyers to break their professional code of conduct and divulge confidential client information to the other side, i.e., the Victorian State Government. This suggests my claims, going back many years, that Telstra and the Australian Establishment was able to not only sway Dr Gordon Hughes not to fully investigate all of the COT cases’ arbitration claims (and in doing so minimised Telstra’s liability, to the detriment of the claimants) did happen, as it has clearly happened in the Victorian police X investigations (see https://www.theage.com.au/national/victoria/the-revelation-that-has-made-certain-melbourne-lawyers-very-nervous-20190206-p50w3u.html the Establishment also allowed Dr Hughes to conduct the arbitrations entirely outside of the ambit of the arbitrations procedures (see below) and on page 99 Senate Hansard – Parliament of Australia.

Renowned Australian author 

Evan Whitton, a renowned Australian author and advocator for the rights of all Australians, no matter what their colour or creed is, has spent more than 30-years investigating crime, corruption and courts. The former journalist of the year maintains our judicial system is irreparably broken and claims criminal lawyers are morally bankrupt and lack integrity and scruples.

In his book, Our Corrupt Legal System: Why Everyone is a Victim (Except Rich Criminals), Mr Whitton argues that we should move from the British adversarial system to the European inquisitorial model, which is less open to corruption. (See https://www.smh.com.au/yes-the-law-can-be-an-ass-20100917l)

Judge sitting at desk in court dress

Former Supreme Court judge calls for investigation

The revelations have prompted Mr Whealy to call for an investigation.

“It looks like a very serious matter that requires investigation,” he says.

“This is damning material to suggest there’s been a breach of the duty of disclosure.”

Even if the recordings do not contain anything incriminating, Mr Whealy says they are still relevant material for the defence.

“The point is an obvious one: if someone is under surveillance to see whether their behaviour indicates some sort of guilty action, it’s equally important from a defence perspective to show they haven’t been doing anything that’s untoward,” he says.

“While the prosecution might want to seize on one incident or one conversation, the defence are entitled to say ‘let’s look at it overall and see what the behaviour of this person is’, and from that, to say ‘there is a lot of innocent behaviour’, so they are entitled to get that material part.

“But it seems the defence has been deprived of the opportunity to do this.”

I have used the wording by Judge Anthony Whealy of the Supreme Court of New South Whales who presided over the Keli Lane trial in 2010, because of the similarities of his statements concerning full disclosure of documents during litigation and what happened during the COT arbitrations. Former United States Supreme Court Justice Felix Frankfurter also is noted as having said:

Justice Felix Frankfurter

“if one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny. Legal process is an essential part of the democratic process”.

Dr Hughes (when he was the arbitrator hearing my claims) did not demand to know why I was threatened, during my arbitration, with the withholding of my requested discovery documents, sought under the FOI Act. What is so disturbing about this, is that when Dr Hughes learned I continued to assist the Australian Federal Police’s investigations into Telstra’s unauthorised interception of my telephone and faxes – and that Telstra did carry out its threat and stopped releasing FOI documents – he also forgot his official promise to COT spokesperson Graham Schorer made during our pre-arbitration hearing. During this meeting, Graham raised Telstra’s previous unethical conduct towards the COT cases and Dr Hughes stated as arbitrator, he would not make a determination on incomplete information” (see Telstra’s minutes from this meeting [page 3 – second line] My Story Evidence File No 14). It is now confirmed, throughout this website, absentjustice.com, that Dr Hughes did, indeed, make a determination on incomplete information.  This is serious enough, but what about the most important document of the whole arbitration process, which was also concealed, i.e, the Portland and Cape Bridgewater telephone exchange logbook which AUSTEL used in order to prepare their own covert adverse findings against Telstra (see AUSTEL’s Adverse Findings). My correspondence to Dr Hughes in November 1994, even advised him that the Commonwealth Ombudsman was unable to force Telstra to release this document even after they had written to Telstra’s CEO Frank Blount, demanding it’s the release. For what reason did Dr Hughes ignore my pleas to access this most relevant logbook?

If you click on Summary of events, you will notice that I have gone to great lengths to NOT name various Telstra employees that knowingly made false witness statements to the arbitrator concerning my telephone problems. However, it has been almost impossible not to name one employee on this Absentjustice.com page (see below), as pages 36 and 38 Senate – Parliament of Australia show, because he was named by Telstra whistleblower Lindsay White as having officially advised him five of the COT cases (and naming me as one of the five) had to be stopped “at all costs” from proving our arbitration claims.

Although the following 24 and 25 June 1997 Senate Hansard discussed immediately below is also discussed elsewhere on this website we ask that you also read this version again because it further confirms we were COT Cases had to be stopped at all cost from receiving out legally requested arbitration FOI documents. As stated in the introduction above, without discovery documents there is no justice for those denied access to them as was in the case during the COT arbitrations.

Australian Senate

On 24 June 1997 see:- pages 36 and 38 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 (Telstra’s Lawyers) 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 Schacht also asked Mr White – Can you tell me who, at the induction briefing, said ‘stopped at all costs”

Mr White“Mr Peter Gamble and a subordinate of his, Peter Riddle. That was the introduction process. (See Front Page Part One File No/6)

It is clear from Mr White’s statement he identified me as one of the five COT claimants that Telstra had singled out to be ‘stopped at all costs’ from proving their my against Telstra’. The named Peter Gamble, in this Senate Hansard, is the same Peter who swore under oath, in his arbitration witness statement to the arbitrator that the testing at my business premises had met all of AUSTEL’s specifications when it is clear from Arbitrator File No/110 that Telstra’s own Customer Call Analysis System (CCAS) data for 29 September 1994 show NONE of the mandatorily required 20-tests calls to each of my service lines 055 267 267055 267230 and 055 267260 were generated into my business and held open for the required period of 120-seconds for each completed call. In simple words, the SVT process at my business was not carried out according to the government communications regulatory mandatory specifications (see Telstra’s Falsified SVT Report).

Telstra is fully aware that this named Peter Gamble (on page 38 of this Hansard) received advice from AUSTEL, on 11 October and 16 November 1994, regarding the Service Verification Tests (SVT) being grossly deficient. AUSTEL demanded Telstra advise what it intended doing about this deficiency see Front Page Part One File/No 24-A to 24-B.

In response to AUSTEL’s 11 October and 16 November 1994 letter, this Peter replied in his own letter dated 28 November 1994 letter stating:

“As agreed at one of our recent meetings and as confirmed in your letter of 16th November 1994, attached please find the detailed Call Delivery Test information for the following customers.

“This information is supplied to Austel on a strict Telecom-in-Confidence basis for use in their Service Verification Test Review only and not for any other purpose. The information is not to be disclosed to any third party without the prior written consent of Telecom. (See Arbitrator File No/98)

By what legal authority could this Peter insist what the government regulator could or could not disclose to a third party, in this case, a claimant whose business was about to be destroyed because this Peter had not conducted the agreed to Service Verification Tests process at this claimants premises using only the Ericsson faulty NEAT testing equipment instead of the agreed-to more updated SVT testing device (see Telstra’s Falsified SVT Report)?

It has become obvious many problems experienced by the COT cases originated from either negligence or deliberate malfeasant on the part of a number of government agencies. Therefore, we have used page 3 of the Australian Herald Sun newspaper dated 22 December 2008, written under the heading Bad bureaucrats as proof that government public servants need to be held accountable for their wrongdoings.

“Hundreds of federal public servants were sacked, demoted or fined in the past year for serious misconduct. Investigations into more than 1000 bureaucrats uncovered bad behaviour such as theft, identity fraud, prying into file, leaking secrets. About 50 were found to have made improper use of inside information or their power and authority for the benefit of themselves, family and friends

It is most important we link the above wrongdoings by various government bureaucrats to the following episode where, on 2 February 1995, AUSTEL (the Government Communications Regulator) public servants decided to withhold their true findings from the then-Minister for Communications, Michael Lee MP, regarding the deficient arbitration Service Verification Tests (SVT) conducted at my Cape Bridgewater business on 29 September 1994 (see Open Letter File No/23 and Absent Justice Part (2)/Chapter Eight. Altering the facts of their findings is appalling enough but, according to the Telecommunications Act 1991, AUSTEL was duty-bound, under Section 342 of the Act, to provide the Communications Minister (the Hon Michael Lee MP) with all of their findings regarding the deficiencies in their Cape Bridgewater Holiday Camp SVT process.  On page 23 of AUSTEL’s 2 February 1995 COT Cases Third Quarterly Report regarding the SVT testing (see Open Letter File No/23) AUSTEL notes:

“Service Verification Tests have been compiled for seven customers. Reports have been completed and forwarded to six of the cusomers, and the seventh report is in prepartion. All six of the telephone services subjected to the Service Verification Tests have met or exceeded the requirements etsablished”.

This statement on page 23 of this AUSTEL COT Cases report does not coincide with the advice AUSTEL gave Telstra on 11 October and 16 November 1994 concerning the deficient SVT testing by this illusive ‘Peter’.  (see Front Page Part One File/No 24-A to 24-B).

We will never know what action the Hon Michael Lee MP might have taken in 1994, had the government bureaucrats advised the Minister that the SVT testing at my Cape Bridgewater business had not occurred according to mandatory government communications regulatory specifications. On 12 December 1994, as part of Telstra’s arbitration defence, it was stated under oath to the arbitrator in my case, that all three of the service lines tested at my holiday camp on 29 September 1994, had exceeded all of AUSTEL’s specifications. However, the person who made this statement (Peter Gamble) could not get the SVT monitoring device to work in conjunction with its sister device installed at the Cape Bridgewater unmanned road-side exchange.

It is clear from the arbitrators’ technical findings in his award that he believed this ‘Peter’s’ version as well as he did AUSTEL’s regarding the SVT events and NOT my arbitration response. Bad Bureaucrats /Chapter One through to Chapter Four clearly show that by Telstra not conducting the government regulatory mandatory SVT process at my business it allowed my ongoing telephone problems to continue for years after the conclusion of my arbitration.

In simple terms, when AUSTEL (the government communications regulator) acted in concert with this ‘Peter’ in order to coverup his deficient SVT arbitration testing they too perverted the course of justice and in doing severely disadvantaged me as a claimant in my arbitration process.

Please note, this is the same Peter Gamble that Absent Justice Part (1)  shows was aware that the Ericsson AXE equipment being used during my arbitration at the Portland telephone exchange and the Cape Bridgewater switching facilitator suffered from line lock-up problems with a (call loss) between 15% and 50% (see Misleading Deceptive Conduct File No 4-D and 4-E) and yet he still lied under oath concerning his SVT testing process conducted at my business (see Telstra’s Falsified SVT Report).

This was the same ‘Peter’ who received an apology from one of Australia’s richest billionaire families and who, back in 2001/02, owned an Australian television station that actually broadcast a documentary about some of the COT case allegations against this same ‘Peter’.

As part of the process of making that documentary, and after spending two days filming at my premises in Cape Bridgewater, the producer of the show commented, in front of a number of witnesses, that he believed that they ‘had the story of the century’ and, also at the end of the shoot, even the cameraman, who had told us that he had spent sixteen years looking down a lens’, explained that he believed that this account of how a falsified report had been deliberately used to change the course of a legal arbitration process, was ‘absolute dynamite’.  And remember, this was an apparently ‘official’ report, that had been produced by the same ‘Peter’.

Eventually, however, the record of my story was replaced by a documentary about another member of COT.  This story, however, did not contain the detailed, documented evidence that my story had provided, and it did not have any of the exhibits that are now freely available on our website, at Telstra’s Falsified SVT Report and Telstra’s Falsified BCI Report, Tampering With Evidence – TF200)/Chapter One.  All of these sections of the website include numerous documents, none of which can be refuted in any way.

This Peter Gamble evidence was then provided to the DCITA assessors as further evidence Telstra and representatives of ACMA had indeed acted unlawfully during my arbitration.

Australian Senate

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

A covert arrangement entered into by Warwick Smith the first administrator of our arbitrations (see TIO Evidence File No 3-A) was with the very corporation that had already set up with their lawyers (see Senate page 5169 SENATE official Hansard) the “COT Case Strategy” which spuriously advised Telstra how to conceal relevant technical documents from the first four COT Cases under Legal Professional Privileged even though the documents were not privileged. My name Alan Smith and my business Cape Bridgewater Holiday Camp was one of the four cases singled out for this special unlawful treatment as TIO Evidence File No 3-A) so clearly shows.

These were the same lawyers who not only drafted the COT Case Strategy (see Prologue Evidence File 1-A to 1-C) but also covertly drafted the arbitration agreement which was used during the first four arbitrations  (see exhibit 48-B in Open Letter File No/48-A to 48-D)

Before this COT Case Strategy came into play Telstra had refused to investigate my ongoing telephone problems 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 them almost, sent me insane. Instead of keeping this evidence, I was providing it to Telstra and copying the same to AUSTEL (the then government communications regulator), 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. This arbitration process meant I had to retrieve back, from Telstra and AUSTEL under Freedom of Information, the very same documentation I had previously provided them. Imagine the frustration of knowing that you had provided the evidence supporting your case but it was now being withheld from you. If this wasn’t soul-destroying enough, imagine learning that lawyer Denise McBurnie, who you were being forced to register your phone complaints with, devised a legal paper titled “COT Case Strategy” (see Prologue Evidence File 1-A to 1-C. instructing their client Telstra on how to conceal this same type of technical information under the guise of Legal Professional Privilege even though the information was not privileged.

On 26 September 1997, after most of the arbitrations were concluded, and three months after the Senate had been told that we COT Cases had to be stopped at all cost’ as well as having been shown evidence that Telstra’s lawyers had devised a spurious legal paper directing their client how to conceal technical data under Legal Professional Privilege even though it was NOT privileged  the second-appointed Telecommunication Industry Ombudsman, John Pinnock (the administrator of the COT arbitrations), advised a senate committee (see page 99 Senate Hansard – Parliament of Australia that:

“In the process leading up to the development of the arbitration procedures—and I was not a party to that, but I know enough about it to be able to say this—the claimants were told clearly that documents were to be made available to them under the FOI Act.”

“Firstly, and perhaps most significantly, the arbitrator had no control over that process, because it was a process conducted entirely outside the ambit of the arbitration procedures.”

There is no amendment attached to any agreement, signed by the above-mentioned COT members, allowing the arbitrator to conduct those particular arbitrations entirely outside the ambit of the arbitration procedure – and neither was it stated that he would have no control over the process once we had signed those individual agreements. How can the arbitrator and TIO continue to hide under a confidentiality clause contained in our arbitration agreement when that agreement did not mention the claimants would be forced to proceed with their arbitrations without the necessary documents needed to support their claims or that the arbitrator would have no control because the arbitration would be conducted entirely outside of the agreed ambit of the procedures?

On page 62 in the same Senate Hansard – Parliament of Australia, Mr Barry O’Sullivan who was the original arbitration claim advisor to COT Case Ann Garms, Graham Schorer and me advised a Senate Committee, under oath, that we three claimants:

“… had expressed identical concerns about accessing their documents. They had all suffered frustration with the FOI process to that point in time. This issue remained as one of the major stumbling blocks in their signing the arbitration document itself. We spent almost two hours with Mr Peter Bartlett [TIO Legal Counsel] in a boardroom at Minter Ellison. The claimants very clearly articulated to him their serious concerns about whether they would be able to access the documents or be given sufficient documents to prepare their claim.

Mr Bartlett actually left the room and returned and reported to us that he had spoken to Dr Hughes [the arbitrator] and that he had been given an assurance by Dr Hughes that all documents requested by the claimants in the process of the preparation of their claims would be provided. All I can tell you from that date forward is that a combination of requests to the arbitrator and under freedom of information have failed in any way to allow the claimants, at least the ones that we have dealt with, to prepare their claim in a conventional manner”

As has been further confirmed above on page 62 in Senate Hansard – Parliament of Australia, before I and the other three COT Cases signed for arbitration, Warwick Smith, Peter Bartlett and Dr Hughes all assured us the documents we required from Telstra would begin to flow through to us once our signatures were on the agreement.  The Arbitration Agreement was secretly altered just 36 hours before we were told if we did not sign this altered agreement, Telstra would walk away. The inference was we could not afford to take Telstra to court so we had better sign it, or suffer the consequences of a long court and expensive legal battle. We signed it under duress, after being told if we did not sign the attached media release that stated we were happy little chappies then the same scenario applied. Almost crying with frustration and anger at having reached this gate which was half-open we did what we were told.

In my case, Barry O’Sullivan and his partner, Garry Ellicott (ex-Queensland Police Detective Sergeant and ex-National Crime Investigator) met with me in Maroochydore (Queensland), during my arbitration, to discuss the threats that Telstra had made to me concerning the assistance I was providing to the Australian Federal Police (AFP) with their investigations into Telstra’s unauthorized interception of my telephone and fax transmission (see Australian Federal Police Investigations).

After visiting my business in May 1994, Garry Ellicott had made it clear that he could see that my business was under constant surveillance.  He also noted that this was alarming, particularly since these threats were now causing me so much stress.

Telstra’s threats continued to impact on my ability to submit a full and concise arbitration claim. This was clearly intimidation by Telstra (the defendant), but still, the arbitrator Dr Gordon Hughes and administrator of the process Warwick Smith refused to convene a hearing to discuss these threats even though exhibit GS-CAV 205 shows I tried to have these document issues investigated.

Senator Ron Boswell

A concerned Senator Ron Boswell discussed in the Senate, the type of threats that had been made against me by Telstra senior executives while the Australian Federal Police investigated Telstra’s unauthorised interception of my telecommunication services. Page 180 (see  Senate Evidence File No 31), shows that, during a Senate committee debate on 29 November 1994, the senator challenged Telstra’s legal directorate concerning these threats:

“Why did Telecom advise the Commonwealth Ombudsman that Telecom withheld FOI documents from Alan Smith because Alan Smith provided Telecom FOI documents to the Australian Federal Police during their investigation?”

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

“…Why would Telecom withhold vital documents from the AFP? Also, why would Telecom penalise COT members for providing documents to the AFP which substantiate that Telecom had conducted unauthorised interceptions of COT members’ communications and subsequently dealt in the intercepted information by providing that information to Telecom’s external legal advisers and others?” (See Senate Evidence File No 31)

Thus, the threats became a reality. What is so appalling about the withholding of relevant documents is that no one in the TIO office or government has ever investigated the disastrous impact this had on my overall submission to the arbitrator. The arbitrator and the government (who at the time fully owned Telstra) should have initiated an investigation into why an Australian citizen, who assisted the AFP in their investigations into unlawful interception of telephone conversations, was so severely disadvantaged during a civil arbitration Page Part One File No/14)

NONE of the COT Cases was ever on a terrorist list in 1994 (or since, for that matter) and nor was any of us ever listed as suspects in relation to any crimes committed against any Australian citizens. This means that we must, therefore, ask: why were these innocent claimants’ in-confidence arbitration and Telstra-related documents hacked by Telstra while Telstra was defending the various COT cases arbitrations?

Why didn’t the arbitrator and administrator investigate why so many arbitration documents were just not reaching their intended destination? Most, if not all of those lost and unaddressed arbitration documents were related to the complaints raised by the claimants that their phone problems were still ongoing.

What the government and their bureaucratic minders do not want to acknowledge, is the everlasting effect these crimes committed against the COT cases have had on our psychological wellbeing.

Major Fraud Group – Victoria police

Three of the five COT Cases mentioned by Telstra ‘whistleblower’ Lindsey White, who had to be stopped at all cost” from proving her arbitration claims took their matters to the Major fraud Group Victoria police in 1999. The following two links Major Fraud Group Transcript (1) and Major Fraud Group Transcript (2), because Fraud Group Transcript (1) shows Senator Ron Boswell, Graham Schorer (COT spokesperson), Bruce Akehurst (Telstra), Mr Anthony Honner (another COT case) and Barry O’Sullivan (negotiator) discussing why the government did not allow my arbitration matters to be viewed by the Senate investigation into the five litmus COT test cases. To have investigated my matters would have impeded the privatisation of Telstra.

What these transcripts do not reveal is that two Telstra senior technician’s investigating my complaints on 3 June 1993, inadvertently left their briefcase at my Cape Bridgewater holiday camp, see Chapter Two below.

The important documents left in that briefcase provided evidence that discussed the manner in which they settled with me in December 1992. Telstra had known that major faults still existed in their network at the time of the settlement (see Main Evidence File No 26  for example) but they did not disclose this to me during the settlement process. The documents quickly exposed that Telstra was fully aware of their inadequate service and the major communication problems that were affecting the viability of my business endeavours.

Telstra’s FOI document dated 23 August 1993 and labelled as ‘folio R09830’ with the subject listed as ‘The Briefcase’ is alarming, to say the least. This document, which had been copied to Telstra’s Corporate Secretary, notes:

“Subsequently it was realised that the other papers could be significant and these were faxed to (name deleted) 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.”(See Arbitrator File No 62)

These same papers on retrofit in 1994 and 1995, were also concealed from the arbitrator hearing mt case. To have investigated my arbitration claims would have uncovered at least one major crime was committed against me and other Telstra subscribers going back before 1993. An investigation into this terrible crime committed against so many Australian small business operators would have clearly impeded the privatisation of Telstra.

This matter was again raised with Senator Barnaby Joyce during a COT meeting in July 2005, one of the main reason’s Senator Joyce brokered a deal with The Hon Senator Helen Coonan (see A broken promise).

The Major Fraud Group Transcript (2) shows Barrister Sue Owens explaining why the Major Fraud Group Barrister Neil Jepson seconded me into assisting the fraud group’s own investigations into claims the five litmus test cases registered concerning Telstra committing fraud. Page 11 of transcript (2) shows Sue Owens stating I am “extremely intelligent” and that police also thought the same concerning my ability to detect wrongdoing. I raised the 1993 briefcase affair with the Major Fraud Group because the information in that briefcase was also relevant to their now 1999 investigation.

At the request of Ann Garms and her lawyer Sue Owens and in the presence of Neil Jepson, barrister for the Major Fraud Group Victoria Police, I submitted the draft of the three reports (see Telstra’s Falsified SVT Report, Telstra’s Falsified BCI Report and Tampering With Evidence – TF200) to assist the fraud group in their investigation of Ann’s claims of fraud against Telstra. Ms Owens attested that Mr Jepson considered my reporting in these reports were authentic.

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

The Telstra ex-senior protective service officer’s witness statement discusses a then still senior detective sergeant of the then Major Fraud Group, Victoria Police. The ex-police officer’s witness statement also describes the anguish experienced by the senior detective sergeant while he was investigating alleged fraud within Telstra during the COT arbitrations and the fears he had after being subjected to intimidation. Consider this: if this feeling of being got at by the Telstra Corporation can reduce a fully trained senior police officer to the condition Telstra’s ex-senior protective service officer alleged, just think how this continued and unaddressed harassment, by Telstra officials, left the COT cases during and after their government-endorsed arbitrations.

I again raise this witness statement by this Telstra’s ex-senior protective service officer because points 20, 21 and 22 in his statement support how important the withheld Portland/Cape Bridgewater Log Book during my arbitration was:

(20)”…I had cause to travel to Portland in western Victoria in relation to a complaint involving suspected illegal interference to telephone lines at the Portland telephone exchange.

(21) As part of my investigation, I first attended at the exchange to speak to staff and check the exchange log book which was a record of all visitors to the exchange and a record of work conducted by the technical officers.

(22) When I attended at the exchange, I found that the log book was missing and could not be located. I was informed at the time by the local staff that a customer from the Cape Bridgewater area south of Portland was also complaining about his phone service and that the log book could have been removed as part of that investigation”.

What was in the logbook that a government regulator, Telstra’s own protective service officer and the commonwealth ombudsman’s office have been unable to gain access to it? Like much of the Cape Bridgewater fault data that AUSTEL failed to obtain from Telstra during their investigations into my complaints (see Main Evidence File No 15), I was also unable to get my hands on the Cape Bridgewater/Portland exchange logbook – not even with the help of John Wynack, Director of Investigation from the Commonwealth Ombudsman Office.

On 11 November 1994, John Wynack, Commonwealth Ombudsman Office wrote to Telstra’s CEO noting:

“At the request of (name deleted), I am notifying you of the details of the complaints made to the Ombudsman by Alan Smith;

  • Telecom claimed that documents given to Telecom by Mr Smith in 1992 had been destroyed or lost.
  • Telecom has lost or destroyed a number of files relating to his contacts with Telecom prior to 1991.
  • Telecom unreasonably delaying providing access to many documents.
  • Telecom unreasonably refused to provide the Portland/Cape Bridgewater Log Book associated with the RCM at Cape Bridgewater’ for the period 2 June 1993 to 6 March 1994″

Could this be the reason why the logbook vanished? Perhaps Telstra feared a class-action lawsuit in the future. All I wanted was to prove my case and get on with running my business.

This one ‘logbook’ document on its own, from amongst thousands of other, related documents, would have completely proved my case because it showed that my complaints about ongoing telephone problems, and the complaints of other Cape Bridgewater and Portland residents also, were all based on fact, as the daily recording of those faults, penned into the logbook each day by the various technicians, would have shown.

Surely it has always been the government’s responsibility to have ensured the COT arbitrations were conducted according to the law, as well as the promises were given to to the COT cases before they signed their individual arbitration and mediation agreements that: “In the process leading up to the development of the arbitration procedures—the claimants were told clearly that documents were to be made available to them under the FOI Act.” (See page 99 Senate Hansard – Parliament of Australia) 

Absent justice Part (1)

Why were the FOI documents not provided to the claiamnts under the agreed to process?  Why were the arbitrations not conducted under the agreed ambit of the arbitration procedures? How can arbitration be a just process when the arbitrator has no control over how it is conducted? When did Dr Hughes lose control over the arbitrations? Was it the first week, or two months or even nine months into the process? And, just as importantly, who authorised him to conduct the process entirely outside of the ambit of the arbitration procedures?

The confidentiality clauses in the first COT four arbitration agreement has been used since the conclusion of my own arbitration on 11 May 1995,  to stop a transparent investigation into the conduct of my arbitration. That confidentiality agreement became null and void as soon as the arbitrator conducted my arbitration entirely outside the agreed ambit of the Victorian Commercial Arbitration Act 1984.

Copies of Mr Shelton’s 24 January 1994 letter to Dr Hughes were provided to all four COT Cases and the government communications regulator AUSTEL as confirmation as to how the arbitrations would be conducted.

At an official arbitration meeting on 17 February 1994, Graham Schorer (COT spokesperson) asked the TIO and the arbitrator to assure us that the agreement the COT claimants were being pressured to sign was not Telstra’s proposed rules of arbitration. Telstra’s own transcripts of this meeting (see Arbitrator File No/103) confirm that both the arbitrator and the TIO’s Special Counsel replied: “… they had not received this document and had not read it and that it was irrelevant”. However, Arbitrator File No/104 confirms that the Arbitrator was provided with a document called Telstra Corporation Limited – ‘Fast Track’ Proposed Rules of Arbitration before 18 January 1994, one month before this meeting.

In fact, Arbitrator File No/105  dated 24 January 1994 (see also above), confirms that both the arbitrator and a representative of the TIO’s Special Counsel had read Telstra’s proposed rules. And they actually used that document as the basis for the final arbitration agreement; the version presented to the first four COTs for signing the very next month. This was the version that we were assured had been drafted totally independently. This is clear evidence that during the first official arbitration meeting before the COTs had signed their arbitration agreements and even before he had been officially appointed, the arbitrator was already misleading and deceiving the claimants and all other interested parties.

This deception, in relation to which version of the agreement we had signed, was maintained throughout the various COT arbitrations. This agreement was NOT independently drafted by the Special Counsel, but by Telstra – the defendants.

One thing we did not know when we accepted the COT arbitrator, who was proposed to us by the Government and described as a senior partner in a very large Australian legal firm, is that the Sydney office of that firm was already legally representing a number of Telstra union members at the very same time that this so-called ‘independent’ arbitrator agreed to his appointment as the COT arbitrator, i.e. a series of arbitrations against Telstra. If we had been told about this back then, then we would certainly not have accepted him as our arbitrator.

Another fact that we also did not know back then is that, just three years before this ‘independent’ arbitrator accepted this position in the COT battle against Telstra he had already represented one of the first four COT claimants back when that claimant fought against Telstra on his own, but in relation to the very same issues that the arbitrator was now supposed to be arbitrating on – independently.

As the Conflict of Interest page explains, the legal firm, where this allegedly ‘independent’ COT arbitrator was a senior partner, had been aware that Telstra had concealed vital Federal Court discovery documents from that client during his claims against Telstra, three years earlier, and also knew that this fact had been deliberately concealed from this client.  Furthermore, they had all this information while the same ‘independent’ arbitrator represented this same claimant (who then became one of the first COT Case claimants).

Our Conflict of Interest page also explains that, since that court case three years before the COT Case group was formed, this particular member of the group swore, in a formal statutory declaration, attesting to the fact that he had no knowledge about these concealed Federal Court documents at the time of his previous claim against Telstra and that, if he had known this when this COT arbitrator was being sworn in, he would never have agreed to this new appointment.

The deception that invaded the COT arbitration process three years after this terrible earlier deception, was conceived on the 17 February 1994, just two months before the first four COT Cases signed our individual arbitration agreements and, very quickly, we all began to suspect that something about the arbitration process was not quite right, months before AUSTEL (then the Government communications regulator), on behalf of the Government, promised us four COT cases that all the Telecom documents we needed to support our claims would definitely be made available to us if we entered into the AUSTEL-facilitated arbitration process. We then discovered however that these promises – made by the Government and tabled in Federal Parliament –were promptly broken and we were forced into an arbitration process that, as we continually argued, did not follow any of the promises that had been made to us to encourage us to sign our agreements in the first place. It very quickly became a situation in which we just had no trust in those who were going to administer the process, and our concerns are well documented in Government records. This pending arbitration stank of Telstra’s influence, despite the new ‘independent’ arbitrator’s official assurance at this 17 February 1994 official meeting that, if we did not get the documents we needed to fully support our claims then, as “the Arbitrator, he would not hand down a determination on incomplete information: (see Arbitrator File No/103) i. e. because that would mean that he had incomplete information on which to base that determination.

What all this indicates is that, in every corner of the COT arbitration process that this allegedly ‘independent’ arbitrator was involved in, he failed the claimants completely because he DID hand down his findings, even while he was fully aware that Telstra had concealed many, many relevant documents, not only from me but also from other members of COT as well.

A letter dated 23 February 1994, from Telstra’s arbitration liaison officer to the pending arbitrator notes:

“Telecom is of the view that Special Counsel and the Resource Unit should be accountable for any negligence on their part in relation to the arbitration process, given that these parties are acting in their capacity as experts. Therefore, this clause should not be amended so as to include an exclusion from liability for Special Counsel and the Resource Unit”. (See Arbitrator File No/3)

So why did the parties discuss at the bellow clandestine meeting of 22 March 1994, that the Special Counsel and Arbitration Resource Unit wanted to be exonerated from all liability in regards to any negligence when it had already been agreed by the defendants in their 23 February 1994 they should be liable?  

Chapter Six

Clandestine meeting

Ex parte is a Latin phrase meaning on one side only or by or for one party. An ex parte communication occurs when a party to a case, or involved with a party, talks, writes or otherwise communicates directly with the judge about issues in the case without the other parties’ knowledge. Under the Judicial Code of Conduct, judges may not permit or consider ex-parte communications in deciding a case unless expressly allowed by law. This helps judges decide cases fairly since their decisions are based only on the evidence and arguments presented to the court, and the applicable law. It also preserves trust in the legal and court system.

Points 4 and 5

The 22 March 1994 transcripts of a clandestine gathering, where the COT cases were not represented (see Open letter File No 54-A), shows Telstra’s Mr Chalmers, the author of the minutes, has left out points 4 and 5. Point 6 follows point 3. Where are points 4 and 5?

In attendance at this clandestine meeting were Telstra’s arbitration liaison officer, Steve Black; Telstra’s general counsel, David Krasnostein; Telstra’s lawyer from Freehill Hollingdale & Page, Simon Chalmers; TIO special counsel, Peter Bartlett; arbitrator, Gordon Hughes; and TIO Warwick Smith with his secretary Jenny Henright. Except Jenny Henright, all were lawyers and therefore all knew this was an illegal gathering. What was so important about this meeting that only the arbitrator and defence attended it?

The missing discussion material or questions raised at points 4 and 5 may well be why the parties present agreed to Telstra lawyers drafting the agreement, instead of the independent arbitration agreement the government and claimants were assured would be used. It could also be where Telstra and arbitrator Dr Hughes agreed Telstra would allow the arbitration resource unit first access to all arbitration procedural material (see Arbitrator Part Two Chapter Seven). This allowed the arbitration resource unit to decide which documents Dr Hughes and the claimants would be allowed to see, and which would be discarded. Telstra’s Steve Black wrote to Warwick Smith on 11 July 1994 acknowledging the resource unit would be allowed to vet which documents Dr Hughes would see and which he would not (see Prologue Evidence File No 7). The arbitration resource unit, Ferrier Hodgson Corporate Advisory, admitted, in writing, to Dr Hughes that they concealed at least four relevant billing claim documents from the arbitration process (see Open letter File No/45-H). This is discussed more fully below.

Points 4 and 5 in the minutes of this clandestine meeting could be linked to the arbitrator and his arbitration resource unit allowing for the more adverse findings against Telstra to be covertly addressed outside the legal arena of the COT arbitration process. If the addressing of non-addressed arbitration issues had nothing to do with points 4 and 5, then what was so detrimental to the arbitration process that these points were excluded from these minutes? What information was exposed in those two points that Telstra’s lawyers thought it necessary to hide, in case this document, Open letter File No 54-A, ever surfaced, as it has?

Why weren’t the COT cases or their lawyers advised of this meeting? We will never know what was concealed from the COT cases during this clandestine gathering. Dr Gordon Hughes should have never allowed this secret meeting to take place without the COT cases being represented. Most, if not all, Western democracies would expect both the defendants and claimants – and their lawyers – to be present in the judge’s chambers or arbitrator’s office.

This clandestine meeting also covered how to protect – to exonerate – the arbitrator’s consultants from incurring any liability for negligence or being sued. Of course, this was to the detriment to the COTs and our legal right to a have recourse over the arbitration consultants if the resource unit was negligent in their duties. The arbitration resource unit was negligent during my own arbitration process and I was unable to hold them to account for those actions, due to those clauses being removed from my arbitration agreement.

This very important exhibit Open letter File No 54-A details a meeting attended by Telstra’s general counsel, the TIO Special Counsel, the arbitrator, the TIO and the TIO secretary. The meeting discussed various changes to the arbitration agreement although no COT claimants or their representatives were advised of this important meeting and/or proposed changes to the agreement. Telstra’s transcript of this meeting (see File No 54-A notes at point six that:

“Peter Bartlet [TIO Special Counsel], stated that he was unhappy that Telecom did not appear prepared to allow his firm an exclusion from liability.”

“Warwick Smith [TIO], stated that he thought it was reasonable for the advisers to incur some liability, and that the only matter left to be negotiated on this issue was the quantum of the liability caps.

“Steve Black [Telstra] said that he thought the liability caps proposed by Telecom in the amended rules were already reasonable.”

The TIO has, to date, declined to explain what circumstances occurred to change this. Who pressured the TIO to allow the advisors (see below) to be exonerated from all liability in relation to my arbitration? Why would the TIO Special Counsel be so unhappy that Telecom did not appear prepared to allow his firm and exclusion from liability”.

It is therefore quite clear that the arbitrator’s main concern was always with the welfare of Ferrier Hodgson and DMR (the arbitration resource unit) rather than with the claimants, who had, by then, been battling Telstra for years. I did not see this letter until 2002, which was well outside the Statute of Limitations, when it was finally sent to me, along with other arbitration material I had continued to ask the TIO and Telstra to send to me so I could properly appeal Dr Hughes’ award.

Telstra’s FOI folio number A59256/7 (see Open letter File No 54-B) which is recorded on this letter dated 12 April 1994, from Dr Hughes to the TIO’s special counsel, indicates that Telstra received their copy of that letter either before or during the arbitration process and that simply shows, once again, that even before we signed the agreement the arbitrator and Telstra (the defence) had already set up a system that would allow them to work together to achieve their aims, right throughout the arbitration process, regardless of how that would affect the claimants’ cases.  This letter clearly discusses the same exoneration issues that Dr Hughes and the TIO’s Special Counsel tried to have included in the arbitration agreement during the 22 March 1994 clandestine arbitration meeting that is discussed above (see Open letter File No 54)

Open letter File No 54-A to 54-B, which is further discussed below, also shows that, even before Dr Hughes’ involvement in the deliberate deception that is discussed in his 12 April 1994 letter, he was already colluding with the defendants (Telstra) and the TIO so that he could use Telstra’s version of the arbitration agreement instead of an independently drafted version. This is further proof of the ongoing, deceitful collusion that existed between Telstra, the TIO, and the Arbitrator, and a clear indication that this collusion began well before the arbitration agreement was executed. So why are Dr Hughes, Telstra. and the TIO continuing to tell the current government that the confidentiality clause in the agreement forbids discussion about our arbitrations when all this deceit and collusion clearly began well before we signed the agreement and therefore well before the confidentiality clause came into play at all?

It is clear from the first two lines of Dr Hughes’ last statement on page-two in this that he knew the arbitration agreement as it stood was the agreement that had been finally agreed to as his statement shows  (see Open letter File No 54-B) which notes: “…I appreciate that one claimant has already executed the agreement in its current form. The others will no doubt be pressed to do likewise over the next few days”.  Maureen Gillan was the claimant referred to as having already ‘executed the agreement in its current form’Maureen had signed the agreement four days previous, on 8 April 1994. Why was it so important to remove the $250,000.00 liability caps from the Arbitration Agreement in my case, and those of Ann Garms and Graham Schorer? Why was this such a big deal when the $250,000.00 liability caps were going to be replaced on the new Arbitration Agreement for the other twelve COT Cases as Chapter Seven below shows?

Why did it not occur to either the TIO or the Arbitrator that, once the directions regarding liability were removed; this would allow complacency to creep into the arbitration process? This is exactly what our absentjustice.com pages show did happen.

Removal of Liability Clauses

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Part of the story begins with the first (unaltered) version of the agreement, which had already been signed by one COT member, Maureen Gillan, a couple of weeks earlier, on 8 April 1994.

On 19 April 1994, a date confirmed by the fax footprint, two copies of the original version were faxed from the arbitrator’s office to two separate lawyers. In the agreement presented for the COT claimants to sign two days later, on 21 April 1994, clauses 25 and 26 had been removed and clause 24 had been amended with the $250,000 liability caps removed. This exempted the two resource units from all liability. There are some interesting details related to what happened the day that the three remaining claimants signed what we later learned was a secretly altered agreement.

This is a three-page brief to Mr A H Goldberg, Q.C., from William Hunt, on behalf of Graham Schorer. According to a hand-written note in the top right-hand corner, Mr Goldberg’s office was contacted by Hunt Solicitors at 2.43 pm

It is clear from the fax imprint on these two documents from Dr Hughes’ secretary, Caroline Friend, to Mr Goldberg and William Hunt, that they were faxed between 1:20 and 2:00 pm on 19th April 1994.  Each fax included an unsigned copy of the Arbitration Agreement (Graham Schorer).  Ms Friend sent the faxes from her office after Graham Schorer asked his solicitor, William Hunt, for advice in relation to signing the Arbitration Agreement that was drawn up by Frank Shelton of Minter Ellison  (see  Open letter File No 54-C) Mr Hunt contacted Dr Hughes’ office and asked Ms Friend to send one copy to Mr Goldberg and one to Mr Hunt, for assessment.  On 21st April, however, before Graham received any information from Mr Goldberg or Mr Hunt, Graham and Alan met Peter Bartlett (the TIO’s Legal Counsel) in the Minter Ellison offices.  Mr Bartlett informed them the TIO would withdraw from administering the already-signed Fast Track Settlement Proposal if Graham and Alan did not sign the Arbitration Agreement by close of business that day.  Had Peter Bartlett provided Graham and Alan with a copy of the altered agreement earlier in the day, and allowed them to take it away for discussion, a comparison between the altered version and the version faxed to Mr Goldberg and Mr Hunt would have uncovered the secret alterations to the agreement Graham and Alan were being pressured to sign.  This was not the agreement that Caroline Friend faxed to Mr Goldberg and Mr Hunt 36 hours earlier.

We now understand our signatures on this agreement almost sealed our fate, mainly because the clauses had been altered, effectively exonerating both the resource unit and the TIO-appointed Special Counsel from any liability or omission associated with their involvement in the arbitration process. This was to prevent us suing them, if things went badly wrong.

I had been medically diagnosed with severe anxiety and was seeing a local psychologist. Everyone at that meeting, including my claim advisor Barry O’Sullivan, was aware of my diagnosis. I wasn’t the only one who was worried about signing that day; although Ann Garms and Graham Schorer, the other two claimants, agreed that we should sign the agreement, they also expressed reluctance because of the lack of time we had been given to review the document before signing it.

As a point of interest, in May 1994, when Senator O’Sullivan’s partner was helping me with my claim, he warned me that he believed I was under some sort of surveillance, which is something I already suspected. My psychologist had told me she was visited by someone who claimed to know to me and began asking questions about my mental state. I am most grateful to that psychologist, Kaye —– because she made it perfectly clear that the only way anyone could obtain that information was in my presence. Senators Richard Alston and Jocelyn Newman, and a number of other senators, are aware I was not the only COT member suffering from anxiety as a direct result of what we were being put through.

What is perhaps the most disturbing point about the alterations to the agreement (aside from the fact that they appear to have been made without the TIO’s authorisation) is the liability caps that were removed from the 21 April 1994 version, were replaced two months later, on 22 June 1994, for the next version of the agreement. This agreement would also be administered by the TIO, for all remaining 12 COT claimants, and for other similar agreements in future TIO-administered arbitrations. This confirms one very important matter: the TIO’s office was fully aware that it was undemocratic to have allowed the three COT arbitrations to be conducted without a proper safeguard for the claimants.

The Removal of the liability clauses  

The three clauses on page 12 of the version of the agreement that was received from Dr Hughes’ secretary on 19 April 1994, which is also the version of the agreement that the first of the four claimants, Maureen Gillan signed on 8 April 1994. It is clear the clauses in this agreement did NOT exonerate either the TIO Special Counsel or the two Resource Units Ferrier Hodgson and DMR Group Australia Pty Ltd which Warwick Smith clearly stated on 22 March 1994: (see Open letter File No 54-A)

 “…he thought it was reasonable for the advisors to incur some liability, and that the only matter left to be negotiated on this issue was the quantum of the liability caps”.

[Clause 24]  ...Neither the Administrator nor the Arbitrator shall be liable to any party for any act or omission in connection with any arbitration conducted under these Rules save that the Arbitrator (but not the Administrator) shall be liable for any conscious or deliberate wrongdoing on the Arbitrator’s own part”.

[Clause 25]  …The liability of Ferrier Hodgson and the partners and employees of Ferrier Hodgson for any act or omission in connection with any arbitration conducted under these rules (other than in relation to a breach of their confidentiality obligations) shall be limited to $250,000 jointly.

[Clause 26] …The liability of DMR Group Australia Pty Ltd and the directors and employees of DMR Group Australia Pty Ltd for any act or omission in connection with any arbitration conducted under these rules, other than in relation to a breach of their confidentiality obligations) shall be limited to $250,000 jointly (see Open letter File No 54-C)

In the agreement that was presented to the COT claimants to sign, clauses 25 and 26 had been removed and Clause 24 had been amended (see Open letter File No 54-D) The final version of Clause 24 reads (in part):

“Neither the Administrator, the Arbitrator, the Special Counsel, a partner or employee of the legal firm of which the Special Counsel is a partner, a member of the Resources Unit, Ferrier Hodgson or a partner or employee of Ferrier Hodgson, DMR Group Australia Pty. Ltd. shall be liable to any party”.

This resulted in Clause 24 having quite a different meaning to that presented by the original three separate clauses (24, 25 and 26). It protected Peter Bartlett, Minter Ellison and the two Resource Units from any risk of being sued for misconduct associated with their role as advisors to the process, thereby providing no incentive for them to ensure that the COT claimants were involved in a fair and just process.

According to numerous records  now displayed on this website absentjustice.com, I and the other two claimants present that day, i.e. Ann Garms and Graham Schorer, although apparently reluctant to sign the altered agreement, we did, and in doing so, those altered clauses effectively exonerated both Resource Unit’s and the TIO-appointed Special Counsel from any liability or omission associated with their involvement in the arbitration process.

A strange but welcome phone call

Towards the end of March 1994, I got an extraordinary phone call. Frank Blount, Telstra’s CEO, their top man, rang me. He wanted to know what I thought was the underlying cause of my telephone problems. Presumably, he had taken it upon himself to find the cause of my complaints. He showed understanding, respect and courtesy. I told him I believed that both Portland and Cape Bridgewater exchanges had been suffering from congestion for years. He gave me his word that he would investigate my theory, and it turned out he was a man of his word. An internal Telstra email dated 6 April 1994 shows the result of his influence:

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“Following previous lost call analysis of the Z route between Warrnambool node and Portland AXE–R (PORX) it was decided to increment this route from 30 to 60 CCTS … Could you please ‘fast track’ this project due to the sensitivity of the current COT case at Cape Bridgewater (off PORX)”. Arbitrator File No/83

Another, dated 7 April 1994, followed with:

“At 4.55 pm on 6/4/94 I was informed by Network Ops that the route into the Portland exchange would be increased by 30%. The work was to be completed prior to midnight that day. This should alleviate any problems Mr Smith or anyone else in the area has been experiencing with congestion into the area for some time”. (See Arbitrator File No/83)

In fact, an extra 30 circuits (from 30 to 60 CCTS) represented a 100% increase in the phone route into Portland exchange, not 30%. Regardless, the increase in lines was appreciated. I also remember discussing with Telstra’s CEO an internal Telstra document dated 17 June 1993 from the general manager of the commercial division to one of her staff noting:

“I refer to our telephone conversations regarding the material contained in [Telstra employee, name withheld]’ brief case.

“Please find attached a letter from Austel requesting information regarding that incident. Whilst I can respond to the details regarding the information provided to him at the time of settlement I cannot comment on the variation between what Mr Smith was told and the contents of the Network investigation files.” (See Arbitrator File No/111)

This document suggests the author was not sure whether she had provided me with the truth or not when she had conducted my earlier 11 December 1992 settlement. We know that when AUSTEL asked Telstra to supply a copy of ALL of the briefcase material left at my premises, it appears as though Telstra concealed sensitive material from the government regulator.(See Arbitrator File No 61 and Arbitrator File No 62)

In March 1994, Graham Schorer (COT spokesperson) and another COT member suffered break-ins and lost business-related documents. That made us all much more vigilant. I found no evidence of a break-in, but I did notice two diaries covering the period 1987 to 1989 were missing. I decided to remove my official business diaries from my office, and from that time on, I transferred information to them on a weekly basis from my wall calendar and unofficial notebooks. (See also Hacking – Julian Assange File No/3. The following statements are taken from Graham Schorer’s Statutory Declaration re his break-in.

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“In early February 1994, our premises were broken into and all computer cables including the power cables were severed, as well as all power connections to the main server which was in a specially constructed room. The perpetrators forced entry into the building in what the police described as a “ram raid”, where something similar to pneumatic tyre attached to the front of a vehicle was used to hit the front door with enough force to dislodge the steel frame attached to the brick work.

Part of the microfiche copier and viewer was stolen, as well as the PC on my desk which contained all of my COT information and correspondence between regulators, politicians, etc. Also stolen was a book that contained a catalogue of computer file numbers against their description.

The same day I spoke to Garry Dawson from Dawson Weed and Pest Control (another COT Case) on the phone, who told me that his business premises in Sunshine had been broken into just after midnight and burgled. The only thing stolen was the Dictaphone tape which held a recording he had made of a meeting between him and two Telstra executives on the previous day”. (Arbitrator File No/84)

Two months after the above break-in, my arbitration claim advisor Garry Ellicott (ex-national crime investigator and ex-detective sergeant of the Queensland police) visited and we spent five nights trying to decipher the pile of Telstra discovery documents. It was then that I discovered further losses: exercise books in which I kept official booking records and a number of bank statements and my bank pay-in books for 1992/93. I cannot account for these losses. It is possible they were also missing in March, and I simply didn’t notice their absence. Without these records, I was hard-pressed to produce full and correct financial statements for my forensic accountant, Derek Ryan, and was reduced to scavenging information from wall calendars and other unofficial sources. When Garry returned to Queensland, I got him to take my remaining work diaries with him for safe-keeping.

Hacking – Julian Assange

Chapters Two to Seven and Chapter Nine in our Hacking Julian Assange page give sound reasons as to why I had doubts surrounding the security of my business premises.

I had good reason to be nervous and on edge after having lost important documents from my business. This period of doubt came after Telstra threatened me and the Australian Federal Police confirmed Telstra had, indeed, been listening into my telephone conversations without my knowledge or consent. It was also during this time that hackers (who I now believe included Julian Assange) contacted Graham Schorer, after we had signed our arbitration agreements on 21 April 1994.

Graham stated that the hackers had advised him that the Government had been working, together with Telstra, to cover up the systemic network faults associated with our businesses and that it was important that we have this information.  I remember this statement particularly clearly because it got me wondering: was it possible that the Australian Government could really be involved in protecting Telstra, while Telstra was actually the defendant in an arbitration with Australian citizens – a legal process that was allegedly being conducted according to the rule of law?  If we went ahead and accepted thee emails and faxes that the hackers claimed showed that this was really happening, then surely that evidence would be enough to prove our claims and so win our cases, even before we had completed our submissions!  This was such a big issue.  But… after what had, back then, been recent events, and with a heightened vigilance, I had a terrible gut-feeling that Telstra and the Government might be setting us up so they could then claim that we had acquired the evidence illegally, and that could possibly be used so that the Government could call a halt to our arbitrations and so stop us in our tracks.

My thoughts were all over the place.  After having lost the diaries that I desperately needed to assist me in my claim; after the burglary at Graham’s business; and with the loss of so many COT-related documents, I was becoming more and more nervous. I was seriously afraid that we were deliberately being lured into this process, i.e. accessing documents illegally, and, if I was right but we accepted the hackers’ offer, then we could kiss our arbitrations goodbye.  I suspect that it was my fear alone that eventually convinced Graham to decide against accepting the documents, even though we were both aware that they could, possibly, be a really valuable support for our claims.  Years later, as the following link shows, the media claimed that Julian Assange had helped the Victorian police in relation to a number of child abuse cases (see https://en.wikipedia.org/wiki/Julian_Assange) and it was then that we realised what we had missed out on. It seemed that a very young Julian Assange was prepared to fight in support of natural justice for ordinary citizens.  If only we had known that when Graham received the email from Assange and his team.

Sadly, as our Manipulating the Regulator page shows, the government communications regulator AUSTEL, in April 1994, did conceal the truth about the seriousness of the network problems affecting my case and that of Graham Schorer (see AUSTEL’s Adverse Findings, 20111025143553046 and 20130627133948062.). So, the hackers were right all along.

The fallout from all this became evident some weeks after my arbitration hearing in October 1994 when the arbitrator asked for my annual diaries for assessment. During this hearing, I begged to be allowed to submit these fault-complaint notebooks (as the transcripts of this meeting show). I explained how, and why, I had to copy fault-complaint records into the diaries from exercise books and affirmed that nonetheless, my chronology of fault events was true and correct. But Telstra objected and the arbitrator asserted without viewing them, that they were irrelevant. Garry sent the diaries directly to the arbitrator’s office. Two months later, in February 1995, Telstra advised the arbitrator that they had found discrepancies in my diaries, claiming I had added entries after the date that the calls and incidences recorded had actually occurred.

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Although Telstra submitted their defence of my claims on 12 December 1994, they waited until February 1995 before officially advising the arbitrator, that their forensic document researcher had found discrepancies in those diaries, claiming that I had added entries sometime after the date that the calls and incidences recorded had actually occurred. As stated above, I do not deny this since I copied the fault complaint records into the diaries directly from my exercise books, so that the diaries could be kept off-site, away from my office. This does not change the fact that the desktop exercise books’ chronology of fault events, as well as who had telephoned, when and what telephone conversations were about, were true and correct. Nevertheless, when it came to his summary in relation to these diaries, the arbitrator stated in his award:

… I have considered, and have no grounds to reject the expert evidence provided by Telecom’s, Forensic Document Examiner, who examined the claimant’s diaries and because of numerous instances of non-chronological entries, thereby causing doubt on their veracity and reliability”.

I contend that if the arbitrator had allowed these exercise books as evidence and had provided them to Telstra’s forensic documents examiner, he would have had a clearer understanding of what the exercise books really were and would have realised there were no attempts at deception.

Prior to the 21 April 1994 signing of the arbitration agreement, and before the final COT report was provided to the communications minister on 13 April 1994, I and some other COT Cases attended a two-day, lock-up, confidential viewing of the draft COT Cases report at AUSTEL’s headquarters in Queens Road, Melbourne.

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At this meeting, AUSTEL’s chairman Robin Davey reminded Graham Schorer and I of commitments stated in a letter (dated 23 September 1992) from Telecom’s commercial and consumer managing director:

‘The key problem is that discussion on possible settlement cannot proceed until the reported faults are positively identified and the performance of your members’ services is agreed to be normal. As I explained at our meeting, we cannot move to settlement discussions or arbitration while we are unable to identify faults which are affecting these services’ …and…’Until we have an understanding of these continuing and possible unique faults, we have no basis for negotiation’ (Arbitrator File No/78 AUSTEL COT Case Report, point 5.7)

I cannot recall now how many COTs attended this lock-up AUSTEL meeting, but I do clearly remember there were at least seven of us who were quite vocal. I also recollect very clearly what I spoke about and which documents we were told we could not take out of the building. One thing was very obvious from all the security arrangements around the reading of the draft of AUSTEL’s COT Cases report: the government regulator did not want the public to know what the COT and AUSTEL investigations had uncovered in relation to the many systemic faults within Telstra’s copper wire and fibre network.

The following is from the transcript of an oral interview of AUSTEL’s representatives, Bruce Matthews and John McMahon, conducted at the Commonwealth Ombudsman’s Office on 22 September 1994. On page 7 of this transcript the Commonwealth Ombudsman’s officer John Wynack asked: What was the date the report was issued, the AUSTEL report?” AUSTEL’s representative replied:

“The final report was April – I can’t remember the date in April, but April 1994. The draft report was produced in March 1994 and Telecom received their copy of that at the time.” (See Destruction of Evidence / Perverting The Course of Justice/Falsification Reports File No/4)

While this statement by one of AUSTEL’s representatives makes clear that Telstra received a copy of AUSTEL’s draft findings, NONE of the information in this report, which enabled the government communications regulator (AUSTEL) to arrive at their adverse findings against the Telstra Corporation, was ever made available to the COT claimants during their arbitrations. The following letters, dated 8 and 9 April 1994, to AUSTEL’s chairman from Telstra’s group general manager, suggests that AUSTEL was far from truly independent, but rather could be convinced to alter their official findings in their COT reports, just as Telstra has requested in many of the points in this first letter. For example, Telstra writes:

“The Report, when commenting on the number of customers with Cot-type problems, refers to a research study undertaken by Telecom at Austel’s request.  The Report extrapolates from those results and infers that the number of customers so affected could be as high as 120,000.In relation to point 4, you have agreed to withdraw the reference in the Report to the potential existence of 120,000 COT-type customers and replace it with a reference to the potential existence of “some hundreds” of COT-type customers” (See Open Letter File No/11, page 3, point 4)

The following day, Telstra again writes to AUSTEL stating:

“the number of Telecom customers experiencing COT type service difficulties and faults is substantially higher than Telecom’s original estimate of 50″. (Public Government Report)

The fact that Telstra (the defendants) were able to pressure the government regulator to change their original findings in the formal 13 April 1994 AUSTEL report is deeply disturbing. The 120,000 other customers – ordinary Australian citizens – who were experiencing COT-type problems are not referred to in the Department of Communications Information Technology and the Arts (DCITA) report (see Senate Evidence File No 28), although this was used by them to determine the validity of the COT claims

Telstra signed this on 18 November 1993 and the four COT cases (me included) on 23 November 1993. Various commonwealth ombudsman letters sent to Telstra on behalf of the four COT cases are attached to various absentjustice.com download links, and they clearly show we were disadvantaged because of our trust.

Some readers may be wary of accepting all I write here as truth, as I am aware that some of it seems so outlandish. Evidential documents and testimonials support 95% of what I state on absentjustice.com. However, the reader should understand that not all things can be proven, including my verbal discussions with both the TIO and TIO Special Counsel who, up and until 21 April 1993, administered the above Fast Track Settlement Proposal commercial assessment proposal

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My statement, that 5% of this saga cannot be proved, revolves around those discussions. As God is my judge (not said lightly at age 71) I stated clearly and often to the TIO and TIO Special Counsel during the Fast Track Settlement Proposal prior to signing the Fast Track Arbitration Procedure arbitration on 21 April, 1994: How can I be forced into this bloody arbitration process when Telstra has not provided me with all of my promised FOI documents and/or fixed the ongoing telephone problems that are still destroying my business?

I was not aware, at the time, of AUSTEL’s secret findings in their 3 March 1994 investigation into my complaints – where the final statements in the 69-page report (see Open Letter File No/4 File No/5 File No/6 File No/7, include:

“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. 

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”. (See File No/7,)

In other words, AUSTEL, and perhaps Telstra, suspected that Telstra’s future arbitration Service Verification Testing of my telephone service lines would NOT locate the “causes of faults being reported” either during or after my 1994/95 arbitration. AUSTEL’s chairman, the TIO and TIO Special Counsel, between November 1993 and mid-April 1994, made it quite clear the technical consultants appointed to the process (under the direction of the assessor/arbitrator) would investigate all ongoing problems. This process should ensure that Telstra rectified all the faults before a finding could be handed down. The many exhibits in our absentjustice.com download attachments show that the arbitrator, the TIO and the TIO-appointed resource unit had a different agenda to the arbitration agreement. We, the COT Cases, were forced to proceed with without the necessary information we needed to fully support our claims.

In my case, if Telstra had not deliberately withheld important network documents and/or provided them too late, I could have clearly impressed the arbitrator to hand down an interim award before he left for Greece, but he could NOT publish the final version of that award until the arbitration technical consultants properly determined the reasons for the lines continually locking up after calls terminated.

I didn’t receive AUSTEL’s covert 69-page report from the Australian Communications & Media Authority (ACMA) until it was provided to me under FOI on 27 November 2007. This was twelve years after the TIO issued a media release (12 May 1995) publically declaring that I had received natural justice (see Arbitrator File No/79). That statement was made more than two hours after the TIO received a letter (also dated 12 May 1995) from the arbitrator advising that the arbitrator’s findings in relation to my case had been based on an agreement that was not credible and needed revising for the following claimants. This TIO was sworn in as a minister in the new Australian Liberal Coalition Government, 10 months later, with a front bench seat and a portfolio to match.

Returning to the removal of liability from the resource unit and special counsel, despite advice by the official administrator to the arbitration that they had to incur some liability (see Open letter File No 54-A to 54-F). Why did the arbitrator allow the arbitration agreement to be altered to suit the resource unit and special counsel?

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This leads us to examine the following events: First we have the 22nd March 1994 covert, pre-arbitration meeting that was attended by these three characters (the TIO, the TIO’s Special Counsel and the arbitrator), so they could discuss the arbitration agreement with Telstra’s Arbitration Liaison Officer and Telstra’s Legal Counsel. They met, without advising the claimants about that meeting, with the defendants and their lawyers, and then we also have those same three gentlemen, all qualified lawyers, agreeing to allow the Resource Unit and the TIO’s Special Counsel to be completely exonerated from any liability at all, in connection with the arbitrations.

What sort of collusion was going on behind closed doors unbeknown to the claimants, and how many other clandestine agreements were made without our knowledge? As the administrator to our arbitration, the TIO should have ensured that before any party signed the arbitration agreement, both the claimants and the defendants were provided with the amended form to acknowledge and sign that they agreed to the changes made. What really prompted these three parties, the TIO, the TIO Special Counsel and the arbitrator, to ensure the removal of these liability clauses? In the government communications regulator’s AUSTEL COT Cases Reportthat was provided to Communications Minister, the Hon Michael Lee MP (see point 5.67, Arbitrator File No/89), it is clearly stated that:

“the arbitrator is to be a person of clear impartiality, independence and integrity with expertise in relevant legal, technical and accounting issues or access to them and with experience in commercial assessment and arbitration”

 That fact alone should have been enough for the TIO and the government communications regulator to declare our arbitrations null and void. That my arbitrator was NOT of clear impartiality or independentshould also have been enough to declare the process a grave miscarriage of justice. This arbitrator, in fact, had been Graham Schorer’s business AND legal advisor for a number of years, as well as an official legal advisor for Mr Schorer’s earlier claim against Telstra in the Federal Court, in relation to the very same telephone fault issues that the arbitrator was now assessing, for a second time, as the impartial and independent arbitrator. See this conflict of interest issue further on in our story.I am not implying that the arbitrator had no relevant legal, technical or accounting ability, or access to or experience in commercial assessment. However, we know that he was not experienced in arbitration at that time, despite the government regulator officially advising the minister and the public that he had to be in order to arbitrate complex matters like the COT arbitrations. It was therefore a risk for all concerned to appoint an arbitrator who was NOT properly qualified (graded), and it is clear now that both the government communications regulator and the President of the Institute of Arbitrators Australia were aware of this fact.

11 April 1994: This letter, from me to Telstra’s CEO (later returned to me by the Australian Federal Police [AFP], marked Protectedstates:

“Would you please instruct the management team within Telstra that can be respond to this request. How does a conversation I had with a former Prime Minister Mr Malcolm Fraser, end up in s Telecom document as common knowledge. I spoke with Mr Fraser yesterday of this matter. He has made it very clear he did not talk to anyone within Telecom about our conversation in the month of April last year”. (See also Main Evidence File No 31)

AFP transcripts (see Australian Federal Police Investigation File No/1) show this particular issue was also discussed during my second interview with the AFP on 26 September 1994. Telstra was unable to give either the AFP or I a feasible answer regarding how they learned of this phone conversation with Mr Fraser. Chapter two in Hacking – Julian Assange provides further details on the extent of the privacy breaches.

14 April 1994: A letter (protected under the AFP Act) from Telstra’s arbitration liaison officer to the detective superintendent of the AFP states that Telstra only voice-monitored my telephone service from June to August 1993.

It records the police asking me about a hand-written reference to a bus company Telstra appeared to have added in the top right corner of a letter I had written previously, on 10 September 1992, to Telstra, although the name was not mentioned in that letter (now stamped AFP protected). It is true that I was tendering to a number of bus companies during 1992, including Nuline Bus Services, Centre Road, Bentleigh; Moonee Valley Bus Lines, Tullamarine; Warrnambool Bus Lines and O’Meara’s (the name hand-written in the corner of this letter). I had contacted all four companies for the same tender in an attempt to use one of their services to bring people from Melbourne to Cape Bridgewater, but since O’Meara’s was not mentioned anywhere in the letter, it had been added. It would seem that Telstra was actually voice monitoring my phone calls or intercepting my faxes as early as September 1992.

Was it during this period that my two diaries just vanished from my office? An AFP officer who visited my business in February commented with words to the effect, that things are not what they should be with the Telstra Corporation.

Returning to the removal of liability from the resource unit and special counsel, despite advice by the official administrator to the arbitration that they had to incur some liability (see Open letter File No 54-A to 54-F). Why did the arbitrator allow the arbitration agreement to be altered to suit the resource unit and special counsel?

This leads us to examine the following events: First we have the 22nd March 1994 covert, pre-arbitration meeting that was attended by these three characters (the TIO, the TIO’s Special Counsel and the arbitrator), so they could discuss the arbitration agreement with Telstra’s Arbitration Liaison Officer and Telstra’s Legal Counsel. They met, without advising the claimants about that meeting, with the defendants and their lawyers, and then we also have those same three gentlemen, all qualified lawyers, agreeing to allow the Resource Unit and the TIO’s Special Counsel to be completely exonerated from any liability at all, in connection with the arbitrations.

What sort of collusion was going on behind closed doors unbeknown to the claimants, and how many other clandestine agreements were made without our knowledge? As the administrator to our arbitration, the TIO should have ensured that before any party signed the arbitration agreement, both the claimants and the defendants were provided with the amended form to acknowledge and sign that they agreed to the changes made. What really prompted these three parties, the TIO, the TIO Special Counsel and the arbitrator, to ensure the removal of these liability clauses? In the government communications regulator’s AUSTEL COT Cases Reportthat was provided to Communications Minister, the Hon Michael Lee MP (see point 5.67, Arbitrator File No/89), it is clearly stated that:

“the arbitrator is to be a person of clear impartiality, independence and integrity with expertise in relevant legal, technical and accounting issues or access to them and with experience in commercial assessment and arbitration”

 That fact alone should have been enough for the TIO and the government communications regulator to declare our arbitrations null and void. That my arbitrator was NOT of clear impartiality or independentshould also have been enough to declare the process a grave miscarriage of justice. This arbitrator, in fact, had been Graham Schorer’s business AND legal advisor for a number of years, as well as an official legal advisor for Mr Schorer’s earlier claim against Telstra in the Federal Court, in relation to the very same telephone fault issues that the arbitrator was now assessing, for a second time, as the impartial and independent arbitrator. See this conflict of interest issue further on in our story.I am not implying that the arbitrator had no relevant legal, technical or accounting ability, or access to or experience in commercial assessment. However, we know that he was not experienced in arbitration at that time, despite the government regulator officially advising the minister and the public that he had to be in order to arbitrate complex matters like the COT arbitrations. It was, therefore, a risk for all concerned to appoint an arbitrator who was NOT properly qualified (graded), and it is clear now that both the government communications regulator and the President of the Institute of Arbitrators Australia were aware of this fact.

11 April 1994: This letter, from me to Telstra’s CEO (later returned to me by the Australian Federal Police [AFP], marked Protectedstates:

“Would you please instruct the management team within Telstra that can be respond to this request. How does a conversation I had with a former Prime Minister Mr Malcolm Fraser, end up in s Telecom document as common knowledge. I spoke with Mr Fraser yesterday of this matter. He has made it very clear he did not talk to anyone within Telecom about our conversation in the month of April last year”. (See also Main Evidence File No 31)

AFP transcripts (see Australian Federal Police Investigation File No/1) show this particular issue was also discussed during my second interview with the AFP on 26 September 1994. Telstra was unable to give either the AFP or I a feasible answer regarding how they learned of this phone conversation with Mr Fraser. Chapter two in Hacking – Julian Assange provides further details on the extent of the privacy breaches.

14 April 1994: A letter (protected under the AFP Act) from Telstra’s arbitration liaison officer to the detective superintendent of the AFP states that Telstra only voice-monitored my telephone service from June to August 1993.

It records the police asking me about a hand-written reference to a bus company Telstra appeared to have added in the top right corner of a letter I had written previously, on 10 September 1992, to Telstra, although the name was not mentioned in that letter (now stamped AFP protected). It is true that I was tendering to a number of bus companies during 1992, including Nuline Bus Services, Centre Road, Bentleigh; Moonee Valley Bus Lines, Tullamarine; Warrnambool Bus Lines and O’Meara’s (the name hand-written in the corner of this letter). I had contacted all four companies for the same tender in an attempt to use one of their services to bring people from Melbourne to Cape Bridgewater, but since O’Meara’s was not mentioned anywhere in the letter, it had been added. It would seem that Telstra was actually voice monitoring my phone calls or intercepting my faxes as early as September 1992.

Was it during this period that my two diaries just vanished from my office? An AFP officer who visited my business in February commented with words to the effect, that things are not what they should be with the Telstra Corporation.

The Arbitration (Deception) Continues

When the four COT cases signed our government-endorsed arbitration, we were unaware the confidentiality clauses would be used against us to stop us exposing criminal conduct perpetrated against us by the defendants and others associated with the administration of the process. This confidentiality agreement successfully stopped a proper, transparent investigation into why the arbitrator had not control over the arbitration process and why the arbitrations were conducted outside of the ambit of the arbitration procedures (see below). As the following link, Is a non-disclosure agreement legal if it is utilized to cover a, shows, Telstra, the previous arbitrator and the TIO allowed a secret deal to be implemented into the agreement as Chapter Seven below shows. This covert deal benefited Telstra, to the detriment of the claimants. These people should not be permitted to hide behind that confidentiality agreement, as has been the case these past two decades.

21st April 1994, six months later and still with NO discovery documents, we signed the Fast Track Arbitration Agreement despite the lack of the promised documents we would need to prove our claims. This was later confirmed on 23rd March 1999: after the Senate Estimates Committee Hearing into why Telstra withheld so many documents from the COT Cases had been concluded. The Australian Financial Review (an Australian weekly newspaper) reported that the Chairman of the Committee, Senator Alan Eggleston, had stated:

A Senate working party delivered a damming report into the COT dispute. The report focussed on the difficulties encountered by COT members as they sought to obtain documents from Telstra.

The report found Telstra had deliberately withheld important network documents and/or provided them too late and forced members to proceed with arbitration without the necessary information. Senator Eggleston said:

“They [Telstra] have defied the Senate working party. Their conduct is to act as a law unto themselves”.

Senator Eggleston’s statement that “The report found Telstra had deliberately withheld important network documents”, is quite clear. The TIO board and council definitely hid two important issues from the Senate Estimates Committee: (1) The board and council knew that the TIO-appointed resource unit ALSO stopped the COT claimants from receiving relevant documents during the arbitration process, and (2) The TIO and the defendants (Telstra) allowed this to happen by secretly placing the resource unit in charge of deciding what documents they thought were relevant for the arbitrator to view and which documents they thought should be withheld from the arbitration process. (See Chapter Seven, A Secret Deal, below)

The resource unit failed to disclose to the arbitrator, during my arbitration, the ongoing problems that my business was experiencing, with lockup faults on my 1800 service line preventing calls from coming in and incorrect charging for calls that arrived at the Portland exchange 20 kilometres away but never arrived at my business. As shown in Arbitrator File No/53, although the resource unit advised the arbitrator and TIO 15 months after my arbitration that they had withheld this vital information from the arbitration process, it was of little assistance to me, because the TIO failed to follow up on why this had been allowed to happen.

What might have happened, if the Senate Estimates Committee had been aware of these facts during their two-year investigation into the non-supply of documents to the COT claimants? Would the TIO have been officially brought before the Senate and made to explain why the TIO and defence via the resource unit had secretly been allowed to act as a secondary arbitrator, with the power to decide which documents reached the arbitrator and claimants, and which were withheld? Remember, there was no mention of this in the arbitration agreement we signed.

In mid-April 1994, the TIO (the arbitration administrator) knew that the four claimants had registered various FOI requests in November and December 1993, asking for discovery documents. All four, including me, had still not received anywhere near the amount of information needed to mount our individual claims. I, like Senator Eggleston, use the word forced because the TIO was very clear when he told the COT cases that if they did not sign for the TIO arbitration process (which, he said would allow the arbitrator access to the documents they were all asking for) then he would not continue to administer the already-signed Fast Track Settlement Proposal. If this sort of pressure applied by the TIO was not placing a claimant under duress to sign a document he or she does not want to sign, then what is? A Telstra internal email dated 2 March 1994 (Arbitrator File No/86) that discusses a number of proposed COT arbitration issues, between a number of Telstra’s executives, includes the comment:

“My course therefore is to force [the arbitrator] to rule on our preferred rules of arbitration.”

The rules referred to here are the very same Telstra-designed Preferred Rules of Arbitration the TIO’s office secretly used for the COT arbitrations, while at the same time telling various government ministers and the claimants that the rules they were about to sign had been drawn up by the arbitrator and the President of the Institute of Arbitrators Australia. Therefore, not only did Telstra get the structured legal arbitration process they wanted, but they also managed to force the arbitrator to use the arbitration agreement that was eventually branded ‘not a credible agreement to have used’. Of course, by then, he had used it anyway – for my arbitration.

Senator Ron Boswell made an astonishing statement in the Senate on 20 September 1995, raising his concern regarding Telstra’s statement: ‘My course therefore is to force [the arbitrator] to rule on our preferred rules of arbitration.’ Quite emotionally, Senator Boswell added that:

“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”. (See Senate Evidence File No 1)

It now seems that no-one can explain, or perhaps no-one is prepared to explain, where the arbitrator was when the first four COT claimants were ‘forced’ to go to the Commonwealth Ombudsman in the hope that the Ombudsman would force Telstra to comply with the law. One of the hardest things to understand is that although the arbitrator was somehow forced to use Telstra’s proposed rules of arbitration instead of an independently drafted agreement, even though many senators on both sides of Australian politics were told that the agreement had been independently drawn up when it had not, those responsible for this deception have never been brought to account for what they did and almost as alarming is the way I, the first to go through arbitration, was discriminated against when the three claimants whose arbitrations followed mine received so much more time (years in one case) to submit their claims and answer Telstra’s defence of those claims than I had been allowed.

Documents Will Be Supplied?

The arbitrator, the administrator, and special counsel assured the four COT parties that the Telstra documents they required for their cases would begin to flow through to them once their signatures were on the agreement (see Crimes Act 1958 Evidence File No 9). This was stated before we signed the agreement. By May 1994, one month before the deadline to submit claims, the flow of documents stopped. (See Senate Evidence File No 1) Therefore, I personally arranged to go to Melbourne on the 14 May 1994 to look at some FOI documents that Telstra had stated they would show me in their offices.

These two officials supplied me with some of the documents that I should have received under my December 1993 FOI requests. One of these officials provided 30-odd heavily blanked out documents plus approximately 56 fax coversheets with attached documents. One of these documents referred to the MELU (Melbourne) exchange, which had caused me massive problems between August 1991 and March 1992, (see Crimes Act 1958 Evidence File No/1). I asked one of the officials if he could supply the document without the blanking out. This official went away for some time while I continued to check the documents provided.

I had some documents that Telstra had previously supplied with me, and while this official was away from the room, I examined some fax coversheets I had seen before. They now had different material attached. Nothing seemed to match. For example, documents relating to a fault in 1991 were attached to a fault record dated 1993 that stated that no fault had been found. I was so alarmed at this discovery that I phoned Detective Superintendent Jeff Penrose of the Australian Police and described the situation to him. At his suggestion, I prepared a Statutory Declaration (see Crimes Act 1958 File No/3), which I provided to both the TIO and the arbitrator. Even though the TIO was acting as the administrator to my arbitration, the TIO office refused to send anyone to accompany me back to Telstra’s FOI viewing-room. Considering that, as already noted in my absentjustice.com for this date period, Telstra documents show Telstra’s arbitration liaison officer wrote to the TIO regarding the TIO-appointed resource unit and AUSTEL censoring Telstra documents before the four COT claimants were allowed to use them to support their claims. We have to wonder, is this why no one from the TIO’s office would help to investigate this discovery further?
I needed to know how I could safely submit those records to the arbitration, while maintaining my patrons’ privacy. The TIO thought I should raise this matter with the arbitrator, who could make provisions to have this material viewed in complete security.

Transcripts from my arbitration hearing on 11 October 1994 (see Main Evidence File No 46) confirm that, under pressure from the defendants (Telstra), the arbitrator refused my request to submit this information. He claimed that it was not relevant. Two significant people thought that information was very relevant to my case; my original Fast Track Settlement Proposal claim advisor Selwyn Cohen, of Low Lipman Melbourne Accountants and my later Fast Track Arbitration Procedure claim advisor, Barry O’Sullivan (now Senator Barry O’Sullivan).In May 1994, accompanied by Ms Claire Allston, I met with the TIO in his office in Exhibition Street, Melbourne. I explained that I needed to submit records of my singles club patrons to the arbitration, to support my claim regarding revenue losses I sustained from that part of my business. This was on top of the revenue losses from the holiday camp patronage – all as a direct result of phone and fax problems. I told the TIO I was extremely concerned about the burglaries and break-ins at the premises of COT members Graham Schorer and Garry Dawson, plus an unexplained loss of relevant claim material from my own business. I was also anxious about the security of names and addresses for my singles club patrons and apprehensive they may be made public. If that did occur, I might be held responsible.

It is important to note that some of the registered faults recorded with Telstra, before my arbitration, were deleted/removed from some of documents I studied in Telstra’s FOI viewing room (see Crimes Act 1958 Evidence File No/1File No/2File No/3 and File No/4). I have since provided many exhibits (part of the COT cases chronology of events) to the Australian Prime Minister’s office and the AFP, which prove the existence of the faults that I registered over the six years covered by my arbitration claim. Those documents, however, appear to have never arrived at the arbitrator’s office.

22 April 1994:  This fax from AUSTEL to me, which is dated the day after I signed the arbitration agreement, explains that AUSTEL had received three blank faxed pages (from my fax line – 55 267 230. AUSTEL determined these three faxes had come from my office by checking their fax journal. On this occasion all three pages had a very small outline of a square at the top left side of each page. AUSTEL’s fax journal shows transmission times for these blank page of 01.40, 02.13, and 2.22 minutes and my fax account includes charges for these pages, even though there was no identification on the pages that AUSTEL received to show where they had come from. It was important to discuss this blank-page episode at the beginning of my arbitration because I continued to report, to the arbitrator, the ongoing problems I was having with faxes and my suspicion that faxes I had sent to the Arbitrator had never arrived.

I faxed Dr Hughes further claim material

23 May 1994: This fax billing account confirms I made five attempts from my office to fax this information to Dr Hughes failed. Telstra’s B004 defence document stated the fax couldn’t get through because Dr Hughes’s fax machine was busy. If this is so, why was I charged for the five calls?

MISSING FAXES

After numerous faxes sent from my office to Dr Hughes did not get through, I became more and more agitated. I had no idea where these faxes might be disappearing to, or why.

Documentation obtained from Ferrier Hodgson Corporate Advisory (FHCA) and the TIO-appointed arbitration resource unit confirm numerous documents forwarded to Dr Hughes’ office did not appear on their list of documents as being received.

COMMENTARY:

Between me signing the Fast Track Settlement Proposal, 23 November 1993, and realising Dr Hughes’ office was not getting all of his transmitted faxes, I participated in these official inquiries and investigations:

  • The AFP investigation, which was still in progress.
  • The AUSTEL investigation into my matters.
  • The Commonwealth Ombudsman investigation into my FOI matters, which was not completed until May 1997, two years after my arbitration was deemed finalised.

Question

How could anybody believe that it was reasonable to expect the COT Cases to successfully prepare their claims while they were involved in the above investigations?

27 May 1994: Trying to produce a claim in some readable form when the story was so complex, multi-layered and further complicated by long-delayed access to necessary information, was extremely difficult. My phone and fax lines became lifelines to Garry Ellicott in Queensland. When Garry attempted to ring me on 27 May 1994 on my 1800 service, he twice reached a recorded announcement telling him my number was not in service, before he was finally connected. When Garry rang the Telstra fault centre to complain about the recorded messages, the operator told him she could not register the fault because the complaint had to come from the customer. Garry’s response was understandably blunt. How, he asked, can the customer complain if he doesn’t know I’m trying to reach him? How can he complain if he is not aware that his incoming callers believe he’s no longer trading? When my telephone account arrived I had, of course, been charged for both failed calls. These 27 May 1994 recorded voice messages were quietly investigated by the government regulator AUSTEL (now ACMA) instead of the arbitrator.The arbitration process appears to have been set up to investigate only some issues, with the more important ones addressed in camera. Of course, the claimants were never advised of these facts, before they signed for the arbitration.

15 June 1994: In the claim I lodged with arbitrator, I made it very clear that:

  • The FOI documents Telstra supplied, had not been supplied with the required schedule FOI numbering system;
  • It was extremely difficult to compile and submit a complete claim when Telstra provided so much documentation without schedules and heavily censored;
  • Because of these problems, I would be submitting further documents to support my original claim submission; and
  • George Close, my technical advisor, had not yet received the relevant technical data I had requested under FOI in December 1993 and so his report would be delayed.

The arbitration agreement states quite clearly that the arbitrator would pass the claim to Telstra once it has been completed. Then, he was to allow Telstra one month to submit their defence. George Close (my technical advisor) wasn’t able to submit his report until late in August 1994. Various documents indicate that Telstra had received my interim claim by 21 June 1994. However, since it was only an interim claim and my formal claim wasn’t complete until George’s report had been submitted, this meant that the arbitrator allowed Telstra at least three months in which to prepare their defence. The timing obviously began when they received my interim claim. Telstra did not submit their defence until 12 December 1994, almost six months after receiving my interim claim. The arbitrator allowed them that extra time. None of the claimants knew that the arbitrator was not a properly graded arbitrator, but that he was actually in the process of attaining his grading, while he was arbitrating on the extremely complex COT cases. Unfortunately, the arbitrator failed his grading exams on this occasion. Then-president of the Institute of Arbitrators Australia (Mr Nosworthy) wrote to me on 10 April 2002 noting:

“Dr Hughes  has written to me expressing uncertainty as to whether he was a member of the Institute of Arbitrators Australia at the time of the arbitration. Although our records indicate that he was a member, he was not at the time a graded arbitrator within the Institute, and was not included on the Register of Practising Arbitrators until well after he delivered the award in your matter on 11 May 1995.” (See Arbitrator File No/87)

So why have the TIO (the process administrator) and the government (who endorsed the first four COT arbitrations) never held the arbitrator to account for misleading all parties involved in the arbitration into believing that he was a properly qualified arbitrator? This is particularly pertinent when it is examined in the context of a letter dated 28 September 1996, from Mr J.J Muirhead, as president of the Institute of Arbitrators Australia, to me (see Arbitrator File No/88). He commented that not appointing an arbitrator from the Institute means “there is always a risk in these circumstances”. How can an arbitrator write to the president of the Institute of Arbitrators Australia, expressing uncertainty as to whether he was a member of the Institute of Arbitrators Australia at the time of the arbitration”? Why have the TIO and the person who appointed this ungraded arbitrator never been brought to account for not ensuring he was fully graded.

Chapter Seven

Reinstated liability Clauses

June 1994: This letter, from Telstra’s Arbitration Liaison Officer to the TIO Special Counsel, who had been exonerated from all liability for his part in the first four COT arbitrations, included the new version of the arbitration agreement that would be used for the next 12 COT claimants. Point 11.2 of this new agreement states that

“The liability of any independent expert resource unit used by the arbitrator, for any act or omission on their part in connection with the Arbitration, shall be limited to $250,000.00″.

Thus, a few months after the $250,000 liability caps had been removed from my arbitration agreement, they were reinstated into the agreement for the remaining 12 COT claimants. Why were the claimants NOT advised of the reinstatement of the liability clauses? Why were we not offered the opportunity to go back to the original agreement that the arbitrator’s secretary had faxed to Alan Goldberg and William Hunt (our lawyers) as the approved final agreement? Why were the three claimants (including me) forced to continue with an arbitration agreement that allowed the Resource Unit to be safely exonerated from all liability, YET in the agreement used by 12 other COT claimants; they were mandated to conduct those arbitrations within the law? Three COT claimants, Graham Schorer, Ann Garms and I, were discriminated against, without question. Exhibit Hacking-Julian Assange File No/42 is from the TIO’s Standard Arbitration Rules used for other COT-type claims against the Telstra Corporation. Liability is covered in Rule 31, which states:

“The liability of any independent expert used by the Arbitrator is limited to $250,000 for any act or omission on their part in connection with the Arbitration”.

This means that any Australian citizen who enters into a TIO-administered arbitration could sue any independent expert used by the arbitrator, to the limit of $250,000 “for any act or omission on their part in connection with the Arbitration”. Graham Schorer and I were not afforded these same entitlements. This was, in fact, illegal as well as discriminatory. That the defendants (Telstra) in an arbitration were able to discuss with the official administrator of the process (in this case the TIO) whether certain discovery documents or pieces of evidence should be released to the arbitrator, and even whether they should be released at all, shows just how much control the defendants (Telstra) had over the administrator.

Furthermore, as the next instalment of the story shows, this control extended to the arbitrator and the TIO-appointed resource unit.

In summary, Senators Alston and Boswell took up COTs’ cases with Telstra and AUSTEL in August 1993 and stated that if they were not swiftly resolved there would be a full Senate Inquiry. Telstra agreed to co-operate, and AUSTEL was authorised to make an official investigation into our claims. As a result of their investigation, AUSTEL concluded that there were indeed problems in the Telstra network and the COT four had been diligent in bringing these issues into the public domain.

Because we were all in such difficult financial positions, AUSTEL’s chairman, Robin Davey, recommended that Telstra appoint a commercial loss assessor to evaluate our claims. These claims had already been found generally valid in AUSTEL’s report. All that remained was for an assessor to determine an appropriate settlement, based on the detailed quantification of our losses. This Fast Track Settlement Process was to be run on strictly non-legal lines. This meant we would not be burdened with having to provide proof to support all of our claims. We would be given the benefit of the doubt in the quantification of our losses. This was the process AUSTEL specified as appropriate for our cases. Telstra was to give us prompt and speedy access to any discovery documents we needed to enable us to complete our claims as quickly as possible. It is quite likely that neither the current government, nor any government before them, has yet contemplated that:

The Australian Government owned the Telstra Corporation outright when the COTs first began the claim process;

AUSTEL conducted their investigation into my phone complaints under section 335 (1) of the Telecommunications Act 1991;

Section 342 of that Act directs that, after concluding such an investigation, AUSTEL was legally required to prepare a report and provide it to the Minster for Communications and the Arts, and that report was to cover:-

the conduct of the investigation; and

any findings that AUSTEL made as a result of their investigations.

There were seven individual COT arbitrations running simultaneously and AUSTEL had problems with acquiring documents from Telstra in relation to each one of them. However, they did not even warn the Minister for Communications that Telstra’s reluctance to provide them with the requested, relevant documents was seriously hampering their investigations, even though these documents were essential to the proper investigation of these cases. As Open Letter File No/4 File No/5 File No/6 File No/7, show (point 43, page 20; point 48, page 22; point 71, pages 28-29; point 140, page 49; point 160, page 55), in my case alone, AUSTEL made five separate attempts to acquire documents from Telstra but they were unable to complete their findings because Telstra would, or could, NOT supply the material AUSTEL needed to fully report on all the facts. This meant even though AUSTEL knew where Telstra stored their files, and had the power of government legislation to demand Telstra supply these documents, they were still not provided.

If a government communications regulator could not obtain the documents they needed to successfully investigate the COT Cases allegations, what hope did the COT cases have? Surely AUSTEL had a moral obligation, if not a statutory obligation, to fully report these facts to the government (as an endorser of these arbitrations) before the COT cases spent many hundreds of thousands of dollars, as they did, in arbitration fees trying to access documents that AUSTEL knew the claimants had NO chance of obtaining.

A Secret Deal

Telstra’s Arbitration Liaison Officer wrote to the TIO in 11 July 1994 stating:

“Telecom will also make available to the arbitrator a summarised list of information which is available, some of which may be relevant to the arbitration. This information will be available for the resource unit to peruse. If the resource unit forms the view that this information should be provided to the arbitrator, then Telecom would accede to this request”. 

The statement in Telstra’s letter “if the resource unit forms the view that this information should be provided to the arbitrator confirms that both the TIO and Telstra were aware that the TIO-appointed resource unit had been assigned to vet most, if not all, the arbitration procedural documents en route to the arbitrator. If the resource unit decided a particular document was not relevant to the arbitration process, it would not be passed on to the arbitrator or other parties. This particular secret deal has been linked to further clandestine dealings and is discussed further elsewhere on absentjustice.com. Could this secret deal be directly related to the very important 24 January 1995 arbitration letter which is discussed below under Telecommunication Industry Ombudsman?

The Telecommunications Industry Ombudsman (TIO) is an Australian National Telecommunications Industry Regulator, which seems like a good idea except that this Ombudsman is funded by the telecommunication carriers themselves, which means that it can hardly be called impartial, on any level, but particularly when they are involved in an arbitration, and their wages are actually paid by the defendants in that arbitration! Evidence available at absentjustice.com shows that, during the COT arbitrations, the TIO allowed Telstra employees (the defendants in the arbitration) to be present at all TIO board meetings, and all monthly TIO council meetings, including any that involved discussions about COT arbitration issues.  So were any of the COTs (the complainants in this legalistic arbitration process) allowed to attend those same meetings, or even invited to attend those meetings?  Of course not!  And did anyone in any position of power ever attempt to put the complainants on the same footing as the defendants?  Certainly not; once again the COTs were discriminated against in the most deplorable manner.

On 24 January 1995 I responded to Dr Gordon Hughes’ very important 23 January 1995 letter (see but I didn’t receive any acknowledgement that Dr Hughes had received it.  John Pinnock, the second TIO, later wrote to me (on 28 June 1995) claiming that no-one had received my response to Dr Hughes’ letter, so therefore the record showed that I had not replied.

After the statute of limitations had expired, and I could therefore no longer appeal my arbitration award, the TIO’s office returned most (but not all) of my arbitration documents and what was one of the documents that I DID get back?  Yes, the letter I faxed to Dr Hughes on 24 January 1995 was included, with fax machine footprint identified across the top of the document.

If Dr Hughes had replied to my 24 January 1995 letter, I could have proved Telstra knowingly used fraudulent documents as arbitration defence documents as the following link > Telstra’s Falsified BCI Report shows.

As shown in File 10 above, the TIO did NOT have the authority to introduce a separate deal into a process being conducted according to a written legal agreement. On page 5 of the Commercial Arbitration Act 1984, under Part II – Appointment of Arbitrators and Umpires, (see Open Letter File No/21

6. An arbitration agreement shall be taken to provide for the appointment of a single arbitrator unless –

(a)  the agreement otherwise provides; or

(b)  the parties otherwise agree in writing.

The fast-track arbitration procedure agreement I signed, mentions only one arbitrator. There is no written agreement in existence, seen by me, that allows a second arbitrator to determine what information the first arbitrator will see. It is interesting to collate a number of covert situations set up by key players in the COT arbitrations and mischievously concealed under the arbitration agreement confidentiality clauses, even though those events took place before the confidentiality agreement was signed. In their 2 August 1996 communication to the arbitrator (copied to the TIO), the resource unit admitted to concealing relevant documents pertaining to my billing issues from the arbitrator during the course of my arbitration. This serious matter has never been addressed by the TIO or arbitration.

1427773867000[1]

3 October 1994: Telstra’s Steve Black writes to Graham Schorer stating:

“…Subject to the confirmation of the consent and availability of the Arbitrator I confirm my agreement to meet with him, Mr Smith, Mrs Garms and yourself on Wednesday 5 October 1994, or such other date as the Arbitrator is available. The purpose of the meeting is to address the means by which these Arbitrations may be progressed promptly. In particularly the meeting will focus on issues relating to the production of documents both by Telecom and between the parties.”(AS 100)

Even though Graham Schorer and Alan had continued to raise the production of document issues with Dr Hughes (including providing evidence confirming Telstra had deleted information on received FOI documents) between February 1994 and the meeting of 5th October 1994, this meeting never took place. It is interesting to note that in Dr Hughes’ letter to Warwick Smith, dated 12th May 1995 (see below) Dr Hughes actually blamed the poor time frame in the Arbitration Agreement (for the production of documents) as one of the reasons that the Arbitration Agreement was not credible.

Apart from Dr Hughes not convening this meeting to discuss the production of documents are we to assume some sought of favouritism by the arbitrator was in progress?

3 October 1994, As Alan has noted earlier, during the AUSTEL COT Report period in April 1994, Cliff Mathieson, a technical advisor to AUSTEL, asked him to keep AUSTEL informed of any evidence that Alan found during his arbitration, which might assist AUSTEL in their investigations into 008/1800 billing and short-duration call problems.   Because of AUSTEL’s request that Alan keep them up to date, he wrote to them on 3 October 1994, providing evidence, using Telstra’s own data, which showed that they had charged Alan for two non-connected recorded voice faults (RVA) on 27 May 1994.  Alan’s evidence was supported by the fact that the person who complained about these two faults was his arbitration claim advisor, Gary Ellicott, ex National Crime Detective, and he was not a man to stretch the truth in any way.

This letter to AUSTEL on 3 October 1994 later became pivotal to Alan’s increasing anger, particularly when he then received the following information from Dr Hughes in a letter dated 15 November 1994 (AS 118):

“As I have indicated previously, I believe it would be inappropriate for me to order the production of documents in connection with the preparation of your claim, until Telecom has submitted it defence.  I will then understand the parameters of the claim.”

Alan’s frustration is clear from his response dated 27th November 1994, part of which is reproduced here (AS 119):

“I refer to your letter dated 15 November, 1994.

In paragraph three you have noted that, if newly released F.O.I. material is made available by Telecom, and if that makes it necessary for me to amend my claim, I should advise you accordingly.

I have continually corresponded with both yourself and Telecom about my concerns with regard to the conduct of Telecom Management; Simon Chalmers; Freehill, Hollingdale & Page and their delaying tactics.  Their drip feeding procedure, where the release of these F.O.I. documents is some twelve months late, has disadvantaged me in the preparation of my submission under the Fast Track Arbitration Procedure.

Newly released documents on their own may only show limited evidence, painting a small picture.  However, had this newly released F.O.I. material been released some twelve months ago, as it should have been under the F.O.I. Act, this material, when combined with documents already released, would have helped in many instances to further the point made on certain issues.

Telecom Management, by using this destructive system, has disadvantaged C.O.T. and its members throughout this Arbitration Procedure.  By not allowing all the evidence to be viewed by C.O.T., Telecom has stopped us from substantiating all our claims with all the available material.  “A Jigsaw Puzzle Can Only Be Finished When All The Pieces Are Tabled”:  and didn’t Telecom Management play this to a break!”

And, later in the same letter:

“So, in response to your letter of 15th November, 1994:  How can I amend my claim?  Telecom have already had five months to view my first submission as presented in June, 1994, and three months to view my second submission presented in August, 1994.  I am already living on borrowed time, in more ways than one, and each delayed week is having an effect, particularly where advertising for next year is concerned – this has already been disadvantaged.”

Finally, at the end of the third page, Alan noted:

“I do not have the resources to have a professional team view these additional F.O.I. documents which have just been released by Telecom.  I have spent time writing reference to these examples and enough is enough.  All future F.O.I. that has not been provided will have to stay put.  I am today mentally exhausted and unable to continue taking part in Telecom’s façade, their Merry Go Round.

I thank you for your time, and that of the Resource Team.”

This letter was sent the following day, 28 November and that evening, totally overcome with anger and frustration, Alan smashed a single barrel shotgun that had been given to him by his father-in-law, Noel Wagner, some sixteen or seventeen years earlier.

LODGEMENT OF ARBITRATION CLAIM

Although the first part of Alan’s FTAP claim was lodged with Dr Hughes on 15th June 1994, Alan was still submitting sections of his claim in October / November 1994 only partly finished due to Telstra’s unethical conduct of supplying Alan only anecdotal documents.  It is important to note that on 15th June 1994 when this anecdotal information was supplied by Alan to Dr Hughes he immediately supplied this claim material to Paul Rumble, of Telstra’s Customer Response Unit even though the Arbitration Agreement states quite clearly that the arbitrator should pass the claim on to Telstra WHEN THE CLAIM IS COMPLETE.

Dr Hughes also knew that George Close (Alan’s technical advisor) could not submit his report until late in August 1994 and this meant that the document Alan submitted in June 1994 was an interim claim only.  On 15th June 1994 Dr Hughes passed Alan’s interim claim on to Telstra, which gave Telstra a three month head start to begin preparing their defence – because Alan’s complete claim would not be submitted until George’s report was included and that would not happen until at least the end of August.  The arbitration agreement allowed Telstra only one month for the preparation of their defence in reply to the claimant’s submission.  In fact, flaunting the arbitration rules even more, Telstra did not submit their defence until 12th December 1994, almost six months after they received Alan’s interim claim.  How much more one-sided could this process have been?

Exhibit (AS 103) is derived from a thirteen-page document dated 30th March 1995, prepared by Ferrier Hodgson Corporate Advisory for Warwick Smith.  The two attached pages from this report confirm that FHCA knew that Alan’s claim was not complete until at least November 1994 including explaining that Alan had been forced to drip-feed claim material to Dr Hughes because of the way Telstra had been drip-feeding FOI documents when Alan was attempting to prepare his claim, and because Telstra did not supply the bulk of his FOI document (24,000) until after they had submitted their defence, by which time Alan had only a month to respond to their defence.  This is the ‘poor time frame’ that Dr Hughes was aware of and which he overcame for the next three claimants by allowing them between thirteen months and four years in which to submit their response to Telstra’s defence and their responses to the TIO-appointed technical consultant’s report as well as allowing them this extra period in which to amend their claims.  This is the ‘poor time frame’ that Dr Hughes alerted Warwick Smith to on 12th May 1995, and which Dr Hughes said had meant that the arbitration agreement was ‘not a credible document’ for use in the remaining arbitrations (see below).

11 October 1994: AUSTEL (now called ACMA) wrote to Telstra’s arbitration SVT engineer regarding the deficient verification testing and asked what Telstra intended to do about this deficiency (see Arbitrator File No/97).

Between 1992 and 2002, starting with the lead-up to my arbitration, there were times when I was concerned about the possibility I was under surveillance. I found it difficult to explain, even to myself, why I felt so on edge. In hindsight, I know understand various odd events, each apparently quite trivial on their own, were actually part of a bigger picture of lies and deceit that started from the formation of the COT group in 1992 and continued right up to Telstra’s threat in relation to documents I provided to the Australian Federal Police.

I spent over 20 years at sea and nearly as many years in various industrial catering jobs at mining camps. Those who know me well agree I was someone who would never walk away from an old-fashioned ‘stoush’. For a few days after receiving that particularly blatant threat, I felt uncharacteristically anxious. I actually contemplated not providing the FOI documents that Telstra had warned me about – before I realised this was just another ‘stoush’, like many others I had weathered over the years, and so, I continued to assist the AFP with their inquiries.

All this stress, however, eventually generated a trip to hospital in an ambulance, with a suspected heart attack. The final diagnosis was that it was a stress attack, which I believe was brought about by the accumulated pressure of no-one listening; not even during my arbitration, when I described the unlawful conduct of various Telstra employees and the control they apparently had over the arbitrator and the TIO. I was not the only COT who could see what was happening YET the arbitrator and the TIO stood by, neither taking action nor investigating my claims.

If the arbitrator had responded to just one of my letters, perhaps by demanding that Telstra prove

that they had carried out the SVT according to the agreement reached with AUSTEL, the TIO and Telstra (before the claimants signed their individual agreements), I could have proved the SVT process at the holiday camp failed, as we were claiming. No one would investigate this failed SVT process.

11th November 1994, confirmation l had not received all his relevant requested FOI material. John Wynack, Director of Investigations at the Commonwealth Ombudsman’s Office, wrote to Frank Blount, Telstra’s CEO.  This letter was copied on to Dr Hughes and Warwick Smith – it indicates how desperate I was becoming.  I believe that Mr Wynack made it quite clear to Mr Blount that he would be more than a little concerned if my Alan’s allegations were proved to be correct in regard to Telstra knowingly blanking out information on documents previously supplied under FOI; and/or knowingly withholding relevant documents from me.  Mr Wynack’s concerns were justified.

Please note: the fax imprint at the top of this letter – 036148730 was Dr Hughes’ office fax number which confirms his office did receive this information.

In Dr Hughes’ draft award on page 4 at 2.23 he states: “…Although the time taken for completion of the arbitration may have been longer than initially anticipated, I hold neither party and no person responsible. Indeed, I consider the matter has proceeded expeditiously in all the circumstances. Both parties have co-operated fully, (see exhibit AS 115 in file AS-CAV 92 to 127).

What is amazing about this draft award inadvertently provided to me by the TIO office in 2001, is that at the side column of this clause someone has hand-written the notation “…Do we really want to say this?” One would have to assume from this hand-written statement that they believed the arbitration process had not been as transparent as it should have. In the final Award, there is no clause 2.23 or any reference to both wordings.

What is significant about the 2.23 FOI issue see exhibits AS 114 to AS 116 in file AS-CAV 92 to 127)  is that Dr Hughes did know Telstra was not abiding by the agreed process of discovery via the FOI Act, because his office not only received John Wynack’s letter see (AS 114), they also received John Rundell Arbitration Project Manager’s letter dated 18th April 1995 which noted:

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

On page 4, of John Pinnock’s report to the Senate Estimates Committee dated 26th September 1997, he states:

“…In the process leading up to the development of the Arbitration procedures the Claimants were told that documents would be made available under the Freedom of Information Act” (exhibt AS 117 in file AS-CAV 92 to 127).

The Government Solicitor was brought into the arbitration process to ensure that Telstra provided the claimants with all the FOI documents they required but Telstra only followed these instructions after they had submitted their defence of my claim, making a mockery of the whole arbitration process, particularly since it has now been confirmed that some of the most relevant information was not given to me until weeks or, in many cases, months after the TIO had deemed his arbitration to have been ‘successful’.  The letter dated 13th October 1994 (see above and immediately below) provides further testament to claims that Dr Hughes should have abandoned all the COT arbitrations until Telstra could be made accountable for their illegal behaviour in relation to the claimants.

Dr Hughes plays Arbitrator

21 November 1994: After sending his letter of 15th November but before my reply had been drafted, Dr Hughes wrote to me again, with the following statement: (exhibit AS 120 in file AS-CAV 92 to 127)

“If I form the view, or if the Resource Unit forms the view, that there are relevant documents in the possession of either party which have been deliberately or inadvertently withheld, I shall make an appropriate order for production.”

13 October 1994: A letter sent by a Telstra whistleblower to Parliament House Canberra and received by the Office of the Hon Michael Lee, MP Minister for Communications, includes allegations against one of the Telstra executives involved in altering and removing information on documents I requested at Telstra’s FOI viewing room. Someone has added a hand-written comment on page one, pointing to this person’s name and noting [the TIO] “has been critical of [same Telstra representative] on some issue”

The deputy TIO passed this letter to the TIO, together with my statutory declaration (see Destruction of Evidence / Perverting The Course of Justice/Crimes Act 1958 File No/3) showing I had named this same Telstra representative as one of the employees who had removed information on requested FOI documents and/or had not provided the correct documentation. The TIO must have told someone – either in the government or in a regulatory position – that this Telstra representative was named by two different sources. The whistleblower’s letter (see Destruction of Evidence / Perverting The Course of Justice/Crimes Act 1958 Evidence File No/8) states under the heading Concerns and Issues

“Telstra’s Steve Black ‘Group General Manager of Customer Affairs, who has the charter to work to address and compensate Telecom’s ‘COT’ customers as well as the management of other customer issues related to Telecom, is involved in and initiates conduct and work practices that are totally unethical…

There are three main areas in which this second Telstra representative and his senior executives have sought to influence and manipulate.

1.Remove or change clear information on the position of liability.

2.Diminish the level of compensation payable to COT customers.

3.Dismissive of breaches in relation to matters regarding customer Privacy”.

When this document surfaced some four years after my arbitration, it further proved what the COTs had been claiming all along: their cases were crippled before they even submitted their claims. One particular statement on the first page of this letter caught my eye however, i.e. the whistleblower’s comment naming the same Telstra employee that I named in my statutory declaration as being part of the FOI unit that provided me altered documents in Telstra’s Melbourne office on 13 May 1994.

11 November 1994, John Wynack, Commonwealth Ombudsman Office wrote to Telstra’s CEO noting:

“At the request of (name deleted), I am notifying you of the details of the complaints made to the Ombudsman by Alan Smith;

  • Telecom claimed that documents given to Telecom by Mr Smith in 1992 had been destroyed or lost.
  • Telecom has lost or destroyed a number of files relating to his contacts with Telecom prior to 1991.
  • Telecom unreasonably delaying providing access to many documents.
  • Telecom unreasonably refused to provide the Portland/Cape Bridgewater Log Book associated with the RCM at Cape Bridgewater’ for the period 2 June 1993 to 6 March 1994″

While sworn statement one (dated 10 August 2006) by an ex-Telstra protective service officer has been addressed elsewhere in absentjustice.com (see Main Evidence File No 30), I again raise this statement here because points 20, 21 and 22 support how important this withheld Portland/Cape Bridgewater Log Book was:

(20)”…I had cause to travel to Portland in western Victoria in relation to a complaint involving suspected illegal interference to telephone lines at the Portland telephone exchange.

(21) As part of my investigation, I first attended at the exchange to speak to staff and check the exchange log book which was a record of all visitors to the exchange and a record of work conducted by the technical officers.

(22) When I attended at the exchange, I found that the log book was missing and could not be located. I was informed at the time by the local staff that a customer from the Cape Bridgewater area south of Portland was also complaining about his phone service and that the log book could have been removed as part of that investigation”.

Could this perhaps, be linked to my first disclosure to AUSTEL, in June 1993, when I explained that at least two other businesses in Portland were having considerable 008/1800 problems? In addition, I told AUSTEL that it was impossible for so many short-duration calls to have come into my business, even though that was what my telephone account showed. Telstra’s local technician had lied about the ELMI monitoring machine NOT being connected to my service, when it had been.What was in the logbook that a government regulator, Telstra’s own protective service officer and the commonwealth ombudsman’s office have been unable to gain access to it? Like much of the Cape Bridgewater fault data that AUSTEL failed to obtain from Telstra during their investigations into my complaints (see Main Evidence File No 15), I was also unable to get my hands on the Cape Bridgewater/Portland exchange logbook – not even with the help of the Commonwealth Ombudsman.

Could this be the reason why the log book vanished? Perhaps Telstra feared a class action lawsuit in the future. All I wanted was to prove my case and get on with running my business.

In my own letter to Dr Hughes, of the same date, regarding the concealment of this logbook (which I continued to seek through the arbitration process) I noted:

“I believe the following fax from the Commonwealth Ombudsman’s Office, is relevant to my claim, and not contrary to the instructions outlined in your letter dated 10th November, 1994.

“In defence of these letters and faxes I would like to state that I believed at the time of writing that I was showing both the reluctance of Telecom to assist me with the Arbitration Procedure and their efforts to inconvenience me in this Procedure. However, I understand the legal reasons you have put forward as to the inappropriateness of forwarding literature back and forth where it may be seen by parties as compromising the confidential undertakings I agreed to abide by.” (See Home Page File No 10 -A)

Dr Hughes stated I should not be sending letters to him, the TIO or Telstra unless the letters related directly to my claim. I received threats from Telstra after the signing of the agreement. Telstra refused to supply requested FOI documents and forced me out of their Melbourne Exhibition Street head office after I discovered some of my requested FOI documents were defaced while I was at lunch. Yet Dr Hughes and Warwick Smith would not approach Telstra on my behalf and demand Telstra explain those threats. The Australian Federal Police were supposed to investigate these threats and did not. It seemed Telstra controlled the whole arbitration process. This is why I stood out, alone, asking what the #$?* is going on! Where was the Portland Cape Bridgewater exchange logbook? This one document, amongst thousands, on its own would prove my case: my ongoing telephone problems and those of other Cape Bridgewater and Portland residents were true, as the daily recording of those faults, penned into the log book each day by the various technicians, would have shown. I was on my own, as were the other COT cases. Of course, later the Senate uncovered that Telstra withheld most, if not all, of the relevant, requested documents. However, the Senate’s findings, regarding this withholding, were tabled three years after my arbitration over. This was three years too late: Telstra had won and concealed that my ongoing complaints were real.

The AUSTEL report confirms they initiated the SVT process so the arbitrator to the COT process had a guide as to whether all phone and faxing problems registered by the COT claimants had been located and rectified. The arbitrator was unable to hand down his final decision until Telstra demonstrated that they had carried out the specified SVTs and proved to AUSTEL’s satisfaction that both phone and fax services to various COTs’ businesses were up to the expected network standard.AUSTEL supplied the quarterly COT Cases Report (see Arbitrator File No/100) to communications minister, the Hon Michael Lee MP, on 13 April 1994; sections from the report are also relevant to the following 11 November 1994 segment above. Points 5.31 and 5.32 in this AUSTEL report, highlight the continuing phone and fax problems encountered by the four original COT claimants’ businesses, AUSTEL directed Telstra to carry out Service Verification Tests (SVT) at claimants’ premises using AUSTEL specifications, to verify that claimants’ phone services were brought up to a proper working standard, but this did not eventuate. (See Open Letter File No/22)

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.
In the technical report Brian Hodge, BTech, MBA (B.C. Telecommunications) prepared on 27 July 2007, after viewing the Cape Bridgewater Holiday Camp (SVT) CCAS data for these tests he states:Even though AUSTEL expressed serious concerns about the obvious deficiencies in this SVT, Telstra still used these test result to support their arbitration defence.

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

By the time I received this AUSTEL Telstra letter in 2002, the statute of limitations allowing me to use this information in an appeal had expired. It is clear from Main Evidence File Nos/2 and 3 that the SVT process at Cape Bridgewater Camp was not performed according to the regulator standards.

The AFP issue, recorded in Australian Senate Hansard records of 29 November 1994, has also been addressed on this website in the Senate link, and is just as important to raise here too, in the same way that the 14 May and 13 October 1994 issues have been included above.

Both the May and October sections discuss the way Telstra destroyed evidence. More details related to these issues are also available on the Destruction of Evidence / Perverting The Course of Justice. link. It is impossible to discern which of these three events was worst; partly because all three are linked to the same topic, i.e. Telstra’s withholding and/or destroying of evidence during litigation. Neither the arbitrator nor the TIO moved to assist me in their capacity as government regulators to help me resolve any of these three major issues. In addition they did not offer to help me in relation to the threats Telstra made. It is now perfectly clear that these three issues were never addressed. It is obvious that there was something radically wrong with the way the arbitrator and TIO administered my arbitration process, but there is much more to come and the story gets even better.

Even a hardened senior Victorian police officer (who was once a police prosecutor and a qualified lawyer) could not believe that an arbitrator stated, in writing, that he and his resource unit read through 24,000 documents even though he never accepted them into the arbitration. In fact, when I first tried to submit some of them, he refused point blank to accept them. How could he, then, have the gall to tell the president of the Institute of Arbitrators that all 24,000 of them had been assessed?

How could such a well-respected learned man, an arbitrator, write such a letter to the Institute of Arbitrators Australia, knowing my claims were under investigation?

If he had told the president the truth, which was that Telstra sent the 24,000 documents to me too late for me to collate, assess and include in my reply to Telstra’s defence; (because I only had 12 days in which to do so), then the government might have investigated these matters at that time.

In response to AUSTEL’s letter noting Telstra’s SVT process conducted at my premises was grossly deficient (refer Arbitrator File No/2 letter), the Telstra SVT specialist who performed the tests – and who was also part of the management team – replied. However, the defendants demanded that the government not release any documents associated with the SVT process, without prior authorisation from them. In this 28 November 1994 letter to AUSTEL, Telstra states:

“As agreed at one of our meetings and as confirmed in your letter of 16th November 1994, attached please find the detailed Call Delivery Test information for the following customer. This information is supplied to AUSTEL on a strict Telecom-in-confidence basis for use in their Service Verification Test Review only and not for any other purpose. The information is not to be disclosed to any third party without the prior written consent of Telecom.” (See Arbitrator File No/98)

In the 16 November 1994 letter, AUSTEL warned Telstra that the Cape Bridgewater Holiday Camp SVT process at my premises had been deficient. By what legal authority could Telstra Australia insisting on confidentiality? The only legal authority behind such a request would be the Crimes Act 1914.

Later changes to Australian law render this authority irrelevant, so how can Telstra require confidentiality from AUSTEL employees working for the government communications regulator? Arbitrator File No/110 is one of two SVT testing documents discussed in the 29 November 1994 letter from Telstra to AUSTEL. These two Call Charge Analyses System (CCAS) data print-outs clearly show there were not 20 mandatory SVT tests calls generated into each of my three service lines: 03-055 267 267, 03-055 267 230 and 03-055 267 260 on the 29 September 1994. That day, this particular Telstra engineer’s SVT monitoring equipment malfunctioned. The 60 test calls that would normally be required to check faults on these three service lines, were not carried out; the lines were not held open for the 100-120 seconds required to fully test their functioning capabilities.

In October 2008 and May 2011, the Administrative Appeals Tribunals (AAT) heard my two Melbourne FOI matters. The government communications regulator (AUSTEL/ACMA) was the respondent on both occasions. I had still not received my promised discovery arbitration documents from 1994.

Arbitrator File No/110, Main Evidence File No 3 and the letter of 28 November 1994 (see Arbitrator File No/98) supported my claims against certain public servants, employed by AUSTEL, who assisted Telstra to pervert the course of justice during my arbitration. Mr Friedman, senior member, after hearing my claims, found them neither frivolous nor vexatious and supported my quest for justice.

The current ACMA chairman and lawyers were given proof that the author of the 28 November letter dictated what government regulators could or could not do during my government-endorsed arbitration, and that the writer swore under oath (12 December 1994) in his witness statement that the SVT tests met and exceeded AUSTEL’s specifications. The ACMA chairman has failed to act on this incriminating evidence.

This same Telstra employee was named in the Senate Estimates Hansard of 24 June 1997 as advising Telstra employees that the five COT cases (including me) had to be “stopped at all costs” from proving the validity of our claims (see Open Letter File No/24). As part of my AAT submission, I provided both AAT and ACMA with a 156-page Statement of Facts and Contentions, plus a CD containing some 440 supporting exhibits.

Between 24 February 2008 and 14 January 2009, more than 15 letters addressed to various ACMA lawyers and the chairman of ACMA show the contradictions in Telstra’s SVT reports and their sworn witnesses’ statements. These documents, provided during my arbitration process (which was known to be grossly deficient), were handed to both AAT and ACMA as part of the AAT submission. I also included the proof that another set of tests – the Bell Canada International Inc. (BCI) tests – submitted as evidence by Telstra during my arbitration, were also impracticable (see Telstra’s Falsified BCI Report ‘masked identities‘ and Main Evidence File No 3).

This matter was not investigated in conjunction with the deficient Cape Bridgewater SVT process. Two reports – one dated 10 November 1993, the other October 1994 – were both proved grossly inaccurate yet; the arbitrator relied solely on them and furthermore, accepted them as factual evidence. The senior executives of AUSTEL have been shown to be clearly negligent of their duties and this has had grave repercussions for all COT cases, particularly mine. It has further repercussions for the general public and the integrity of the organisation he represents.

29 November 1994: On page 180 ERC & A from official Australian Senate Hansard, it is reported that Senator Ron Boswell asked Telstra’s Legal Directorate::

‘Why did Telecom advise the Commonwealth Ombudsman that Telecom withheld FOI documents from Alan Smith because Alan Smith provided Telecom FOI documents to the Australian Federal Police during their investigations?’ (Senate Evidence File No 31)

In my original letter of 4 July 1994 to Telstra’s arbitration liaison officer I stated:

‘I gave my word on Friday night that I would not go running off to the Federal Police etc, I shall honour this statement, and wait for your response to the following questions I ask of Telecom below’.

At the time of writing this letter I had no intention of providing the AFP with any more FOI documents. However, the AFP came to Cape Bridgewater on 26 September 1994, asking a number of questions concerning this Telstra official. On page 12 of the AFP transcript of my interview at Question 57 (see full AFP transcripts, Australian Federal Police Investigation File No/1), the AFP state:

The thing that I’m intrigued by is the statement here that you’ve given (name deleted) your word that you would not go running off to the Federal Police etcetera’.

Between July and December 1994, I informed the arbitrator numerous times that Telstra was refusing to supply me with any more FOI documents because I had given sensitive FOI documents to the Australian Federal Police to assist their investigations into Telstra’s interception of my telephone conversations. This was when I realised that the arbitrator was far from independent. I received not one single response concerning these threats – from neither the arbitrator nor the TIO.

Thus, the threats became a reality. What is so appalling about the withholding of relevant documents is that no one in the TIO office or government has ever investigated the disastrous impact this had on my overall submission to the arbitrator. Material, which could further support my claims before the arbitrator, was denied me.

Furthermore, when Telstra carried out these threats, Dr Hughes covered up this up, as well as the withholding of these discovery documents, when writing to Laurie James, president of the then Institute of Arbitrators Australia, on 16 February 1996. Dr Hughes stated my not-received 24,000 FOI documents were received and read by either him or the arbitration resource unit. There was no mention in that letter that Telstra had not supplied the requested Portland/Cape Bridgewater telephone exchange logbook, which was requested under FOI and through the process of discovery. The truth surrounding these 24,000 not-viewed FOI documents can be obtained by clicking onto our Prologue page. Dr Hughes was aware Telstra had not released this important document – namely the Portland/Cape Bridgewater telephone exchange logbook, which had all the working notes of all my telephone complaints and those of other local Telstra subscribers for the period of my claim. This logbook could not be refuted, yet Dr Hughes would not request this document for me. Even though the Commonwealth Ombudsman’s office also requested this logbook to be supplied, it was unable to obtain it. (See Home Page File No 10 -A to 10-B)

The logbook in any telephone exchange has all entries by technicians who are appointed on a daily basis to locate and fix problems in the region. Not supplying this document under the legal request of discovery, by the opposing side, should have been investigated by the arbitrator: why would Telstra not release it, even to the arbitrator under confidentiality?

It is blatantly obvious the ‘establishment’ that controlled my arbitration process, also denied my rights as an ordinary citizen – an equal before the law – and ultimately deprived me the right of having justice run its due course. The arbitrator and the government (who at the time fully owned Telstra) should have initiated an investigation into why an Australian citizen, who assisted the AFP in their investigations into unlawful interception of telephone conversations, was disadvantaged during a civil arbitration process.

The Log Book

A second maters pertaining to the logbook which we have discussed above is also linked to the billing issues which AUSTEL allowed Telstra to address after the arbitration process. Had this logbook been received during the arbitration process it would have also exposed Telstra had a systemic billing problem linked to the lockup problems affecting my service and other services routed off of the Portland AXE Ericsson exchange.

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It has now been established (see below) AUSTEL allowed Telstra to address the lockup problems and other faults in secret, five months after my arbitration was declared over. This meant that it was outside the legal arena of the arbitration process, and therefore denied me the legal right to challenge Telstra. Although the resource unit told the arbitrator and the ombudsman about the ongoing problems on 2 August 1996, they were never investigated during my arbitration. These ongoing problems held both my fax and free-call lines open after I hung up. Therefore: (1) when the line did not release, I was wrongly billed for call time I didn’t use and (2) with the line in lockup mode, customers could not ring in. This problem almost drove the new owner of my business to suicide in 2007 – more than 12 years after 16 October 1995. The regulator allowed Telstra to address these faults outside the arbitration process (see Main Evidence File No 23 Part 1 and File No 23 Part 2). Is this why Telstra wanted us locked down into a legal structured path, because they had friends within the government who would allow Telstra to address the more important documents in private?

Chapter Eight

An Honest Arbitrator?

Doesn’t a truly independent arbitrator investigate the personal integrity of a claimant and whether the version of events he or she presents is a truthful and valid account of such? Why would an arbitrator ignore letters he received from the government communications regulator referring to concerns raised in their correspondence to the arbitrator? In essence: if the claimant was correct in his assessment, then others would also be suffering similar problems. A qualified arbitrator should at least investigate one of the many billing problems logged by the claimant. For example, one of those faults, not only locked up service lines after every terminated call, but as stated, those calls were billed for even though they never connected.

It is clear a letter from the regulator to the arbitrator, dated 8 December 1994, indeed did raise those issues of concern (see Arbitrator File No/94). The reason why the arbitrator did not respond to that letter, or others similar, is because the arbitration resource unit concealed those letters from the arbitrator, as Arbitrator File No/53 shows. Has not one of the most undemocratic situations been allowed to take place? Citizens being forced to undergo an intense legalistic arbitration process that addresses the worst of the claimants’ evidence with the government communications regulator in secret, despite it being supposedly conducted according to the rule of law? What other situation could possibly be as corrupt as an Australian arbitration process conducted in this manner?

12 December 1994: Telstra submitted their defence of my claims, a defence that relied on reports known to be fundamentally flawed and evidence that had been fabricated. The main defence document appears correct to the casual, uninformed observer; but much of the information that the arbitrator accepted was, at best, inaccurate and, at worst, deliberately fabricated. The arbitrator, together with whoever helped him to prepare the technical findings in his award, knew they were making a determination based on information manufactured with the intent to pervert the course of justice.

Once again, this is fact, supported by many exhibits on absentjustice.com. In his arbitration witness statement, a technician swore under oath that his SVT tests at my premises had achieved a 98.8% success rate, even though AUSTEL had informed him that the tests were deficient (see Main Evidence File No/2) and therefore could not have reached the 98.8% call completion rate required by the government communications regulator. The arbitrator, being aware of these deficiencies, was duty bound to note in my award that Telstra had not been able to complete their mandatory testing process at my business.

This one fact alone – an invalid testing process – would have changed the whole outcome of my arbitration process.

Conspiracy to pervert the course of justice continues 

It is also important to note that False Witness Statement File No 17-A, a letter dated 16 January 1995, that I wrote to the arbitrator, was sent with a page from my Telstra telephone account attached, and two particular incoming calls highlighted, both to my 008/1800 number on 13 January 1995.  These two calls indicate that the first call recorded as starting at 11:50 am, could not have continued for the 9:49 seconds with the next call coming in at 11:57 seconds and lasting for 42 seconds. This means, of course, that I could not have answered the 42-second call at 11.57. This is the same example documented by Darren Kearney (see above) in his mini-report at False Witness Statement File No 17-b at Example 22, and it is also the actual account that I provided to the arbitrator at

False Witness Statement File No 17-C is a three page Telstra file note dated 16 January 1998, that was prepared by Telstra’s Lyn Chisholm and Phil Carless.  It discusses an investigation that was carried out at my holiday camp in Cape Bridgewater on 14 January 1998 (Thirty-Three Months) after my arbitration and which was the first time that any Telstra-organised testing took place after the end of my arbitration on 11 May 1995; for that matter, this was also the first time any interview took place after the end of my arbitration in relation to my claims of ongoing RVA, 008/1800 billing. Paragraphs 5 to 9 on the second page of this document discuss examples that I had provided to Telstra, which indicated where Telstra’s own Call System Analysis System (CCAS) data records showed that Telstra was still incorrectly charging my 008/1800 account for calls that were not answered, a fault that is clearly acknowledged in Paragraph 9, which states:

“I note that the examples given by Alan Smith at the meeting spanned the period of the Arbitration and after the conclusion of the Arbitration.”

In simple terms, here is a document, prepared by Telstra, thirty-three months after the official end of my arbitration, admitting that my evidence shows that the billing/008/RVA faults that should have been addressed before my arbitration concluded on 11 May 1995 had, instead, continued to occur long past that date.

False Witness Statement File No 17-D includes two separate letters, both dated 10 February 1999 and both from John Pinnock (the TIO and administrator of my arbitration), one addressed to Mr David Hawker MP, my local Member of Parliament, and the other addressed to Mark Dunston, Department of Communications Information Technology and the Arts, advising them both that the 008/1800 billing issues I had raised in my arbitration were still under investigation.  I have, however, still not been provided with the results of that investigation. What I can say with certainty, however, is that, if Telstra’s ‘Jokers’ had not lied under oath during my arbitration, the ongoing 008/1800/RVA/billing problems would have been addressed as part of that arbitration, way back in 1994/95.

I ask the reader to take into consideration the following statement made by the arbitration technical consultants which stated in their official completed report regarding these 008/RVA billing non-addressed faults (see Prologue page Chapter One which notes: 

“Continued reports of 008 faults up to the present. As the level of disruption to overall CBHC [Cape Bridgewater Holiday Camp] service is not clear, and fault causes have not been diagnosed, a reasonable expectation is that these faults would remain ‘open’.”

How can you have a completed arbitration process when the main arbitration claim (a recorded message wrongly telling the caller that the business they are calling is not connected to Telstra’s network? Why did DMR & Lane the official arbitration technical consultants NOT diagnose the fault causes for Telstra telling callers to my business that my number was not connected?

One does not have to be a Rhodes Scholar to be able to calculate the difference between callers to a business hearing a recorded message stating, “the number you are calling is not connected” over a 16-day period, and the immense damage caused to the same business by callers hearing this message over a number of years. These types of complaints, raised during my arbitration, were ignored and, in most cases, NEVER investigated.

Clearly, if just one of those SEVEN Telstra employees, or one of AUSTEL’s bureaucrats who helped to prepare AUSTEL’s adverse findings against Telstra (see Manipulating the Regulator), had come forward back then, and admitted to the arbitrator that the faults that had brought me to the arbitration were still affecting the viability of my business, the arbitrator could not possibly have come to the conclusions he recorded in his findings without including a provision regarding the ongoing problems.  My arbitration was, after all, covered by the Victorian Commercial Arbitration Act 1984, see link > [PDF] Commercial Arbitration Act 1984 which includes a clause that allows for such flow-on problems, if they could not be fully arbitrated on at the time.

False Statements Continue 

A sworn witness statement is supposed, to tell the truth. The statement made by Telstra’s most senior managers in charge of my 1992 commercial settlement (see Front Page Part Two 2-A) who we shall call Joker Four’ includes the statement:

“During the negotiations, Mr Smith provided various letters and documents in support of his position and made claims as to the extent of the financial loss which he had allegedly suffered to his business. Although my own opinion was that the claims Mr Smith was asserting against Telecom and the effect on his business were exaggerated it was determined to resolve all matters involving Mr Smith on the basis of the offer made and to be accepted by him.”

Yet, the following statement, taken out of FOI folios C04007 and C04008 and headed Telecom Secret, which this person had in her possession on the day of the settlement, 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. (See Front Page Part Two 2-B)

The handwritten statement on the bottom of folio C04008, which is signed by this person (I have masked the signature of ‘Joker Four, states:

“These are the pre prepared notes recorded at the time of settlement.”

What this person’s witness statement confirms, i.e., “These are the pre-prepared notes recorded at the time of settlement,” is that on the day of the settlement she had documents C04006, C04007 and C04008 in her possession. These three documents confirm my phone service suffered for several years and yet her witness statement states quite the opposite; she knowingly supplied the arbitrator false information on 12 December 1994.

What is so disturbing about this witness statement is, at points 3.3 (a) and 7.14 in his award on this particular matter, the arbitrator states in words to the effect that Telstra conducted this 1992 settlement in a proper and just manner. Yet, AUSTEL’s adverse finding on this same settlement at points 31 to 34, 47 and 183 and 202 to 206 condemns Telstra for the unethical manner in which it conducted that settlement process.

Had AUSTEL not concealed its adverse report, but rather told the relevant communications minister and the arbitrator the truth concerning its knowledge of that settlement then the arbitrator’s award would have been substantially higher than it was.

In other words, even though SEVEN false witness statements do not coincide with AUSTEL’s Adverse Findings the government who endorsed my arbitration has so far refused to order Telstra to withdraw those seven witness statements.

15 December 1994: Due to the many complaints raised by Alan and various other  COT Cases concerning the many deficiencies in Telstra’s SVT process AUSTEL appointed Dr Rumsewicz’s a prominent technical consultant in which he notes in his report Exhibit SVT 38-a that:

 [P5] It is important to note that these dropout rates refer only to switch related causes and do not take into account the possibility of transmission facility failure (for example, due to high error rates or cable cuts). Such factors would need to be considered in the final specification of call continuity grade of service targets.”

[p12]We believe that given the stated purpose of the Service Verification Tests supplied in the Telecom Australia Customer Fault Procedures document (000 8410 and that of the AUSTEL Cot Cases Report, the statistical test being applied to the collected data is inappropriate. We believe that the analysis of collected data should be expanded to include an examination of call failures broken down by originating exchange, time of day and type of failure. In the event that correlations in the failures are found, further investigations, as appropriate, should be undertaken”.

IMPORTANT ISSUE

The COT arbitrations were facilitated by the Government Regulator AUSTEL.  Before the COT arbitrations began AUSTEL had already confirmed in the AUSTEL Cot Cases Report (Telstra Falsified SVT Report – SVT 33-b) that when previously dealing with COT claimants, Telstra’s conduct had been “…less that which might be expected of a model corporate citizen.” Therefore, AUSTEL should never have allowed Telstra during their arbitration procedure as the defendants (under any circumstances), to provide Dr Rumsewicz with the raw SVT data before it had been scrutinised by either the TIO-appointed technical consultants and/or arbitrator.

PLEASE NOTE 1: , Garry Dawson is another of the COT Difficult Network Fault (DNF) customers used by Mr Rumsewicz to determine the validity of Telstra’s Service Verification Testing process, yet (Telstra Falsified SVT Report – SVT 39) admits that Telstra and Bell Canada International had to abandon the SVT process at Garry Dawson’s premises because of equipment failure. The same equipment failure at Alan’s business on 29 September 1994.

Mr Benjamin’s letter to Graham Schorer, was in response to Graham’s previous letter to Steve Black on 15th December 1994, (see Telstra Falsified SVT Report), which notes on page 2 that:

“…I was aware that Telecom/Bell Canada International had abandoned tests on Garry Dawson’s telephone service last Friday, 9 December 1994, and the official reason given was that this new equipment does not like Australian conditions.”

PLEASE NOTE 2: Mr Rumsewicz’s report is dated 15 December 1994. Telstra and Bell Canada International abandoned the Dawson Service Verification Tests six days earlier, on 9 December. In his letter to Graham Schorer refer (Telstra Falsified SVT Report), Telstra’s Ted Benjamin admits that the Dawson tests were abandoned but does not refer to any repeat testing being undertaken between the 9 December (when the first test was abandoned) and 15 (when Mr Rumsewicz completed his report).  The 10 and 11 December – the first two days after the abandonment of the Dawson SVT process – were a Saturday and a Sunday, not normal working days, so it would have been inappropriate to run the testing on those days.  These leaves only three days – the 12 to the 14 – for Telstra and Bell Canada to locate SVT equipment that was compatible, carry out a second round of testing, and collate all the testing information from complex data, in time to provide it to Mr Rumsewicz, so he could include the test results in his report, which was submitted on 15 December.

It seems quite clear that the Dawson SVT process, like the SVT process carried out at Alan’s business, was fundamentally flawed.

The disappearance of the 24 January 1995 letter was no magic trick. My official arbitration request to the arbitrator on 23 January 1995 was directly related to the impracticable Cape Bridgewater Bell Canada International Inc. tests (see Telstra’s Falsified BCI Report ‘masked identities’). I had 24 hours to respond and did, with my request the following day 24 January 1995, asking for a copy of the Cape Bridgewater/Bell Canada information to be provided from Telstra, through the arbitrator. On 28 June 1995, the TIO stated, regarding the first (23 January) letter, “Our file does not indicate that you took the matter any further.” (See Home Evidence File No 4)

CENTRALEDELLARTE-cantodinatale4[1]However, Home Evidence File No/5),shows that, when my letter of 24th January 1995, returned to me three months after my arbitration was concluded. The fax footprint on page 2 (24-01-1995 15:12   FROM CAPE BRIDGE HDAY CAMP TO 036148730) indicates it was received at the arbitrator’s fax machine (number 036148730). So why did the TIO advise me his office records did not show that I send this most relevant letter? Was this information actually provided to the arbitrator? Did he fall asleep on the job? ?

As has been shown below in Chapter Sixteen, had the arbitrator followed up on my requests for the Cape Bridgewater/Bell Canada test information from Telstra, and had Telstra supplied the information I was legally entitled to through the arbitration process, I could have proved, as I have now shown in our Telstra’s Falsified BCI Report ‘masked identities‘ Bell Canada International could not possibly have generated the alleged 13,590 tests calls through the Tekelec CCS7 monitoring (testing) system at the Bridgewater RCM exchange.

This system that Bell Canada and Telstra allege was installed at the Cape Bridgewater RCM exchange specifically to filter those incoming tests calls, did not exist at the Cape Bridgewater exchange at that time in 1993. Telstra technicians currently stationed at Portland can confirm that the nearest Telstra exchange that could facilitate a Tekelec CCS7 Monitoring System back in November 1993 was the Warrnambool exchange (a rural town in Victoria), which is 116 kilometres from Cape Bridgewater. A 29-year-veteran Telstra technician and renowned Telecommunications expert, Brian Hodge BTech. MBA (B.C. Telecommunications), in his report on 27 July 2007 (see Main Evidence File No 3) also confirmed that no such testing was ever undertaken at the Cape Bridgewater RCM exchange as recorded in the BCI report. Had the arbitrator accessed this vital one piece of evidence, it would have given credence to my claims that the phone and faxing problems were ongoing. However, the arbitrator found in favour of Telstra. He only investigated older anecdotal fault complaints and by doing so, allowed the ongoing problems to continue for more than a decade after my arbitration was declared over.

The government communications regulator, AUSTEL, in its April 1994 COT Cases Report, at point 1.19, states:

“An agreed standard of service against which Telecom’s performance may be effectively measured is being developed by Telecom in consultation with AUSTEL. Such standard together with a service quality verification test which can be applied to any case subject to settlement are essential.” 

Warwick Smith (administrator to the arbitrations) advised the 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 all arbitration technical issues, such as the arbitration service verification tests (SVTs), was conducted according to the government communications regulatory requirements. After all, what was the point of the government-endorsed arbitration process if the faults were not fixed as part of the process?

What then transpired would have been laughable, if the results didn’t have such serious consequences. When the SVT arbitration process commenced at the premises of various COT cases, the TIO-appointed arbitration technicians were not party to the SVT tests: the arbitrator and AUSTEL allowed Telstra (the defendant!) to perform the SVTs with NO umpire from the arbitration process to judge whether the SVT tests took place or were performed according to the mandatory SVT process. The defendant asked the arbitrator to trust it and that is exactly what the arbitrator did – even though the COT cases were in arbitration precisely because Telstra lied to the government, for years, concerning just how bad the copper-wire network really was. What the four COT claimants did not know then however was that although DMR Group Australia Pty Ltd was not available during the first eleven months of the COT arbitrations, even though the official arbitration agreement that all four claimants signed in April 1994 clearly stipulated that DMR Australia Group Australia Pty Ltd had been appointed as the arbitration independent technical consultants. It was not until five months after Telstra had, they claimed, carried out the arbitration SVT process at my business premises, on 29 September 1994, that DMR Group Canada was commissioned (on 9 March 1995) as the newly 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?

As has been shown in our Prologue Chapter One DMR (Canada) and Lanes Telecommunications (Australia) who agreed to assist DMR knowingly allowed their draft incomplete Cape Bridgewater Holiday Camp technical report to be used by Dr Hughes (arbitrator) as the final technical report even though I had been complaining that no investigation into Telstra’s SVT process had been conducted and my phone problems that had brought me to arbitration was still apparent. As our Prologue shows regardless of these pleas Dr Hughes allowed the still incomplete DMR & Lane report to be disguised as a completed document after having removed the wording the my billing claim documents had still not been investigated.

If you view both Arbitrator Part Two Chapters seven to nine and Telstra Falsified SVT Report ‘unmasked identities’, you will find that even though I demanded that the Arbitrator investigate Telstra’s falsified SVT process at my premises, he ignored my evidence.  When I exposed these deficiencies to the Government Regulator on 2 and 10 October, 1994, AUSTEL wrote to Telstra asking what they intended to do regarding these deficiencies? Telstra’s response was to sign under oath, on 12 December, 1994 a statement attesting to performing all the Government Communications Regulatory requirements and stating the SVT process at my premises had exceeded those requirements.

SVT – Deception at its worse 

2 February 1995: AUSTEL’s letter and the attached COT Cases AUSTEL third quarterly report to the Hon Michael Lee, Minister for Communications and the Arts states:

“Service Verification Tests have been completed for seven customers. Reports have been completed and forwarded to six of the customers, and the seventh report is in preparation. All six of the telephone services subjected to the Services Verification Tests have met or exceeded the requirements established “. (See Open Letter File No/23 and  Open Letter File No/4 File No/5 File No/6 File No/7

It is also extremely important to link how AUSTEL withheld their findings from the Hon Michael Lee, MP, on 2 February 1995, regarding the deficient SVT conducted at my business with the way they also withheld information from the same minister regarding adverse findings (see Open Letter File No/4 File No/5 File No/6 File No/7) concerning my business losses. The faults that brought me into arbitration on 13 April 1994 were still affecting my service.It is important readers consider this quarterly report to the minister in light of the service verification letter. AUSTEL had already written to Telstra’s arbitration liaison officer on 16 November 1994 (see Main Evidence File No/2) advising that the SVTs conducted at the Cape Bridgewater Holiday Camp were deficient. AUSTEL asked Telstra what they intended to do regarding this deficiency in the testing procedure.

15 February 1995: This letter of mine, to the arbitrator, again raises the SVT problems:

“My previous letters to you in January 22nd and 26th also confirmed we were still experiencing problems with our service lines.

“As you are aware the verification testing was prepared in consultation with Austel and was to form the basis for determining whether the CoT cases individual telephone service was operating satisfactory at the time of our arbitration. Our previous statutory declarations confirmed the testing was not conducted as they should have under the agreed testing process.” (See Arbitrator File No/101)

I did not receive any response to this letter, nor did I receive any response to other documents faxed to the arbitrator that day. My fax account records a fax transmission that included either one or two pages, faxed from my office to the arbitrator’s office. Given the ongoing transmission issues, I rang ahead and asked that the arbitrator confirm when my fax was received. There is no arbitration record of the arbitrator sending me a letter concerning any document faxed to him that day. Like most of the submission documents that I faxed or sent by mail, this one was also just not answered. This leaves a lingering doubt: did it just not arrive?

I also discussed these lost claim documents issues with various senators when I was at Parliament House in Canberra, before I gave evidence regarding the Interception Amendment Bill, and Senator Barney Cooney was particularly shocked at what he heard. When that amendment bill was being discussed in Parliament, the 15 February 1995 letter was just one of many that I had received no response to.

The SVT process that Dr Hughes ignored

Sadly, Dr Hughes (arbitrator) ignored the promises AUSTEL (the then government communications regulator) made one week before we signed our arbitration agreements on 21 April 1994. The arbitrator went against an official government document, which states, under the heading Settlement and agreement on standard of service:

“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 parties might sign off once a financial settlement has been finalised.”

Both my partner Cathy and I provided individual statutory declarations to Dr Hughes, plus I provided three separate letters between 2 October 1994 to 15 February 1995, advising Telstra’s arbitration Service Verification Tests (SVT), conducted on 29 September 1994 at my holiday camp, were aborted as neither the local exchange nor my customer access network could accommodate the SVT equipment. (See absentjustice.com/Introduction File No/4-A to 4-K contain copies of the statutory declarations Cathy and I made on 3 and 4 March 2004. Introduction File No/4-L  and File No/4-M show faxes sent from my office to Dr Hughes’ office and the list of arbitration documents Dr Hughes received. My two statutory declarations, faxed to Dr Hughes’ office, are not listed as being received, regardless of the fax account showing they were sent.

Introduction File No/4-A to 4-B confirm that even though AUSTEL acknowledged, in its correspondence to Telstra’s Peter Gamble (dated 11 October 1994) and Steve Black (dated 16 November 1994), the SVT tests at my business were not performed according the mandatory SVT process. AUSTEL demanded answers, but no follow up testing was conducted. Introduction File Nos/4-C to 4-D confirm the SVT process was set up between Telstra and the government regulator in order to give the assessors and/arbitrators a view of the efficiency of COT cases’ telephone services.

Despite my pleas, and my technical consultant George Close’s evidence showing my business was suffering with 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).

The concealed Cape Bridgewater investigation report, conducted during my FTSP, by AUSTEL between January and March 1994 (see Open Letter File No/7) and prior to arbitration, even states, at point 212, that

“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.”

The Call Charge Analysis System (CCAS) data in Introduction File Nos/4-F, dated 29 September 1994, shows the printout of the SVT tests generated through my three service lines 055 267267, 267230 and 267260. It is clear, to any telecommunications consultant, that the required 20 incoming test calls to each service line were not generated: not one of the mandatory 60 tests calls held the lines open for the required 120 seconds.

The attachments accompanying my reply to Telstra’s arbitration defence, which I provided to Dr Hughes in person and were never returned to me after my arbitration, confirm I challenged Telstra arbitration engineer Peter Gamble’s witness statement of 12 December 1994, in which he states he conducted the Cape Bridgewater Holiday Camp SVT testing and exceeded all of AUSTEL specifications. (See Telstra’s Falsified SVT ‘unmasked identities’) Dr Hughes’ award findings made NO comment on my challenge stating Mr Gamble perverted the course of justice when he submitted his report. Introduction File No/4-A and File No/4-B, the CCAS data (File No/4-F) and the falsified SVT information all confirm Mr Gamble mislead and deceived the arbitration process concerning the not-tested Cape Bridgewater Holiday Camp services.

The Senate Hansard (see Introduction File No/6) of 24 June 1997 confirms ex-Telstra employee, turned whistleblower, advised a Senate committee, under oath, that Peter Gamble was one of the two Telstra employees who told him the first five COT cases (and naming me as one of the five) had to be stopped at all cost from proving our claims.

The fact that Dr Hughes disallowed his own technical consultants the extra time they required to investigate my complaints of ongoing telephone problems, including my claims the SVT process was aborted, suggests Dr Hughes was clearly biased. My arbitration lawyers also thought the same (see Open Letter File No/51-C).

The Senate Hansard for 24 June 1997 (see Introduction File/No 3) shows Senator Schacht criticised Telstra for spending $18.8 million dollars, while it was government-owned, to defend 11 COT cases. He exclaimed this was a disgusting waste of taxpayers’ money, and implied something was unjust when the lawyers, arbitrators and mediators involved, all with reliable phone services, received that amount. In comparison, the COT cases received only $1.74 million, combined. My own arbitration forensic accountant valued my losses for the six-and-a-half- year period of my claim at more than the total figure the 11 COT cases received.

An arbitration letter, dated 21 September 1995, from Dr Hughes to the defendants (Telstra) shows he was working to a ‘terms of reference’ that was not included in the official arbitration agreement I and the other claimants signed.

It appears the arbitrators and mediators had an agenda worked out for them determining how much to pay out in damages, regardless of what the true value of the COT cases losses were. Chapters one to three in our Prologue page show the more lucrative of my two businesses – my over-40s singles-club losses – was never assessed. This evidence supports Senator Schacht’s Senate statement.

On 9 March 1995, after the Telstra Corporation had offered DMR (Australia), the arbitration technical consultants, an offer they could not possibly refuse and they pulled out of the COT arbitration process – leaving the COT cases stranded with no one in Australia left who they believed Telstra would not compromise. We four COT cases wanted to amend our claims and at the same time call for a halt until an honest technical broker could be found: impossible in the current situation with Telstra commanding power over most, if not all, of the technical consultants in Australia.

As a compromise, to avoid delaying the arbitration process, the TIO wrote to the four COT cases advising us Paul Howell of DMR Group Inc in Canada had agreed to be the principal technical advisor to the resource unit if we accepted Lane. David Read of Lane was ex-Telstra and therefore the COT cases should never have been placed in a position of having to accept Lane. We received many telephone calls and correspondence from the TIO, promising us that DMR (Canada) would be the principal consultants and assuring us our concerns would be looked after in this matter. Eventually, we accepted Lane as assistants to DMR,

It is quite obvious from the varying draft findings by Lane Telecommunications and the comparing of the DMR (Canada) and Lane Australia final report dated 30 April 1995, that Lane was secretly allowed to do all of the assessment to my arbitration claim material as well as conduct all site visits to the Portland and Cape Bridgewater telephone exchanges and my business premises. In effect, the TIO, those who took orders from him and the arbitrator, sold us out.

It is shown in Arbitrator Part-Two that  letter from the arbitration project manager dated 18 April 1995, advised the TIO, the arbitrator, and the TIO special counsel that:

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

The four COT claimants were never told about these forces at work nor were we warned that, under the noses of the TIO, his legal advisor and the arbitrator, these un-named forces were allowed to infiltrate and manipulate the arbitration process. When these three legal experts, namely Dr Gordon Hughes, Warwick Smith and Peter Bartlett, allowed this very important 18 April 1995 letter to be concealed from the four COT cases, they directly assisted those “forces at work” to carry out their intended disruption of the four COT cases’ arbitrations. Had John Rundell copied his letter to the four COT cases, as he should have, we four would have had a reasonable chance of approaching the Federal Government, as the endorser of the first four Fast Track Arbitration Procedures, and, using this letter as evidence, to have the process reviewed and amended.

On 26 September 1997, John Pinnock, the second-appointed TIO, alerted a Senate estimates committee that “most significantly, the arbitrator had no control over the process because it was conducted entirely outside of the ambit of the arbitration procedures”. Had the COT cases received John Rundell’s 18 April 1995 letter and also been informed our arbitrations were being conducted entirely outside of the ambit of arbitration procedures, because Dr Hughes had no control over the process, we would have had enough information to convince the endorser of our arbitrations (i.e., the Federal Government) to have the process abandoned.

The Senate was warned I received threats from Telstra because I assisted the Australian Federal Police. That Telstra carried out those threats should have been enough for the government to instruct the TIO that enough is enough. ((Senate Evidence File No 31)

The arbitration process was administered under the auspices of the Supreme Court of Victoria; it would have been appalled at the way Dr Hughes and Warwick Smith allowed Telstra to introduce these forces at work and manipulate the process.

Also in this 18 April 1995 letter the arbitration project manager states:

Any technical report prepared in draft by Lane will be signed off and appear on the letterhead of DMR Group Inc.” (See Arbitrator File No/17)

In 2002, I finally received a copy of this letter. It had a one-word, handwritten note in the margin, beside the instruction to imply the Canadian company had been involved in the investigation into my claims. Apparently, whoever wrote the note was startled at the skullduggery – the single word was “What?” The annotator recognised the technical resource unit should not have performed the investigation… but still allowed this cover-up to stand.

Worse if that is at all possible, in the 9 March 1995 letter from Warwick Smith (TIO) to me he noted:

“Messrs, Read and Souter will assist Mr, Paul; Howell of DMR Group In (Canada) in technical assessment under the Fast Track Arbitration Procedure. Mr Howell the principal technical advisor to the Resource nit will be in Australia within two weeks. The technical enquiries will commence on Thursday 16th March, 1995.

However, John Rundell, the arbitration project manager also advised the TIO that the director of the Canadian technical consultancy firm, appointed by the TIO as the Principal technical consultant and who was supposed to take charge of the technical side of the arbitration, arrived in Australia on 13 April 1995, not in March 1995 as promised by the TIO in his 9 March 1995 letter. Mr Rundell’s true colours were exposed when he stated any reports prepared by Lane (who we didn’t trust, as David Read was and ex Telstra employees ) would be signed off and appear on the letterhead of DMR Group Inc (the Canadian technical consultancy that we were sure we could trust).

In simple terms, all of the technical assessment of my claim had already been assessed by the time Paul Howell had arrived in Australia.

Back to the (Interception) Amendment Bill 1994.

21 March 1995: The Legal and Constitutional Reference Committee and Legislation Committee requested Graham Schorer, another COT member (name withheld) and I, to submit evidence confirming Telstra had intercepted our telephone conversations, at Parliament House, Committee Room 2S1, in Canberra. This submission by the COT cases formed part of the Telecommunications (Interception) Amendment Bill 1994. Just prior to me providing this evidence to the committee, I had a conversation with a Detective Superintendent (name deleted) of the AFP who was attending this meeting as an observer. I asked this AFP officer, if my provision of this interception evidence to the committee would interfere with the present AFP investigations into my interception issues. This AFP officer advised it would not. During this committee meeting, the visibly distraught [COT member] told of how he became aware that Telstra technicians had intercepted his telephone conversations while he worked as a consultant providing confidential, highly personal, counselling. My evidence and proof concerning interception is on record and confirms at least one Portland technician monitored and listened to my phone conversations.

30 March 1995: Page two of a report prepared by the arbitrator’s own resource unit (FHCA) for the TIO includes:

“Smith continued to ‘drip feed’  lodgement of his claim documents based on the fact that Telecom ‘drip fed’ his FOI requests (this culminated in a complaint to the Commonwealth Ombudsman and a subsequent FOI review by Telecom). …

On 13 December 1994, Telecom delivered its defence to the Arbitrator.

“Smith stated verbally to myself, that on 23 December 1994, he received 90 kilograms of FOI material. As his claim was ‘finalised’ he did not have the ability to examine these documents and add to his claim.” (See Arbitrator File No/45)

FHCA also states:

“Most of the allegations are unsubstantiated and many are not verified by statutory declaration. …

“The magnitude of faults complaints reported is unsubstantiated and appears overstated.”

Had AUSTEL not concealed their more adverse findings against Telstra, FHCA would not have considered that most of my allegations were unsubstantiated or appear overstated. These statements were entirely incorrect, as AUSTEL knew:

“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” (See Point 209, Open Letter File No/7). 

The FHCA statement that my “faults complaints reported is unsubstantiated and appears overstated” is one of the more sinister statements to come from them. My comprehensive log of fault complaints, which my claim advisors Garry Ellicott and Barry O’Sullivan (now Senator Barry O’Sullivan) attached to my principal submission, was supported by more than 70 separate testimonials from various clients and tradespeople, who had personally experienced the ongoing telephone and faxing problems still haunting my business. Had AUSTEL actually investigated some of these testimonials, as discussed in their 69-page covert report (refer Open Letter File No/4 File No/5 File No/6 File No/7,) they would have found these complaints more than substantiated. As we show in Part Two of the Arbitrator, TIO-appointed technical consultants advised the arbitrator on 30 April 1995 (refer Part Two ) that: “A comprehensive log of Mr Smith’s complaints does not appear to exist.”

FHCA concealed the comprehensive log of my fault complaints and prevented it from being investigated during my arbitration process; that act of deceit effectively sabotaged any chance I had of restructuring my business. This part of our story continues

Chapter Nine

A Comprehensive Log Of Fault Complaints

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

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

. . . .

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

In 2002, I finally received a copy of this letter. It had a one-word, handwritten note in the margin, beside the instruction to imply the Canadian company had been involved in the investigation into my claims. Apparently, whoever wrote the note was startled at the skullduggery – the single word was What followed by an question mark. Well we might all ask, What? The commenter recognised that the technical resource unit should not have performed the investigation… but still allowed this cover-up to stand.

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

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

Prior to Arbitration

The COT cases were fully aware of Telstra’s corporate power over most of the Technical Telecommunication Consultants in Australia.  Our research showed that DMR Australia were possibly the only organization within Australia (because of their affiliation with off shore telecommunication services) that would handle our matters independently.  We agreed to accept DMR Australia as the independent arbitration Technical Consultants.  For reasons unknown to the four COT Cases, at the last minute (ten months into the arbitration process), the COT Cases were informed in February 1995, that DMR Australia could not assist the Arbitrator in assessing the COT claims.

Lane Australia was then offered to the four COT Cases.  After our research, it was uncovered at least one of the Senior Partners were ex-Telstra and that Lane had worked on Government Projects – therefore, they were considered inappropriate. Under pressure from the TIO, the COT Cases accepted DMR Inc. Canada (only if they were the principal Technical Consultants).  Warwick Smith’s 9 March, 1995 letter to the COT Cases Introduction File No/1-A to 1-G shows we were promised DMR Inc. Canada would be the principal Consultant

All the official draft Lane technical report findings, shown in their report of 6 April 1995, were prepared seven days before Paul Howell of DMR Inc Canada came to Australia on 13 April 1995. The same findings were used in the final DMR and Lane formal report of 30 April 1995. Lane was the principal consultant and DMR Canada was brought to Australia to sign off the Lane report, which didn’t investigate any ongoing problems still affecting my business. The RVA (recorded message fault), advising customers they had dialled the wrong number, was never investigated.

Dr Hughes only addressed anecdotal historic fault complaints – not faults still affecting my business. Garry Ellicott, who prepared my arbitration claim, is an ex-senior Queensland police officer as well as an ex-National Crime Authority officer (with credits). Mr Ellicott reported his own RVA issues when trying to contact my business while preparing my arbitration claim. Letters from AUSTEL to Telstra, dated 4 October 1994, Telstra’s response, on 11 November 1994, and AUSTEL’s letter to Dr Hughes, on 8 December 1994, all concern Garry’s problems in trying to reach my business on 27 May 1994 (See Open letter File No/46-A to 46-l). Telstra’s letter to Dr Hughes, dated 16 December 1994 (Open letter File No/46-J to 46-l), asks how he wishes to address these ongoing problems. Resource unit member Sussan Hodgkinson sent a memo, on 2 August 1996, to Dr Hughes (copied to the TIO office) admitting to the existence of these letters (see Open letter File No/45-A to 45-I).

Five months after my arbitration was prematurely concluded, without having addressed any of my ongoing billing claim documents, the government communications regulator, AUSTEL, wrote to Telstra (copied to John Pinnock), on 2 October 1995, advising the Cape Bridgewater Holiday Camp billing issues remained unaddressed (see Open letter File No/46-K). On 16 October 1995, AUSTEL allowed Telstra to address the RVA faults, which, in turn, became billing problems, that Garry Ellicott originally raised on 27 May 1994. Allowing Telstra to address these arbitration issues, outside of the arbitration, denied both Garry and I the legal right to challenge Telstra’s response. If this is not democracy gone horribly wrong then what is?

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

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

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

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

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

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

Summary of document (AS 160) to (AS 165):

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

So who provided the arbitrator with the technical information he used in determining my award? Why did he only address anecdotal or historic phone problems, rather than the ongoing faults provided by my claim advisors Garry Ellicott and Barry O’Sullivan (now Senator Barry O’Sullivan) to the arbitrator in their comprehensive log of my fault complaints?

Two Conflicting Reports, Both Dated 30 April 1995

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

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

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

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

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

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

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

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

“A comprehensive log of Mr Smith’s complaints does not appear to exist.”

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

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

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

old_book_2-t2[1]

The arbitrator states, in his 12 May 1995 letter: “…we did not allow sufficient time in the Arbitration Agreement for inevitable delays associated with the production of documents, obtaining further particulars and the preparation of technical reports” (See Open Letter File No 55-A)

Could the loss of my comprehensive log of my fault complaints have anything to do with the arbitrator deciding not to proceed with my matters any further? Was the arbitrator aware of the existence of the log? The arbitrator allowed the next three claimants between 13 and 36 months longer than he had allowed me, in which to finalise their claims.

This failure to supply the technical resource unit with a comprehensive log of my fault complaints severely disadvantaged my whole claim. I approached my claim advisors, Garry Ellicott and Barry O’Sullivan, during my designated arbitration appeal period and asked them to itemise their cost for sending so much material from Queensland to the arbitrator in Victoria, but they were unable to do so. I had hoped an itemised breakdown of those costs, this revision of the facts, could have provide some proof as to what documents were freighted from Queensland to the arbitrator’s Melbourne office.

Although today, we now have proof that such a comprehensive list of my fault complaints was sent by my claim advisors – it was later provided to me by the arbitrator’s office in August 1995 – the special appeal period had well and truly expired.

Consider:

  1. Why did the TIO-appointed arbitration technical unit state in their 30 April 1995 report that “A comprehensive log of Mr Smith’s complaints does not appear to exist” when my claim advisors Garry Ellicott and Barry O’Sullivan submitted a full chronology numbered as evident on pages 11, 12 and 22 in their reply to Telstra’s Interrogatories (see Arbitrator File No/91).
  2. Why did the TIO arbitration resource unit advise the new TIO on 15 November 1995, six months after my arbitration was over, that the billing issues I raised were not addressed in arbitration because they were not submitted until April 1995 (see Arbitrator File No/34A)? Yet, their correspondence to the arbitrator (and copied to the TIO on 2 August 1996) show these billing issues discussed by the resource unit in December 1994 (see Arbitrator File No/53).
  3. Why did the research unit arbitration project manager, in this 15 November 1995 letter, also state: “As no further progress was likely to be made on these matters, the formal version of the Technical Evaluation Report did not leave the billing issues open.”? Yet this letter proves beyond all doubt these ongoing unaddressed billing faults were left “open”.

Canadian and Australian consultancy report 

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

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

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

Neither the arbitrator, the TIO, nor the arbitration project manager have ever explained why the formal technical report supplied to the arbitrator and then copied to me was not signed off, or why the covering letter, allegedly written by this Canadian technical consultancy firm, was not produced until 15 months after my arbitration was declared. Unbeknown to the TIO, the Canadian consultant had already spoken directly to me, on 31 May 1995, (see my partner’s diary note, Arbitrator File No/26) advising that he didn’t sign off on the report because it was NOT FINISHED at the time it was submitted to the arbitrator, myself and Telstra for their official comments. My statutory declaration dated 23 February 2006 to Liberal Government Department of Communications, Information, Technology and the Arts (DCITA) assessors in February 2006 advised them of this phone call. It also advised them issues surrounding the two conflicting technical reports, which we have discussed above and below.

The Book Of Shadows[1]

How can two identical technical reports with the same twenty-three technical assessments, both dated 30 April 1995 and both apparently prepared by the same consultants, have one version noting that the “… case remains open, and we shall attempt to resolve it in the next few weeks” and the other without any mention of it still being open and needing weeks to complete?

There are two conflicting lists of the technical and defence arbitration material received by the TIO-appointed technical consultants to assess during my arbitration (see Arbitrator File No/31 & 32). The lists are almost identical, except that the arbitrator’s version does NOT refer to the billing claim documents that my claim advisors sent from Queensland. Page 27 from the arbitrator’s version lists less than a third of the material my claim advisors Garry Ellicott and Barry O’Sullivan submitted to the arbitrator.

Arbitrator File No/32 is page 40 from the final version of the report that I received during my arbitration – it includes 14 more sets of claim documents than what is on the list contained in Arbitrator File No/31.

Garry Ellicott and the Hon Barry O’Sullivan

I am sure, even after the misunderstanding I had with my two arbitration claim advisors, Garry Ellicott and Barry O’Sullivan, that these two fine gentlemen will now understand why it was so important for me to have an itemised record of the various costs involved in sending documents from Queensland to Victoria, throughout my arbitration.

What would have happened in August 1995 if I had been able to prove, not only the actual existence of a detailed, chronological list of all the ongoing telephone fault complaints that I had lodged with Telstra, but also the exact date that it was mailed to the arbitrator! That would have meant that all my claim documents would have to be examined and investigated before the end of my arbitration. What would the arbitration project manager have done then?

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

Important Comparisons

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

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

 Arbitrator File No/32 is a list of claim documents numbered SM2, SM16, SM 17, SM20, SM21, SM45, SM46, SM47, SM48, SM49, SM50 and SM53. These documents are missing from Files No 22 and 31. This document illustrates Barry and Garry’s numbering system and shows that, on my behalf, they sent the arbitrator another seven folders that included documents numbered 1-200, 200-400, 400-600, 600-800, 800-1,000, 1,0001289 and 2,0012,158, i.e. a total of 2,158 documents, further to the other documents labelled as SM.

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

Most of these 3000 documents including the supporting information explaining the relevance of these documents are AXE Ericsson and SVT / BCI faulty Ericsson testing equipment which Telstra had knowingly used prior to and during the COT arbitrations. Combine these 3000 Ericsson related claim documents and the fact that David Reid (Lane) who secretly prepared the 7 April 1995 technical findings that 6-4-95 Lane Draft Report (4-A)  shows both of 30 April 1995 findings are based on the 6 April 1995 draft Lane. It is clear from the 6-4-95 Lane Draft Report (4-A) David Reid (Labe) did not value any of my 3000 Ericsson data.

Are these 3,000 not assessed Ericsson claim documents by David Reid (Lane Telecommunications) linked to the purchase of Lane by Ericsson during the COT arbitrations?

An Exercise in Logic

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

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

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

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

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

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

None of the important claim documents in those 14 folders were assessed or defended by Telstra in Australia, or assessed by DMR Inc. in Canada. As noted above, my sincere hope now is that the senator will now see why I was so angry when neither he nor his colleague seemed able to provide records to show the arbitrator that the arbitration technical unit’s comment that: “A comprehensive log of Mr Smith’s complaints does not appear to exist” was actually incorrect.

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

The Deception Continues

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It seems, from the many inaccuracies in the conflicting technical reports that the arbitrator based his findings on, that a second and possibly even a third party was involved in preparing these reports and it certainly seems that the draft and final versions of the award were prepared by someone who heavily favoured the defence. The hand-written notes in the draft version indicate that the findings did not come from the arbitrator. So, who was the mystery person (or persons) who supported Telstra and provided these inaccurate pieces of information to the arbitrator? Who was really in charge of the arbitrator?

Upon reading the arbitrator pages and attachments, one has to ask why. Why would an arbitrator, a lawyer who is internationally recognised as a specialist in his field, two TIO’s (also highly respected in their chosen professions) and the arbitration project manager, allow all that has been revealed here on absentjustice.com to have happened?

And to think that this man still advises the Australian government on legal matters! No wonder the government will not properly or honestly investigate my matters.

Chapter Ten

It is well documented that I continued to complain about phone and fax problems throughout and after my arbitration, including complaints to local technicians regarding the phone alarm system and associated wiring installed by Telstra during ELMI monitoring of my service lines in 1991-1992.

During a site visit on 6 April 1995, the arbitration technical consultant, Telstra’s chief engineer and I inspected the exchanges at Cape Bridgewater and Portland and met with the local technician (who denied a local farm agent also had problems with his phone, although the FOI documents exposed the agent’s complaint records).

With the technical team in Cape Bridgewater, I asked the TIO-appointed arbitration technical consultant and Telstra’s engineer to look at the wiring issues and some of the evidence I had proving there was incorrect billing on all my phone lines. The arbitration technical consultant made it quite clear that the arbitrator had ordered him not to assess any new evidence or claim material during his site visits. (The arbitrator later confirmed these orders in a 17 February 1996 letter to the president of the Institute of Arbitrators.)

Naturally, I was irate because most of this late received FOI documentation on 23 December 1994 and early 1995, had originally been requested in December 1993. This was a complete turn-around by the arbitrator who had assured me that if I discovered any new information among late received FOI documents, that information could be presented to the technical resource unit when they came to the camp. I had burned the midnight oil night after night to have this evidence prepared before the technical team arrived and it was clear that all this new information would further support my allegations of ongoing problems. I was so angry. I managed to have the arbitration technical consultant look at one document while the Telstra official was still there. This was a copy of part of my 1800 call account. How, I asked, could I be charged for a 9.49 minute call on 13 January 1995 at 11.50 am, and then for a 42 second call at 11.57 am? It is certainly not possible to have two calls overlapping on the same line at the same time.

Incorrect charging was running rampant through Telstra’s 008/1800 network, just as my telephone account showed. Neither Telstra’s engineer or the TIO consultant were prepared to comment on this evidence at the time, although I was assured that the matter would be taken up and addressed as part of the arbitration.

Both these two left shortly after this. Of particular note, they travelled to and from my premises together, jeopardising ethical transparency. What private conversations took place between these two? The answer to that question is probably only known to the participants themselves (and perhaps the arbitrator?).

By the end of April 1995 (see below), the resource units were now preparing their reports and I had a gut feeling that the COT members had been deceived. I felt as if I had been crucified by the very person who was supposed to be delivering justice, the arbitrator. He had not once investigated my questions regarding why my fax and phones continued to create so many problems. By this time, Telstra’s SVT had given the Cape Bridgewater network the green light even though AUSTEL had condemned the testing as grossly deficient (refer Main Evidence File No/2). I was now convinced that the arbitration was just a sham, instigated with the single aim of ‘shutting me up’ by providing a finding that favoured Telstra. I was soon to find out how right I was.

Chapter Eleven

Pressure Applied To Arbitrator

28 April 1995: The TIO special counsel wrote to the TIO noting:

“Attached is a draft letter to [arbitrator]. It is in reasonably harsh terms.

“Could you please consider whether a letter in this form or an amended form, should go to [arbitrator]. (See Arbitrator File No/47)

The draft letter to the arbitrator states:

“However, I understand you are to present a paper in Greece in mid May.

“I would expect that the Award would be delivered prior to your departure.

“It would be unacceptable to contemplate the delivery of the Award being delayed until after your return.”

And accordingly, the arbitrator handed down his award the day before he left for Greece, despite the two arbitration technical consultants notifying him, on 30 April 1995, that their technical report was weeks away from being completed.

What needs to be clarified is why the TIO special counsel would make a statement in a draft letter advising the arbitrator that “It would be unacceptable to contemplate the delivery of the Award being delayed until after your return,” especially considering the technical consultant’s report was incomplete. Who had the power to direct the arbitrator?

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It is clear from the statement made by the TIO during a Senate Estimates hearing on 26 September 1997 (see Arbitrator File No/11) that: “…the arbitrator had no control over that process because it was a process conducted entirely outside the ambit of the arbitration procedures”. The statement made by the TIO special counsel in his 28 April 1995 draft letter clearly suggests that the arbitrator took orders from others as to when he could or could not complete his findings. For the TIO special counsel to be able to dictate to the arbitrator (through the TIO) as to when the arbitrator can bring down his award is a very serious matter indeed, particularly in light of the incomplete report and ongoing investigations into billing faults.

Even though the arbitration technical consultants’ 30 April 1995 draft report included a formal request for the arbitrator to allow them extra weeks to investigate and address my ongoing billing claims, this was not granted. We can say this with certainty because the request for extra weeks was removed from the draft report, and the arbitrator then sent  an amended report without the request for extra time. This was presented as the final, official version, as is stated above.

5 May 1995: The arbitrator wrote to me, noting:

“I refer to your telephone message of 4 May and your facsimiles of 4 and 5 May 1995 and advise I do not consider grounds exist for the introduction of new evidence or the convening of a hearing at this stage.”

And he reiterated his previous instructions:

any comments regarding the factual content of the Resource Unit reports must be received … by 5.00 p.m. on Tuesday 9 May 1995″. (see Arbitrator File No/48)

The phonecall and faxes referred to by the arbitrator relate to my attempts to submit two small reports that I had compiled from 24,000 FOI documents that Telstra had been delinquent in supplying. I had informed the arbitrator that both my technical consultant (George Close) and my main claim advisor (Garry Ellicott) were emphatic that a comprehensive log of my fault complaints had been sent from Queensland to his office in June 1994.

The arbitrator did not acknowledge the existence of such a document or even attempt to investigate to where it could have vanished. Furthermore, he refused to allow the submission of those two reports; as his letter states, he considered them “new evidence”. A number of events followed, which all relate back to the arbitrator’s refusal to discuss the ramifications of the missing log of my fault complaints. This refusal has serious consequences for my case and its outcomes.

Just seven days after he refused my request to search for the missing log, the arbitrator informed the TIO that these types of document issues were contributing to the arbitration rules being unworkable. Despite that fact, he still used those ‘faulty’ rules all the way through my arbitration process (see Open Letter File No 55-A). The next three complainants (who had all signed their agreements on the same day as I signed mine, in April 1994) were allowed at least 13 months longer than I had been, to amend their claims and convene a hearing to discuss the same issues that I had asked to discuss.

Lastly, the arbitrator also ignored the fact that Telstra had deliberately withheld those 24,000 documents until it was too late for me to use then in my arbitration process. This was their way of punishing me for helping the Australian Federal Police with their investigations. If the arbitrator had allowed the technical consultants enough time to search for the missing list of fault complaints and to assess my claims of serious billing faults properly (see  Arbitrator File/No 29 & 30), it is possible the technical consultants and I would have uncovered the causes of the ongoing telephone problems. If complete technical and financial reports had been provided to us during the arbitration process, instead of incomplete versions by the TIO or arbitrator (or if the 12 May 1995 letter discussed below had been provided during my designated appeal period), the outcome would have been more in the interests of natural justice. These unsolved problems not only finally forced me to sell my business, but later contributed to the new owners being declared bankrupt in August 2009. A lot of unnecessary suffering for my family and others could have been avoided.

It is most important to note that the ‘Rule of Law’ has NO time constraints. So why was the TIO special counsel trying to force a time constraint against the arbitrator correctly and lawfully allowing me reasonable time in which to prepare my case? He allowed the other three complaints between 13 months and three years to prepare their cases.

Arbitration Agreement Not Credible

Although exhibit  Arbitrator File No/34 A  and Open Letter File No 55-A is discussed in both the Senate and Hacking – Julian Assange? pages it is again necessary to link it with the following segment.

I was entitled to receive this well-concealed letter during my designated appeal period, but I did not receive a copy until 2002 (and outside the statute of limitation period). The arbitrator wrote to the TIO on 12 May 1995 stating:

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

In the same letter, the arbitrator made the following comments, which would benefit from being explained by the TIO’s office

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

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

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

In the arbitrators’ draft award (inadvertently provided to me by the TIO office in 2002) point 2.23 states:

“Although the time taken for completion of the arbitration may have been longer than initially anticipated, I hold neither party and no person responsible. Indeed, I consider the matter has proceeded expeditiously in all the circumstances. Both parties have co-operated fully.”

What has not been revealed to-date is, ‘who hand wrote the statement at the side column at point 2.23: Do we really want to say this?

No point 2.23 is in the final award!

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The failure of the arbitrator to grant the technical units the extra weeks they had officially requested to investigate and fully assess my ongoing telephone billing claim documents is addressed elsewhere in absentjustice.com, as well as in my manuscript Ring for Justice. If completed technical and financial reports been provided to us during the arbitration process, instead of incomplete versions by the TIO or arbitrator (or if the 12 May 1995 letter had been provided during my designated appeal period), the outcome would have been more in the interests of natural justice and a lot of unnecessary suffering for my family and others  could have been avoided.

In this letter, the arbitrator’s statement that: “as far as I could observe, both Telecom and Smith co-operated in the Smith arbitration”, is particularly important because it blatantly contradicts two other important pieces of information directly related to the running of the arbitration.

Firstly, it contradicts the resource unit’s reference to the “forces at work they claimed were destroying the very fabric of this legal arbitration process. Secondly, it contradicts the information I passed on to the arbitrator, the TIO’s special counsel and the TIO – in November and December 1994 and in January and March 1995 – in relation to how Telstra had carried through their threat and withheld documents I had requested through FOI. Because I had assisted the AFP with their investigations into Telstra’s unauthorised interception of my telephone conversations, this was the consequence. So what would have prompted the arbitrator’s statement about witnessing co-operation?

Why didn’t the arbitrator and the TIO contact the Victoria Police about this crime? Or more appropriately, why didn’t they report the matter to the AFP who were partly, although quite innocently, to blame , because I had helped them with their investigations? Who actually wrote the arbitrator’s final award, because it certainly does not match the draft version that included a question from an unidentified person asking what was allowed to be included and what should not be included in the final award? Had the arbitrator also been threatened?

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It is difficult enough dealing with an arbitrator pulling one way by deliberating on my claim and using an arbitration agreement that allowed the process to be conducted outside the ambit of the arbitration procedures. But to have the TIO pulling the other way, by concealing the arbitrator’s letter from me during my designated arbitration appeal period, was really the last straw. This prevented me from putting these criminal acts out of my mind: the TIO and the arbitrator may just as well as had us all hung, drawn and quartered for good measure.

This same arbitrator eventually moved on to advise the federal government on a number of legal issues, including telecommunications matters.

And, a few months after the TIO concealed this vital letter from me, he sat on the front bench, advising the federal government in the newly elected John Howard Liberal/National Coalition government, even though less than two and a half years earlier, while wearing his ombudsman hat, he was providing confidential Coalition party room COT case information to Telstra executives.

When people in government choose to act unethically, as happened in the COT cases, and those with power completely ignore or trample the rights of ordinary citizens, then lives are ruined.

A transcript prepared by Telstra’s arbitration lawyers, records both the future arbitrator and the TIO’s special counsel as present when Telstra’s questionable conduct towards the COTs was first raised at our pre-arbitration hearing on 17 February 1994. In fact, that transcription records the TIO’s counsel saying:

“… if evidence indicated illegal tapping and unfair means had been used, then there may be some “moral” duty on the party to go forward . 

And, “That there may be a duty to disclose to the police criminal matters”. (See Arbitrator File No/35)

I provided a CD of evidence to the office of the Hon Tony Abbott, then-prime minister of Australia; the Hon Malcolm Turnbull, Minister for Communications; the Hon Barnaby Joyce, Agriculture Minister; The Hon Dan Tehan (my local Federal Member of Parliament) Senators Scott Ryan and Barry O’Sullivan; and the AFP, in 2014. The CD shows that the office of the arbitrator was provided with conclusive proof that Telstra had not only destroyed relevant information on my requested documents, but that they had also tampered with my TF200 telephone after it left my business and created a report that was even in conflict with their own technicians’ findings.

So why weren’t the State Police and/or the AFP contacted, as the pre-arbitration hearing on 17 February 1994 advised the claimants they would be, if illegal tapping and unfair means had been used against the COT

If the handwriting in this draft award is the arbitrator’s, then why is he asking permission what he can or cannot not say in his 11 May, 1995 award? If this handwriting belongs to someone other than the arbitrator, then why is that person querying what can or cannot be exposed in the arbitrator’s award?

To further prove how undemocratic our arbitrations were conducted, we only have to view Dr Hughes’ letter of 12 May 1995 to Warwick Smith, the day after Dr Hughes handed down his award. In this letter, Dr Hughes condemns the arbitration agreement (set of rules) as not credible, after using it anyway (see Absentjustice Introduction File No 2-E). Not only did I not get a copy of this letter during my designated appeal period, I likewise did not get a copy of Warwick Smith’s letter to Telstra’s Steve Black, dated 24 May 1995, which advises:

“Other matters relating to liability will be dealt with separately. Dr Hughes is in his office from 30 May 1995…

“I have to hand your letter of 19 May 1995 to AUSTEL’s Carrier Monitoring Unit which refers to the Smith decision and the reconciliation of the Arbitrator’s comments on Telstra’s legal liability.” (See Absentjustice Introduction File No 2-F)

The 19 May letter, showing the arbitrator’s official findings on Telstra’s legal liability to me as the claimant was concealed from me during my arbitration, is bad enough, but to also conceal both this letter and the 12 May 1995 letter, totally condemning the arbitration agreement, is beyond belief.

Senator Ron Boswell’s discussion in the Senate, on 29 November 1994, concerns my document issues: issues that Dr. Hughes knowingly mislead Laurie James, president of the Institute of Arbitrators Australia, about in his correspondence of February 1996 (see Prologue Evidence File No/8-E).

Why should high-profile lawyers have a different set of rules applied to them, with any investigation into their alleged misconduct put on hold for more than 30 years? Whether Mr Murphy was guilty or innocent, this issue should have been put to rest years ago. The claims made by the COT Cases, their legal advisors as well as the six following Senators (see ) should have been investigated two decades ago. Why should the legal fraternity in Australia and Telstra’s executives who allowed the COT crimes to flourish be covered up as they have been to the detriment of victims who suffered badly because of those crimes?

Continued from Absent Justice Part (2)

Chapter Twelve

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Who Really Prepared the Arbitrator’s Award

If the TIO’s office had nothing to hide concerning these handwritten statements why didn’t they have this handwriting analysed? At least we would have known who was the second or third arbitrator telling the first arbitrator what he could or could not put in his award.

The fact that Commonwealth Government records, dated 20 January 1994, show that the first four COT arbitration processes were endorsed by the federal government should be an incentive for the current government to investigate my claims on absentjustice.com.

As shown above, on page five of the Commercial Arbitration Act 1984, under Part 11 – Appointment of Arbitrators and Umpires – it clearly states:

(6) Presumption of single arbitrator

An arbitration agreement shall be taken to provide for the appointment of a single arbitrator unless – (a)  the agreement otherwise provides; or (b)  the parties otherwise agree in writing.

The Fast Track Arbitration Procedure agreement I signed mentions only one arbitrator. There is no written agreement in existence, that I’ve seen, which allows a second arbitrator to determine what the first arbitrator can or cannot say in the arbitrator’s final award.

My arbitration was finalised on 11 May 1995. If I thought I knew what stress was before this, I was certainly learning more now. The arbitrator’s award was delivered to me by taxi from Melbourne and the effect was shattering but I had to keep going; I had customers to think about. Six days after receiving the report however, nature took over. In front of a group of campers, some 60 children and staff, I collapsed, twitching on the floor. An ambulance delivered me to hospital and, at first, it was suspected that I had suffered a heart attack. A five-day stay in hospital followed and the final diagnosis was — stress.

On the first day home after the hospital stay, I received a call from the FHCA project manager. He had rung, he said, to let me know that he was aware that things hadn’t turned out quite as I had hoped but he believed I now had to put it all behind me, get on with my life and show them what I could do. I am still wondering who ‘them’ was.

As if it isn’t bad enough that the so-called independent arbitrator forced the so-called independent financial assessors to ‘doctor’ their report, it is even more disappointing that the project manager for the financial assessors waited until after my appeal time had elapsed before speaking out. And, why did he ring then anyway? I had only ever spoken to him once through this whole process and that was back on 11 October 1994, during the oral hearing. This phone call seemed totally out of character; or had he heard about my collapse and had an attack of conscience?

Even stranger, during this conversation, the project manager informed me that the executive manager of my case with DMR was also going to ring me; and so he did.

The Canadian DMR manager said something like: I was sorry to hear you had been ill and I hope you get better soon. This has been the worst process I have ever been a party to. This sort of situation would never have happened in North America.

I was so stunned at his statement This sort of situation would never have happened in North America that I later forwarded a signed statutory declaration, recording my memory of this conversation, to various government ministers. I also wrote and faxed DMR in Canada but, three years later, I am still waiting for a response. I have not received any sort of explanation for the would never have happened in North America comment. Could it be that in Canada, DMR Group Canada would not have been pushed so that they didn’t correctly address a legal claim? Who knows?

What we do know however is the arbitrator and the TIO (appointed to administer the arbitrations) decided to let the defendants draft their own agreement so that the process could be run the way the defendants wanted it to run. How that decision then affected the claimants is addressed elsewhere on absentjustice.com but meanwhile, as we have trawled through this cesspool of corruption, collusion and deceit it has become even clearer that many of the powerful Australians who were involved in the COT saga are, even now, in 2015, still advising the current government on these very same issues.

Back to 1995:

Also on 12 May 1995, the arbitrator wrote to Graham Schorer, copied to the TIO special counsel and the other two COT Cases stating:

“I am departing today for two weeks leave. When I return, I intend convening a directions hearing in order to determine whether the parties wish this arbitration to proceed. I would be interested to receive any comments from you (or Telecom) in the meantime”.

As I prepared absentjustice.com and the third draft version of Ring for Justice, I discovered that my arbitrator had previously been Graham Schorer’s business advisor on legal matters and had been on his legal team in his federal court action against Telstra (between 1990 and 1992) on the very same issues he was now in arbitration with, in 1994. As soon as this information came to light, I knew I had no alternative but to confront Graham and ask why he had not revealed this before the COT arbitrations began and why neither the arbitrator, TIO nor the defendants (Telstra) had revealed it either.

Conflict of Interest / Discrimination

Conflict of interest issues are complex matters, and what people have subconsciously done or not done, is the reason why this particular arbitrator should not have been appointed the arbitrator on the four COT cases; he had been both Graham’s business advisor as well as his federal court advisor.

02[1]Although it is unlikely that anyone will ever know if the prior knowledge the arbitrator had, regarding the telecommunication problems Graham had suffered over many years, influenced his judgment as an arbitrator. He did grant Graham 36 months more than he granted me to submit his claim and answer Telstra’s defence of those claims. We do know, however, that when the arbitrator decided not to declare his clear conflict of interest in relation to Graham’s earlier Telstra court action, he compromised all the COT arbitrations, before the process even began.

It may be considered fair to say that the arbitrator began the COT arbitrations with good intentions when he accepted the position and that the extra assistance he provided to Graham only came about because he knew how much Graham’s business had suffered in the past because of the Telstra issues. But, this means that his behavior was a matter of discrimination as well as a conflict of interest.

The Second TIO Takes Over

24 May 1995: Two weeks after the arbitrator had deliberated on my claim using an arbitration agreement he advised the TIO was not a credible document, a further alarming situation happened. Telstra’s arbitration liaison officer (who was also a TIO council member) released 745 FOI documents under the heading Your FOI Request of May 1994. He stated,

“Further documents have recently come to light that fall within your FOI request of 1994. 

“Copies of these documents are enclosed. At this time a table has not been prepared giving decisions in relation to these documents as it was considered by Telecom more important you receive copies of the documents now.” (See Arbitrator File No/54)

Three of these FOI documents, folio N00005, N00006 and N00037 (also discussed in Telstra’s Falsified BCI Report ‘masked identities‘ confirm that Telstra already knew the Cape Bridgewater/BCI tests were fundamentally flawed before they submitted their defence. Here was a TIO council member wearing his Telstra hat releasing this material that I had originally requested 12 months earlier in May 1994. Since this Telstra executive was a member of the TIO council as well as Telstra’s main arbitration liaison officer and distributor of Telstra FOI documents, wasn’t it his duty to ensure that claimants received requested documents as quickly as possible during this TIO-administered arbitration? The late release of these important FOI documents is directly relevant to the following letters of 20, 22 and 28 June 1995:

20 June 1995: My letter to the arbitrator (six weeks after my arbitration) notes:

“I knew all along that the Bell Canada Testing was flawed. Had I received this type of information as a result of my FOI requests, in the beginning of the procedure, my expenses would have been minimal.

“However, the question must be asked again: Did you request this Bell Canada data through the Chair of the Arbitration Procedure?” (See Home-Page File No/29)

this type of information as a result of my FOI requests, in the beginning of the procedure, my expenses would have been minimal.

“However, the question must be asked again: Did you request this Bell Canada data through the Chair of the Arbitration Procedure?” (SeeHome-Page File No/29)

Chapter Thirteen

Believe it or not

It gets worse: On 23 May 1995, after my arbitration was declared officially over, one of the TIO council members, who was also Telstra’s main arbitration defence liaison officer, provided me with conclusive proof, while wearing his Telstra hat, that Telstra admitted to BCI Canada that its Cape Bridgewater BCI tests were impracticable. This TIO council member waited until after Dr Hughes brought down his award before supplying that information, 12 months after I had officially requested it.

As shown in Chapter Thirteen/Arbitrator Part Three, the TIO, Dr Hughes and the TIO special counsel were alarmed at what I had uncovered, and that Telstra had waited 12 months before supplying the BCI evidence. However, instead of demanding answers from Telstra, they (including Telstra) all agreed not to address this very serious matter, so as not to “open the can of worms” (the TIO’s wording, not mine).

A Can Of Worms

My letter to the arbitrator on 20 June 1995 regarding the impracticable Bell Canada International tests and the Cape Bridgewater tests, and the arbitrators’ subsequent response of 21 June 1995, were discussed in a 22 June 1995 fax from the TIO’s office to the TIO special counsel (who was later exempted from all liability for his part in my arbitration).

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“Could you please have a look at Hughes [the arbitrator’s] letter to John [the TIO] dated 21 June 95 re Alan Smith.

“John wants to discuss it on Monday, and what the approach should be re parties seeking to revisit issues post Arb’n [arbitration]. His position is not to open the can of worms, but would like to discuss strategy with you.”

This ‘can of worms’ relates to the Cape Bridgewater/BCI information (see Telstra’s Falsified BCI Report ‘masked identities‘) that I finally received on 23 May 1995 (two weeks after the arbitrator had deliberated on my claim) which confirmed had Telstra not withheld the 24,000 FOI documents and Dr Hughes had allowed me to submit them as an amendment to my reply to Telstra’s defence I would have been able to prove beyond all doubt my telephone problems were still ongoing on the even Dr Hughes brought down his award. The fact that Dr Hughes, eight months later knowingly lied about this can of worms to Laurie James, President of the Institute of Arbitrators Australia stating he and the arbitration resource unit had assessed all of the 24,ooo documents when it was he who had refused to accept them as an amendment to my claim shows what one wicked lie can do. No wonder the TIO did not want to ‘open the can of worms’ which would then have exposed it was Telstra’s threats which they eventually carried out because I had assisted the Australian Federal Police with their investigations into Telstra’s interception of both my telephone conversations and faxes.q

On the 28 June 1995 letter the newly appointed TIO states, “Our file does not indicate that you took the matter any further…” (see Open Letter File No/52-C). However, when my letter of 24 January 1995 ( Open Letter File No/52-B) was returned to me, the fax footprint on page 2 – 24-01-1995 15:12 FROM CAPE BRIDGE HDAY CAMP TO 036148730 – indicates that it was received at the arbitrator’s fax machine (number 036148730). So why did the TIO advise me that records in his office show no receipt of this 24 January 1995 letter? This has been discussed in more depth in Arbitrator Part One, Chapter Eight. Whoever concealed this 24 January 1995 letter and sabotaged me from proving my case, not only perverted the course of justice, but also ruined 22 years of a family’s life and destroyed a family unit with all that is inherent in it. This is something that cannot be regained, no matter how much compensation is paid.

Telecommunications technical expert and ex-29 year Telstra veteran, Brian Hodge B. Tech (Electronics), MBA, prepared a report dated 27 July 2007:

“Common Channel Signalling No 7 DOES NOT appear or function at Cape Bridgewater RSM. As no switching, analysis, or billing take place CCS7 is not required. …

“As the CCS network transists the call through the network no CCS7 link existed from Warrnambool to Portland at this time (e.g. 1993/94).” (See Main Evidence File No 3, point 5.2)

5[1]On 8 and 12 December 1994, two senior Telstra technicians signed witness statements attesting to the fact that the nearest telephone exchange, which could have possibly facilitated the Tekelec CCS7 monitoring system, was 116 kilometres away in Warrnambool Victoria.

These witness statements are included as exhibits 11 and 12 on a CD, Telstra’s Falsified BCI Report ‘masked identities’ Exhibits 1 to 46, provided in 2014 to the offices of the Hon Tony Abbott, then-Prime Minister of Australia; the Hon Malcolm Turnbull, then-Minister for Communications; the Hon Barnaby Joyce, Minister for Agriculture; the Hon Dan Tehan, (my local federal MP); Senators Scott Ryan and Barry O’Sullivan and the AFP.

Documents in  Telstra’s Falsified BCI Report ‘masked identities’ Exhibits 1 to 46, show Telstra misled and deceived a Senate Estimates committee hearing in September 1997, in relation to tests allegedly carried out in Cape Bridgewater by Bell Canada International Inc. (BCI). When the Senate Estimates committee asked Telstra, on notice, to provide relevant information to support their claims, Telstra knowingly submitted false information; an act legally classified as contempt and punishable by a prison term. No one responsible for this falsified information has ever been publicly held accountable, let alone sentenced, despite Telstra’s stating that BCI used a Tekelec CCS7 Monitoring System to generate an alleged 15,590 test calls through Cape Bridgewater.

My 24 January 1995 letter asked Dr Hughes to acquire copies of all the Bell Canada International Inc. (BCI) test information because Telstra had not provided any of that information to the arbitration process, under FOI.  That would have allowed me to prove that Telstra had knowingly provided at least one of their arbitration witnesses with false information, before that witness provided his so-called ‘findings’ to the arbitrator (see Telstra’s Falsified BCI Report).

Dr Hughes and the arbitration resource unit were all fully aware that Telstra had stopped supplying me with any relevant FOI documents as ‘punishment’, because I had continued to supply the Australian Federal Police with the documents they had asked me for, to assist in their own investigation into Telstra’s unauthorised interception of my telephone conversations and fax transmissions. Even with this knowledge, someone from Dr Hughes’ office still hid my 24 January 1995 letter in order to minimise Telstra’s liability.

Australian Senate

This Hansard is also relevant to my story because it shows quite clearly that, when Mr Pinnock addressed the Senate Committee, he was selective about the information he provided. He also implied wherever possible that the COT claimants were as much at fault as Telstra, for the delays in the process when he knew this was not the case.

It was during this Committee hearing, in the presence of Mr Pinnock that Senator Schacht questioned Telstra’s John Armstrong concerning my claims that the BCI Cape Bridgewater tests were fabricated stating: “…As a result of those complaints, did you find that Telstra had to take any action in respect of the BCI report to rectify any inaccuracies or shortcomings in the system”

Mr Armstrong:

“Yes. The basis upon which it was put that the report was fabricated was an apparent clash of dates, as I recall, with two sets of testing. This goes back a couple of years. I believe that claimant raised the matter with the TIO. Telstra went to Bell Canada and raised the clash of dates with it. As I recall, Bell Canada provided a letter saying there was an error in the report”.

Senator Schacht –

Can you please provide us a copy of that letter from Bell Canada…and…I will put that question on notice”.  

Long before Mr Armstrong spoke to Senator Schacht however, Telstra and John Pinnock had already been provided with clear proof that Bell Canada International Inc. could not possibly have used the TEKLELEC CCS7 monitoring system they claimed to have used at Cape Bridgewater, which means, of course, that they could not possibly have carried out any testing at all, on any of the five days they claimed to have carried out that testing, because neither the Cape Bridgewater exchange nor the main Portland exchange could handle the CCS7 system, and the Warrnambool exchange, which was 116 kilometres away, was the closest exchange that could use this system.

If this relevant information had been provided to the Senate as part of Telstra’s response to Senator Schacht questions On Notice, then the Senator would have demanded, on notice, that Telstra explain as to why they had allowed such a fundamentally flawed report to be submitted to the COT arbitration process.

Bell Canada International Inc

Cape Bridgewater Bay

We repeat statements at different times through our various pages so you can fully appreciate Telstra’s offences against the COT cases. In some cases, Telstra appointed a clinical psychologist to swear, under oath, in witness statements attesting to something they knew might not be the case. During my own arbitration process, Telstra supplied a renowned Melbourne clinical psychologist with a technical report they knew was fundamentally flawed, before he interviewed me as part of the arbitration process. After my arbitration was concluded, a witness and I visited this psychologist, in his Queen Street, Melbourne, office and provided him with the truth surrounding this falsified report originally prepared by Bell Canada International Inc. (See Telstra’s Falsified BCI Report ‘masked’) Even though this report proved he was misled and deceived by Telstra before he assessed my mental state, he declined to assist me.

The BCI report alleged that, for a number of hours each day from 5 to 9 November 1993, they generated 13,590 incoming calls to a TEKELEC CCS7 monitoring system installed at the Cape Bridgewater RCM exchange, with a success rate of 99.9 per cent. When Dr Gordon Hughes (the arbitrator) prepared his 11 May 1995 award in my case, he states he placed the BCI report into evidence. The fact that Dr Hughes and the clinical psychologist read this report (see below), before they prepared their individual findings is testament my claims concerning the conduct of my arbitration must be transparently investigated by the appropriate authorities. Providing false information to a clinical psychologist, during litigation and before interviewing me prior to reporting back on my mental state, is unconscionable conduct of the worst possible kind. Of course, after reading the report, the psychologist includes remarks like, “In my professional opinion his preoccupation has become a clinical obsession.” Who wouldn’t think I was mentally unstable, after reading that an international, world standard, communications company from Canada tested the Cape Bridgewater RCM exchange and officially reported they found it to be up to “world standard”.

Two formal, witness statements, dated the 8 and 12 of December 1994, prepared by Telstra technicians, Chris Doody and John Stockdale, confirm the nearest exchange that could accommodate the TEKELEC CCS7 monitoring system was 116 kilometres from Cape Bridgewater in Warrnambool (south-west Victoria).

Furthermore, on 24 October 1997, Telstra provided false information to the Senate estimates committee secretary attesting the BCI Cape Bridgewater Report as factual and that my information provided to the Senate was incorrect. Knowingly providing false information to a Senate estimates committee hearing On Notice is an act of contempt of the Senate.

The fact that Telstra’s lawyer, signed the arbitration witness statement on behalf of the clinical psychologist (see below), and submitted the document into the arbitration, without the clinical psychologist signing it; proves this matter should have been investigated during my arbitration, along with why my faxes were not reaching their intended destination.

Clinical psychologist

To add further insult to these injustices, on 12 September 1994, as part of the arbitration process, 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 the arbitration process. I found the process of being interviewed by a 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.

I found the process of being interviewed by a 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.  It was such an appalling experience that, afterwards, I wrote to Frank Blount (who was Telstra’s CEO then), Dr Hughes (the arbitrator) and Warwick Smith, describing what I had been forced to endure.  Still, however, no-one even attempted to look for answers on my behalf.  In fact, no-one even tried to explain why the psychologist and I hadn’t been allocated a private room.  To make matters worse, this is just one of many examples of how the Australian Government minders, and those administering the COT arbitrations, completely ignored Telstra’s gross misconduct.

It was such an appalling experience that, afterwards, I wrote to Frank Blount (who was the then Telstra’s CEO), describing what I had been forced to endure at the hand of this psychologist (see Introduction File No/12). As it turned out, my letter was written on the same day that Senator Ron Boswell began to demand answers from Telstra’s legal directorate: the Senator wanted to know why Telstra had threatened to withhold FOI documents from me after I had assisted the Australian Federal Police with their investigations into Telstra’s unauthorised interception of my telephone and faxes (see Senate Evidence File No 31).

Still, however, there was no attempt made to find out why this psychologist conducted my interview the way he had and nor did anyone confront Telstra about the threats that had, by then, become a reality. In fact, no-one even tried to explain why the psychologist hadn’t been allocated a private room at the hotel, where he could have conducted the interview.  To make matters worse, this is just one of many examples of how the Australian Government minders, and those administering the COT arbitrations, completely ignored the basic rights of the COT Cases, who had all already suffered so much, for so many years, before their arbitrations even began.

One of the most important issues I raised with this psychologist was the trauma I suffered at the hands of the legal firm that hired him. He appeared to listen carefully to what I described and he said being directed to register phone complaints, in writing, with Telstra’s lawyer, before they would be investigated, was most disturbing. I provided confirmation that losing six incoming calls in a single day was common. Writing to a lawyer, explaining lost calls, was more than just soul-destroying, it just about broke my will power to carry on. He said he was shocked Telstra and its legal firm forced this on me and agreed this would certainly affect my mental state over the many months I had to do this.

However, when Telstra’s lawyers, which the government assured us would not be used in our arbitrations (see Prologue Evidence File No/2), provided this clinical psychologist’s witness statement to the arbitrator, it was only signed by a lawyer from this legal firm. It bore no signature of the psychologist and didn’t contain his concerns regarding me having to first contact this legal firm, in writing, before Telstra would address my telephone problems. The witness statement includes comments such as, “In my professional opinion his preoccupation has become a clinical obsession.”

The most alarming points about this unsigned witness statement are:

  1. Before the psychologist met with me, Telstra’s lawyers provided him with a copy of the Cape Bridgewater Bell Canada International (BCI) addendum report stating 13,590 test calls were carried out, over a five-day period, into the Cape Bridgewater RCM exchange, using the TEKELEC CCS7 monitoring equipment. This report stated the test calls had a 99 per cent success rate.
  2. Neither the psychologist nor the arbitrator was told tests through the Cape Bridgewater exchange was impracticable: the nearest exchange that could accommodate the TELELEC CCS7 equipment was the Warrnambool exchange, 120 kilometres from Cape Bridgewater (see Telstra’s Falsified BCI Report ‘masked identities’)

Had the psychologist known the 13,590 tests calls, allegedly carried out by BCI, could not terminate through the TEKELEC CCS7 monitoring system at Cape Bridgewater, his assessment of my mental state would have been somewhat different. He, too, might have been distressed if he had been aware Telstra misled and deceived him prior to him assessing my mental state.

Worse, however, the day before the Senate committee uncovered this COT Strategy, they also told under oath, on 24 June 1997 see:- pages 36 and 38 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 (Telstra’s Lawyers) area – there were five complaints. They were Garms, Gill and Smith [me], 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 – What, stop them reasonably or stop them at all costs – or what?”

Mr White – The words used to me in the early days were we had to stop these people at all costs”.

Senator Schacht – Can you tell me who, at the induction briefing, said ‘stopped at all costs” .(See Front Page Part One File No/6)

The It is clear from Mr White’s statement he identified me as one of the five COT claimants that Telstra had singled out to be ‘stopped at all costs’ from proving their my against Telstra’. One of the named Peter’s in this Senate Hansard is the same Peter who swore under oath, in his witness statement to the arbitrator that the testing at my business premises had met all of AUSTEL’s specifications, when it is clear from Arbitrator File No/110 that Telstra’s own Customer Call Analysis System (CCAS) data for 29 September 1994 show NONE of the mandatorily required 20-tests calls to each of my service lines 055 267 267055 267230 and 055 267260 were generated into my business and held open for the required period of 120-seconds for each completed call. In simple words, the SVT process at my business was not carried out according to the government communications regulatory mandatory specifications. Telstra is fully aware Peter (on page 38 of this Hansard) received advice from AUSTEL, on 11 October and 16 November 1994, regarding the Service Verification Tests (SVT) being grossly deficient. AUSTEL demanded Telstra advise what it intended doing about this deficiency see Front Page Part One File/No 24-A to 24-B. No second SVT tests ever took place at my business during my arbitration. However, in November 2002 (eight months after I sold the business) Telstra tested the business for the new owners, concluded the wiring, cabling and the Telstra-installed infrastructure was corroded and the whole holiday camp was rewired.

This is the same Peter who somehow had the power to direct a Government Regulator regarding who they could release this known faulty SVT information to and who they could not release it to see Arbitrator File No/98 even though the Government Regulator (AUSTEL) knew that the inaccurate SVT results were being used to support Telstra’s arbitration defence of at least four COT Cases claims (which included me)

This same Peter refused to conduct any sort of testing at my premises. Both Peter and David Reid (an ex-Telstra technician, and now with Lane Telecommunications) were present to investigate on-site telecommunication arbitration information. Lindsay White, whistleblower, admitted, under oath to senators, that Peter said I was to be stopped – at all cost – from proving my claim. Peter was able to pressure David Reid, part of the allegedly independent arbitration resource unit, not to test my three service lines that were experiencing ONGOING problems when they visited my business on 6 April 1995. From what happened on this day, it is apparent the government-endorsed arbitration process was designed – NOT to assist the COT cases in proving their claims – but to destroy the credibility of the COT cases’ claims in order to sell off the Telstra network, no matter how degraded the arbitration process found it was.

After viewing the Cape Bridgewater Holiday Camp (SVT) CCAS data dated 29 September 1994 (see Arbitrator File No/110) Brian Hodge, B Tech, MBA (B.C. Telecommunications), on 27 July 2007, prepared a report and on page 23, (see Main Evidence File No 3) concludes:

“It is my opinion that the reports submitted to Austel on this testing programme was flawed, erroneous, fictitious, fraudulent & fabricated, as it is clear that no such testing has taken place as Telstra’s own call charge system DOES NOT record any such activities. Therefore the results are flawed or did not occur”   

Didn’t the statements made under oath by Lindsay White to the Senate Estimates Committee on 24 June 1997, mean anything at all regarding the advice he received from this Peter that we FIVE COT cases had to be stopped at all cost from proving issues such as the falsified arbitration SVT witness statements to the arbitrator (see Telstra’s Falsified SVT Report)?

On 26 September 1997, the new TIO advised a Senate Estimates Committee, that:

“Firstly, and perhaps most significantly, the arbitrator had no control over that process, because it was a process conducted entirely outside the ambit of the arbitration procedures.”

There is no amendment attached to any agreement, signed by the above-mentioned COT members, allowing the arbitrator to conduct those particular arbitrations entirely outside the ambit of the arbitration procedure – and neither was it stated that he would have no control over the process once we had signed those individual agreements. How can the arbitrator and TIO continue to hide under a confidentiality clause contained in our arbitration agreement when that agreement did not mention the arbitrator would have no control because the arbitration would be conducted entirely outside of the agreed ambit of the procedures?

A breath of fresh air

15 July 1995: AUSTEL’s previous general manager of consumer affairs provided me with an open letter noting:

woman-writing[1]

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

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

7 August 1995: The TIO wrote to me regarding the impracticable BCI tests. It is not surprising to learn that the person who sent these late FOI documents was the very same person who, 29 months later, admitted he attended TIO council meetings when COT case matters were discussed.

Arbitrator File No/54 shows I requested the information in my original May 1994 FOI application. Here it was, provided on 23 May 1995 (12 months after I requested it) by the very man who wore two hats. Are we to ignore that his presence on the TIO council allowed him to gain inside knowledge of when best to supply the COT cases with requested documents, at a time when it would cause Telstra the least amount of damage?

The stress of dealing with these ongoing issues took its toll and I became drained of energy. The daily business of running the campsite was overwhelming. My partner, Cathy, was handling the workload almost entirely on her own. My self-esteem continued to sink lower and I was unable to put my marketing and promotional expertise, gained through productive, successful work life, into practice. I was unable to think clearly any more, let alone compose advertisements or talk coherently to people about the camp.

Again and again, I found myself dwelling on the events that led to my situation. How could this happen in Australia in the 1990s? Wasn’t this supposed to be a democracy? How could the Liberal Coalition Government continue to ignore me? How could the lawyers get away with hiding the truth in order to prop Telstra up? I couldn’t work out which way to turn next.

Finally, I decided to ask for all my claim documents to be returned to me (this was covered in the rules of the arbitration). I waited patiently for weeks, before deciding to drive to Melbourne and collect them personally. I thought I had been as angry as it was possible to be, but no, by the time Cathy and I arrived in Melbourne, I was ready to explode. I controlled my anger though as I walked into the arbitrator’s reception area and spoke to the arbitrator’s secretary, Caroline. Looking back now, I wonder why I expected to have my request met this time; certainly, none of my previous requests was met, but I suppose we can always hope. It was not to be, however. Caroline informed me that my documents were not ready and the arbitrator was unavailable.

My emotions finally boiled over and I shouted at Caroline, demanding that she get my documents at once and reminded her that I had put in my request three months before and had now driven five hours to collect them. “I am not leaving this office without those documents.” I told her, “Call the police if you want to, I don’t care. You have my property and I want it back now.” Finally, a young lad appeared from the lifts wheeling a trolley loaded with boxes of documents. He asked me to sort out which were my claim documents. I simply took the lot.

It took Cathy some time to find a parking spot near this busy city office. I finally loaded the documents into the car and we left, unaware that among my own documents there were some that I had never seen before. These proved to be documents and reports that should have been forwarded to me under the rules of arbitration. And they were very, very interesting, to say the least.

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Of course, in a dispute that is settled by an umpire (like arbitration), it is usually mandatory that any information supplied by one party, must be automatically circulated to the other party. This was certainly so, according to the rules of my arbitration. More to the point in my case, information also had to be supplied to the TIO’s legal counsel. Among the documents I obtained from the arbitrator’s office that day, I found a brown envelope full of documents and loose papers, none of which had ever been forwarded to me. This envelope contained copies of a number of letters from Telstra to the arbitrator, including one letter dated 16 December 1994, which indicated there were three attachments:

  1. Letter dated 4 October 1994 from Austel to Telstra
  2. Letter dated 11 November 1994 from Telstra to Austel
  3. Letter dated 1 December 1994 from Austel to Telstra

In the first paragraph of this 16 December letter, Telstra stated:

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

Clearly, at that time anyway, AUSTEL were most concerned regarding this incorrect charging and, on page two, Telstra state:

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

Why didn’t I receive some indication of this from the arbitrator? I did not receive any correspondence from him in reference to this arrangement, but AUSTEL later wrote to the arbitrator acknowledging receipt of Telstra’s letter of 11 November 1994 and noting that Telstra had agreed to answer, in their defence of my claims, each of the questions put by AUSTEL on 4 October 1994.

In their earlier letter of 1 December, AUSTEL was aware that a number of other Telstra customers in the Portland area had also complained about incorrect charging on their 008 services and so it is not surprising to find them raising their concern about this in their letter of 8 December.

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

In direct breach of the rules of the arbitration, the arbitrator did not forward these letters on to me during the arbitration.

Even more surprising, the arbitrator made no written finding in his award in regard to the massive incorrect charges as shown in my claim documents.  In fact, even though Telstra had notified both the arbitrator and Austel (in their letter of 11 November 1994) that they would address these incorrect charges’ issue in their defence. They failed to do so. Even though the arbitrator obviously knew of this promise, he still allowed Telstra to ignore the issue completely.  This constitutes a conspiracy between the arbitrator and Telstra in my arbitration. I was to uncover even more, when I turned to the loose documents I had come by inadvertently.  These documents related back to the day the COT four signed up for arbitration, on 21 April 1994.

In direct breach of the arbitration rules, the arbitrator did not forward these letters on to me during the arbitration.

Even more surprising, the arbitrator made no written finding in his award regarding the massive incorrect charges shown in my claim documents. In fact, even though Telstra had notified both the arbitrator and AUSTEL (in their letter of 11 November 1994) that they would address the issue of incorrect charges in their defence, they failed to do so. Even though the arbitrator knew of this promise, he still allowed Telstra to ignore the issue completely. This constitutes a conspiracy between the arbitrator and Telstra in my arbitration. I was to uncover even more, when I turned to the loose documents I had come by inadvertently. These documents related back to the day the COT four signed up for arbitration, on 21 April 1994.

IMPORTANT: The three aforementioned letters are part of the 16 October 1995 covert addressing of my arbitration claim documents, fully five months (see below) after my arbitration was deemed complete, and therefore, they were outside the arena of the arbitration process.

Regardless of my arbitration costing me more than $200,000 in preparation fees, AUSTEL still allowed Telstra’s original arbitration defence liaison officer to address the same letters discussing my ongoing billing faults. The arbitration resource unit later admitted (on 2 August 1996) these documents were never passed to the arbitrator for evaluation (see Open letter File No/45-H). However, if we combined Open letter File No/45-A to 45-I with Open letter File No/46-A to 46) it will be obvious to most reading this combination that some sort of conspiracy in order not to address my arbitration billing claims was orchestrated by so far unnamed ‘forces at work’. 

Quite simply, when the resource unit withheld these letters from the arbitrator and I, they allowed Telstra off of the hook from having to address a nationwide network billing problem affecting thousands of their customers. This also left the door open for the government regulator AUSTEL to address these major problems covertly, and in doing so also disallowed me my right to challenge Telstra. I could have replied to Telstra if the letters had been shown in my arbitration.

Did Telstra and the resource unit covertly agree to this arrangement during my arbitration so that Telstra did not have to tell the truth about how bad the 008/1800 RVA problems were? Their letter of 16 October 1995 (Five Months After) my arbitration when attempting to address these issues consists of lies upon lies.

The fact that the 2 August 1996 letter Memorandum of Advice to the arbitrator acknowledging those five letters were NOT provided to him and subsequently I, during the arbitration, should have made the arbitrator demand why these billing issues were NOT submitted as arbitration documents.

However, the arbitrator did nothing with this 2 August 1996 memo; neither did the TIO who was the administrator.

This act was collusion of the worst possible kind.

These faults continued to affect the viability of my business for years after my arbitration was supposed to have addressed these issues.

Again, one of the main reasons we signed up for arbitration, as opposed to the existing commercial agreement, was to have Telstra’s billing system scrutinised. The members of COT wanted this major issue brought to the attention of all Telstra’s customers; in the public’s interest.

This letter from the TIO, dated 7 August 1995, notes:

You have also complained that on 26 May 1995 you received further FOI documents from Telstra which, you state, would have assisted your claim significantly.

“In particular, you claim:

  1. the further FOI documents released confirmed that Telstra internally acknowledged to Bell Canada International Inc. (‘BCI’) that your complaints were correct in suggesting that the BCI testing of your telephone service was “fabricated” as the testing could not and did not take place as reported in the BCI Addendum Report; …
  2. Telstra has knowingly presented to the Arbitrator a “fabricated” testing and evaluation report that “…. was allegedly independently and impartially performed and created” by BCI.
  3. The Resource Unit took into account the flawed BCI report. …

“In order to deal with your complaints expeditiously, I would be pleased if you could provide this material to me within 14 days.” (See Home Evidence File No/35 )

As I began the task of assembling this recently supplied information into a claim of some sort, faults were still occurring on my telephone service lines. This was the ‘hang-up’ fault, which I later learnt was the fault the arbitrator would not allow his technical consultants the extra weeks they requested in order to investigate. By combining Open letter File No/45-C and Open Letter File No/47-A to 47-D) it will once again be seen that the arbitration consultants did not address my 008/1800 billing claims (see Prologue/Chapter One.

This 3 October 1995 letter from AUSTEL to Telstra’s arbitration defence liaison officer and copied to the TIO, states:

“I write concerning charging discrepancies raised in 1994 by Mr Alan Smith of Cape Bridgewater Holiday Camp regarding his 008 service, and the wider issue these discrepancies raise for Telstra’s 008/1800 customers. These matters have been the subject of previous letters from AUSTEL to you and to [Telstra], dated 4 October 1994 and 1 December 1994, respectively. The charging discrepancies have again been raised with AUSTEL by Mr Smith following the conclusion of his Fast Track Arbitration Procedure.”

On 14 October 1995, AUSTEL’s Darren Kearney wrote to me under the subject heading Charging Discrepancies Related to Telstra’s 008/1800 Service:

“As noted in my letter to you of 4 October 1995, AUSTEL has written to Telstra regarding the issues originally raised by you in 1994. The letter refers specifically to charging discrepancies raised in 1994 by Mr Alan Smith of Cape Bridgewater Holiday camp regarding his 008 service. …

“As previously advised, you will be informed of the outcome of this matter.”

Did the arbitration resource unit understand that when they failed to investigate the ongoing billing problems, they did not address the cause of the billing issues? The billing issues included calls registering into the holiday camp lines through Telstra’s Call Analyses Charges System (CCAS) that I was charged for, although the connection actually failed, and a fault where successful calls were terminated but the line remained engaged, thus prohibiting incoming or outgoing calls. The failure of the engaged line to correct itself, leaving the line effectively frozen, was significant.

This fault was only obvious when dialing out from the business office. From 1993 onwards, Telstra often advised us to disconnect the phone at the wall socket and then plug it back in to free up the line. This indicates the fault was in either the phone or the actual phone line. In order to dial out of the office when this particular fault was present (it was intermittent), we had to disconnect the line at the wall after every call.

Faults continued to occur. In January 2003 – seven years after the arbitration process – the new owners of my business wrote to David Hawker MP, seeking help (see Arbitrator File No/118). Ex-Telstra technical guru Brian Hodge, after viewing Telstra’s own fault material, confirms the problems were still affecting the business in November 2006. When the project manager admitted that NONE of the billing issues were addressed during my arbitration (see below), he also admitted to not investigating the faults that caused these billing issues. In fact, in both the draft and final 30 April 1995 technical arbitration evaluation Cape Bridgewater Holiday Camp reports, the consultants state:

“2.23  Continued reports of 008 faults up to the present. As the level of disruption to overall CBHA (Cape Bridgewater Holiday Camp) service is not clear, and fault causes have not been diagnosed, a reasonable expectation is that these faults would remain “open” (See Introduction File No/1-B)

The TIO-appointed arbitration project manager wrote to the TIO on 15 November 1995 advising them that NONE of my billing faults were investigated because the material was not submitted until April 1995.

“A second matter involved 008 calls. Again, this matter was current at a late stage (April 1995) of the Arbitration process. …

“As no further progress was likely to be made on these matters, the formal version of the Technical Evaluation Report did not leave the billing issue open. (See Introduction File No/1-A )

Although the billing issues were certainly still “current” in April 1995, this letter implies that they were not referred to before: this is inaccurate as my billing issues were included in my letter of claim, which Garry Ellicott and Barry O’Sullivan lodged on 15 June 1994. The project manager, once again, misled and deceived the TIO. This same project manager was present at the oral arbitration hearing with the arbitrator and Telstra on 11 October 1994. I informed both the arbitrator and Telstra, in detail, as to the true extent of Telstra’s billing problems within their network. The transcript of this hearing shows that both the arbitration project manager and the arbitrator were given massive (and we repeat – massive) amounts of evidence in relation to wrongly calculated accounts charged to my phone services over many years recorded these facts. (See Open letter File No/45-B)

If my claim advisors, Garry and Barry, had provided me with the costs of the freight charges between Queensland and Victoria and the dates they sent the material on, I could have proved conclusively to the TIO that my billing claim documents were sent in June 1994, as the freight invoice would have shown when it left their Queensland office. No one has attempted to investigate why these documents were kept from the arbitration, not even my claim advisers. Senator Barry O’Sullivan has not replied to my questions as to why he won’t supply the freight costs.

If Mr Kearney is honest, then I am sure he remembers what he told me after I showed him point 2.23 (above). I remember, vividly, that he asked how the technical consultants could sign off their report as complete, when they had not even attempted to diagnose the causes of the faults that Telstra’s CCAS data showed were a major problem for my business. I told Mr Kearney the Canadian technical consultant had spoken to me on the telephone and informed me the report was not signed off because it had not been completed. We address this issue in more detail on another page.

While Mr Kearney was clearly shocked at the evidence contained in my comprehensive log of fault complaints and appeared to empathise with me regarding the arbitrator’s duplicity, he made it clear AUSTEL could not intervene. He requested, almost apologetically, that he be allowed to take the comprehensive log and its attachments – five spiral-bound evidence files compiled by Garry Ellicott and Barry O’Sullivan. I allowed Mr Kearney the privilege of taking this information to Melbourne. However, similar to when I ignored Telstra’s threats (see Senate Evidence File No/31) and continued assisting the AFP with their investigations, I was again deceived. AUSTEL (now ACMA) like the AFP, have refused to assist me when I needed the same assistance they had received from me.

Chapter Fourteen

Was it Legal or Illegal?

16 October 1995: Five months after my arbitration was deemed complete (and hence outside the arena of the arbitration process) AUSTEL allowed Telstra’s original arbitration defence liaison officer to address the 27 May 1994 recorded voice faults my claim advisor Garry Ellicott experienced (see also  Open letter File No/46-A to 46-l). These were some of the billing RVA faults that the resource unit later admitted (2 August 1996) to the arbitrator and TIO that they had withheld from the arbitration process (see Open letter File No/45-H).

Trying to produce a readable claim when the story was so complex, multi-layered and obscured by long-delayed access to necessary information was extremely challenging. My phone and fax lines became lifelines to Garry Ellicott in Queensland. Ex-senior Queensland police officers Garry Ellicott and Barry O’Sullivan (now the Hon Senator Barry O’Sullivan) were heavily involved in my arbitration. Between May 1994 and May 1995, while working on my claim, Garry frequently experienced major problems when he tried to contact me by phone or fax (this was pre-email). Sometimes he attempted to phone me, but received an incorrect recorded voice announcement (termed an RVA fault) telling him that my phone line was ‘no longer connected’; sometimes the line was simply dead. Sometimes he was unable to send faxes to me or I could not receive them; on other occasions when faxes did get through, if they weren’t completely blank pages, they were so distorted they were unreadable.

When Garry attempted to ring me on 27 May 1994 on my 1800 service, he twice reached a recorded announcement telling him my number was not connected, before he finally got through. When Garry rang the Telstra fault centre to complain about these voice messages the operator told him she could not register the fault because the complaint had to come from the customer. Garry’s response was understandably blunt. He asked, ‘How can the customer complain if he doesn’t know I’m trying to reach him?! How can he complain if he is not aware that his incoming callers believe he’s no longer trading?’ When my telephone account arrived I had, of course, been charged for both failed calls.

AUSTEL, allowing Telstra to address arbitration issues outside of my arbitration, prohibited me from legally challenging (as part of the original arbitration process) Telstra’s response to the ongoing billing problems that still affected the viability of my business. AUSTEL did not alert me to this, which meant that I was unable to use my legal right to challenge Telstra on this matter.

When AUSTEL allowed Telstra to address these ongoing RVA billing issues covertly (see Open letter File No/46-L to 46-l) and without the involvement of the original ‘umpire’ (in my case, the arbitrator) AUSTEL could not have known that my claim advisors had already proved to the arbitrator that Telstra’s witness statement was full of inaccuracies. Telstra was able to submit this same witness statement to AUSTEL, fully aware that AUSTEL did not know what Gary Ellicott and Barry O’Sullivan (my claim advisors) had proven.

Anyone who uses a telephone has at some time reached a recorded voice announcement (known within the industry as RVA):

The number you have called is not connected or has been changed. Please check the number before calling again. You have not been charged for this call.’

This incorrect message was the RVA people most frequently reached when trying to ring the Camp. While Telstra never acknowledged this, I discovered much later, among a multitude of FOI documents I received in 1994, a copy of a Telstra internal memo which explained, ‘this message tends to give the caller the impression that the business they are calling has ceased trading, and they should try another trader’.

Another Telstra document referred to the need for:

‘a very basic review of all our RVA messages and how they are applied … I am sure when we start to scratch around we will find a host of network circumstances where inappropriate RVAs are going to line’.

It seems the ‘not connected’ RVA came on whenever the lines in or out of Cape Bridgewater were congested, which, given how few lines there were, was often.

For a newly established business like ours, this was a major disaster, but despite the memo’s acknowledgement that such serious faults existed, Telstra never admitted the existence of a fault in those first years. And with my continued complaints I was treated increasingly as a nuisance caller. This was rural Australia, and I was supposed to put up with a poor phone service — not that anyone in Telstra was admitting that it was poor service. In every case, ‘No fault found’ was the finding by technicians and linesmen.

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NOTE: The arbitration confidentiality agreement, which both Telstra and I signed, prohibited us from exposing these types of documents outside of the arbitration process. Yet Telstra, on 16 October 1995, supplied AUSTEL some of their original arbitration defence documents. Telstra not only breached the confidentiality agreement, they used documents already proven false. If AUSTEL had gathered the main players together and insisted the arbitration issues be addressed because the systemic billing issues affected thousands of Telstra customers, the arbitrator would have been duty bound to reopen the arbitration.

How can AUSTEL (now the ACMA) continue to state that they are independent of Telstra and did not compromise my position? Mr Kearney’s report, from the information I provided him on 19 December 1995 (see below), confirms Telstra incorrectly charged me for telephone calls for more than two years, both before and during my arbitration. Between June 1993 and December 1995, I provided AUSTEL with copies of Telstra System CCAS data, showing that Telstra had a systemic billing problem in their network. Over this period, AUSTEL wrote to Telstra on numerous occasions regarding my claims. One letter, dated 4 October 1994, demanded answers (see Open letter File No/46-F to 46-l) and another letter, dated 2 August 1996, show AUSTEL was very concerned as it appeared this systemic billing problem still existed within Telstra’s network (see Arbitrator File No/115). Will the Australian public ever know how much extra revenue Telstra made during the period in which this systemic billing problem existed in their network?
Mr Kearney’s statements in his February 1996 report (see Arbitrator File No/109) support my original arbitration billing submission (which accompanied our arbitration chronology of faults submission and hence was hidden from arbitration) and show that the billing information that Telstra provided to AUSTEL on 16 October 1995 was fundamentally flawed. The information AUSTEL allowed Telstra to submit in secret did not match Mr Kearney’s findings. In essence, AUSTEL allowing Telstra to address some of my arbitration billing claims in secret, without an arbitrator present and disallowing me my legal rights to challenge Telstra’s submission, severely compromised my future complaints of ongoing telephone problems.

The TIO and Telstra both refused to properly investigate the ongoing problems until 16 January 1998, and then it was agreed (see Main Evidence File No 35 and File No 36) that these problems continued to haunt my business long after the end of my ‘completed’ arbitration. So, in 2015, how can the government say that the government communications regulator did not breach their statutory obligation to me as a citizen of Australia? Particularly, when they allowed Telstra to covertly address issues, which had cost me $200,000-PLUS merely to submit them to an arbitration where ultimately only a part of my claim was assessed.

Three months after my arbitration was declared final, the elusive comprehensive log of my fault complaints that had been concealed from the technical unit (refer Arbitrator File/No 29 & 30) by either the arbitrator or the resource unit, re-emerged. The concealment of this important fault log – possibly the most important document in the whole arbitration process – means that there had to be a sinister motive behind it. If this was not gross misconduct on top of criminal conduct, then what is?

Behind all this deception is a smoking gun that links together all the crimes that were committed against the claimants; crimes that began even before the signing of the arbitration agreements; crimes that continued throughout the arbitrations and crimes that were even committed after those arbitrations had been labelled as ‘complete’.

For years I could not bring myself to believe the rumours that were floating around Melbourne while the TIO was administering the COT arbitrations. I heard that the Institute of Arbitrators Australia, the Commercial Arbitration Act 1984 and the confidentiality clauses in the COT’s arbitration agreement were being used as a shield to hide behind during the COT arbitrations. This would mean that the only way to challenge the arbitrations would be through a formal, legal appeal process, which, according to the Act, is almost unachievable.

Fagin[1]

Various interested parties looking at my story have suggested that the concealment of a document like my comprehensive log of fault complaints, during a litigation process like my arbitration, is considered a jailable offence in many Western democracies. Here in Australia however, this crime was concealed under the confidentiality clauses in my arbitration agreement even though it is now clear that the arbitration was not administered according to the agreed ambit of the Australian Arbitration Act 1984. If the Arbitration resource unit had provided this log for assessment, as they should have, it would have instantly been obvious that the telephone and fax problems were STILL occurring, even as my arbitration proceeded

In connection with these problems, in August 1994, George Close, my technical advisor, produced an arbitration report using Telstra’s own data showing that, between December 1993 and February 1994, two of my main service lines suffered blockage periods of up to 47%. George could not report occurrences between February 1994 and April 1995 because Telstra refused to supply any data for that period, even under the official arbitration discovery process. Even if we had received that extra data, however, the deletion of the arbitrator’s technical consultants’ request for an extension of time to investigate the ongoing billing issues meant it is unlikely this period have been inspected anyway.

Garry Ellicott reported the two RVA faults to Telstra on 27 May 1994 and I reported these faults to both AUSTEL and the TIO. My main complaint to the TIO was that I should not even have been in arbitration while these faults continued to destroy my business AND also interfered with the preparation of my claim. The TIO however would not listen to these valid points, but informed me that the arbitration technical unit would investigate these matters when they visited Cape Bridgewater as part of the arbitration process. As Open letter File No/46-F to 46-l) shows, and we discuss elsewhere, the arbitrator stopped the technical unit from carrying out that investigation at all. In a 16 February 1996 letter to the then-president of the Institute of Arbitrators Australia, the arbitrator states:

 “Mr Smith’s assertion on page 4 that a technical expert refused to discuss technical information at his premises on 6 April 1995 is correct – in this regard, the technical consultant was acting in accordance with his interpretation of my direction which prohibited him from speaking to one party in the absence of the other party at any site visit”. (See Open letter File No/45-A to 45-I and more importantly File No/45-G page 2, bullet 2)

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I am sure, if Garry Ellicott and Senator Barry O’Sullivan had known the arbitrator would stop the technical consultants from investigating most of the $51,000-worth of work they had prepared on my behalf, they would have demanded an investigation into the arbitrator’s refusal of the extra weeks his own technical resource unit requested to investigate my claims properly. Barry and I both signed each of the 16 pages of my official arbitration agreement. I believe, if Barry had known that none of the ongoing problems with my service lines would be addressed during my arbitration, despite those issues causing billing problems and interfering with my arbitration claims, and if he had known the arbitrator would have ‘no control over the process’ because it was going to be ‘conducted entirely outside of the agreed ambit of the arbitration procedures’ then he would have refused to sign the agreement at all, and probably would have advised me not to sign it either.

So why did the arbitration project manager stop the TIO from investigating my valid claim that the billing faults had been included in my elusive comprehensive list of fault complaints? What was the project manager so worried about that led him to write something he knew was an outright lie (see Open letter File No/45-A)? Why did he infer that I only submitted my billing claim documents in April 1995 (late in the arbitration) when arbitration documents show AUSTEL and Telstra was discussing these same billing faults as early as October and December 1994 (see Open letter File No/46-A to 46-l)?  M Rundell (Arbitration Project Manager) his character, like Charles Dickens’ notorious character, Fagin, is more than just questionable. This one deliberate lie cost me a proper transparent investigation. Sadly, the COT story is not a stage play, it is real. The villains appointed to run the process were hand-picked from among Australia’s business and government executives, which is probably why my claims have never been properly investigated. It seems also, sadly, that the scale of the power held by this small, but elite circle of influential people is growing, year by year.

Scrambling through this maze of deceit and deliberately misleading advice, continually takes us back to one important question: Why? Why would highly paid professionals like the arbitration project manager to decide to mislead and deceive an ombudsman? He must have known that, if he had not misled the TIO, my ongoing 008/1800 problems might finally be addressed as an amendment to the arbitration process that had been facilitated by the government regulator to address these type of ongoing problems.

I provided the TIO with enough evidence to suggest my faxes were either being intercepted en route to the arbitrator’s office or the arbitrator’s office was not passing them on to Telstra’s defence unit so they could be addressed as part of the arbitration procedure. This ‘non-legalistic’ arbitration was cursed with confusion and complications from the very beginning and even now no one seems willing to explain why so many of my claim documents disappeared during the process. When I found out that the technical resource unit only assessed my phone and fax faults from February 1988 to the start of 1994 I became even more convinced of a conspiracy of immense proportions. A conspiracy that not only involved the arbitrator, Telstra and those who administered the procedure, but also involving people higher up within Telstra; people who had the power to hide evidence. How can an Australian-owned corporation like Telstra fabricate reports and why are there no safeguards in place to check and prevent this from happening?

PLEASE NOTE: when Telstra provided their submission to AUSTEL on 16 October, 1995 Open letter File No/46-L they provided no advice of the date they had rectified this RVA message.  AUSTEL’s Chief Engineer, Cliff Mathieson, is fully aware I was still complaining about this RVA message affecting the viability of my business up until late 1996.  From December 1996 through to March 1997, I was still getting second and third-hand information from Singles Club patrons, (who were aware of this RVA fault), they continually persisted until they got through.  Their comments were that it took two or three times to get through.  Sadly, it is apparent that many customers would not bother having to try a second or third time!

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

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

(a) the cost of responding to the allegations;

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

It is confirmed from Chapter Three in our Prologue page (see below) that not only were these 24,000 documents not viewed by Dr Hughes and his resource unit it was he who refused me the extra time I had requested to submit two reports (into arbitration) which I had collated from these late received 20,000 FOI documents aware because they actually were supposed to have been freighted to Brisbane airport instead of the Portland airport 1,200 miles in the wrong direction. Dr. Hughes lies to Laurie James cost me dearly and continues to cost me dearly until these lies are investigated.

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

A further letter from Dr Hughes to the TIO on 15 February 1996 states:

“I would appreciate your confirmation that there is nothing in the proposed letter which would embarrass your office or jeopardise the current arbitrations.

“You may consider it appropriate for you to provide an independent letter of support. This is of course a matter for your discretion.” (See Arbitrator File No/43)

If Dr Hughes had conducted my arbitration in accordance within the ambit of the arbitration procedures, why would he seek confirmation from the TIO?

Arbitrator Part Two/Chapter Fifteen and Introduction File No 1-E confirm John Rundell advised the TIO, on 13 February 1996, the arbitration financial report, addressing my losses and which he was responsible for ensuring was factual in every detail, was not a complete report when submitted into arbitration for response by both Telstra and my financial adviser. In his same letter, the project manager states, “You should be aware that the Brighton CIB to interview Mr Smith in relation to criminal damage to my property…” When I read this comment, six years after it was written, I contacted the Brighton CIB (Victoria Police) who said they never intended to interview me regarding this matter and, in fact, they had no record of me being a suspect in any criminal matter at all.

On 17 February 1996 Dr Hughes wrote to to Laurie James, President of the Institute of Arbitrators (see point 3 above) attaching a copy of John Rundell’s letter of 13 February 1996 to the TIO). In this letter Dr Hughes advised Lauie James that:

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

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

Anyone reading my letter to Gareth Evans, dated 1 January 1996 (see Open Letter File No/49), will conclude I raised some very serious issues, which affected all the arbitrations still in progress.

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

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

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

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

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

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

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

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

Arbitrator File No/45 shows that on 30 March 1995 – 11 months before the arbitrator’s letters to Mr James – the arbitrator’s own resource unit wrote to the TIO outlining the progress of my arbitration. The timeline shows I advised them I received FOI material after my claim was finalised and that I “did not have the ability to examine these documents” in order to add to my claim.

John Wynack, director of investigations for the Commonwealth Ombudsman’s Office, and Tony Morgan, national chief adjuster for GAB Robins (Australia), are fully aware that most of these 24,000 documents were not related in any way to the previously withheld briefcase documents as well as having no identification or schedules from whence they were sources, while others belonged to the Fortitude Valley and Lutwyche telephone exchanges in Brisbane, more than 1,200 kilometres from my exchange. How could I submit this Fortitude Valley and Lutwyche technical documentation into my own Cape Bridgewater Holiday Camp arbitration claim when it belonged to Brisbane COT case members Ann Garms and Maureen Gillan?

My facsimiles and subsequent follow-up telephone conversations, on 4 and 5 May, advised Dr Hughes of the nightmare these late 24,000 FOI documents caused for me and I asked for an investigation into why so many FOI documents, without proper FOI schedules, were sent to me when they clearly belonged to Ann Garms and Maureen Gillan.

On 5 May 1995, Dr Hughes wrote,

I refer to your telephone message of 4 May and your facsimiles of 4 and 5 May 1995 and advise I do not consider grounds exist for the introduction of new evidence or the convening of a hearing at this stage.” He also reiterated his previous instructions: “any comments regarding the factual content of the Resource Unit reports must be received … by 5:00pm on Tuesday 9 May 1995” (See Call For Justice File No 88).

Dr Hughes cared little about the justice he denied me by not allowing me to submit those of the 24,000 FOI documents I could decipher. He also refused to convene a hearing to determine why Telstra’s threats – to withhold all future relevant FOI documents from me – came to fruition.

How does an ordinary citizen expose the truth about a high-profile arbitrator like Dr Gordon Hughes, who allowed his wife’s name to be used in a letter from John Pinnock (the then Telecommunications Industry Ombudsman) to the President of the Institute of Arbitrators Australia, stating that: Mr Smith has admitted to me in writing…” … to telephoning the arbitrator’s wife at 2 o’clock one morning’ (see ‘Lies by the TIO’ below) when no such phone call and no such admission ever took place? Even worse, Dr Hughes received a copy of Mr Pinnock’s letter so he was well aware that this 2 a.m. statement was false, and had been written with the sole aim of discrediting my character and so preventing the President of the Institute of Arbitrators Australia, Laurie James, from investigating my claims against Dr Hughes. When Dr Hughes allowed his wife’s name to be dragged into a situation such as an investigation by the Institute, particularly when he knew that what was being said about that alleged 2 a.m. phone call was not true, shows that it is not me who is lacking in good character, it is Dr Hughes. So why didn’t Mr Pinnock just provide Mr James with a copy of my so-called ‘admission’? Because he couldn’t: because NO such ‘admission’ was ever made. To discover why it was so important for Dr Hughes and Mr Pinnock to discredit me and to stop Mr James from investigating this matter, go to Tampering With Evidence/Chapter 2.

In simple terms, even though I chose what I believed was the most appropriate avenue to raise my concerns about the unethical way my arbitration had been conducted, i.e. through the Institute of Arbitrators Australia, that avenue was closed by the very people who had so much to lose if there was any chance of the truth actually being uncovered and exposed by the Institute.

Lies by the  TIO

On 27 February 1996, John Pinnock wrote to Laurie James President of the Institute of Arbitrators Australia (see point 4 above), attacked my credibility. The TIO deliberately misinformed Mr James that I had telephoned the arbitrator’s wife at 2 am one morning:

“Mr Smith has admitted to me in writing that last year he rang Dr Hugheshome phone number (apparently in the middle of the night, at approximately 2.00am) and spoke to Dr Hughes’ wife, impersonating a member of the Resource Unit.” (See page 3, Arbitrator File No /49)

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

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

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

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

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

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

Researching the following 24 June and 25 June 1997 Senate Hansards has caused me much grief. These two Hansards show many senators found heavily against Telstra employees for their unethical practices, not just towards the COT cases and our families but also against fellow Australian citizens, as the people of Australia fully owned Telstra when this rorting by Telstra employees flourished. Our website shows it was not just rank and file members within Telstra who acted unethically towards the COT cases: this conduct was sanctioned by Telstra executives – who were also on the Telstra and TIO board – as the following COT strategy shows.

On 24 June 1997 (the day before this COT Strategy was exposed), the ex-Telstra employee turned whistleblower, Lindsay White, advised a Senate estimates committee that, while he was assessing the relevance of the technical information requested by the COT claimants, two Telstra officials gave him instructions.

Mr White: “In the first inductionand I was one of the early ones, and probably the earliest in the Freehill’s [Telstra’s Lawyers] area – there were five complainants. They were Garms, Gill and Smith [me], 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: “What, stop them reasonably or stop them at all costs –or what?”

Mr White: “The words used to me in the early days were that we had to stop these people at all costs.” (See Front Page Part One File No/6, also pages 36 and 38 of Senate – Parliament of Australia)

Four months into my arbitration, I informed the arbitrator that Telstra was refusing to supply me with any more FOI documents because I had given sensitive FOI documents to the Australian Federal Police to assist their investigations into Telstra’s interception of my telephone conversations. I received not one single response concerning these threats – from neither the arbitrator nor the TIO.

Thus, the threats became a reality. What is so appalling about the withholding of relevant documents is that no one in the TIO office or government has ever investigated the disastrous impact this had on my overall submission to the arbitrator. Material, which could further support my claims before the arbitrator, was denied me.

On 25 June 1997, the day after the Senate committee were told we five COT cases had to be stopped at all cost from proving our claims, a number of senators discussed Telstra’s legal firm and its COT strategy, dated 20 September 1993. This strategy advises how Telstra can conceal technical information from the four COTs under Legal Professional Privilege, even though the documents were not privileged (see SENATE Hansard, page 5169). The COT strategy is available at Prologue Evidence File No/1-A.

The author of this COT strategy is the same lawyer with whom I was forced to register each of my phone complaints, in writing, before Telstra would address these problems. NONE of the fault information I provided to this lawyer, concerning ongoing telephone problems and Telstra’s response to those problems, were ever released to me during my arbitration.

To add further insult to these injustices, on 12 September 1994, as part of the arbitration process, 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 the arbitration process. One of the most important issues I raised with him was the trauma I suffered at the hands of the legal firm that hired him. He appeared to listen carefully to what I described and he said being directed to register phone complaints, in writing, with Telstra’s lawyer, before they would be investigated, was most disturbing. I provided confirmation that losing six incoming calls in a single day was common. Writing to a lawyer, explaining lost calls, was more than just soul destroying, it just about broke my willpower to carry on. He said he was shocked Telstra and its legal firm forced this on me and agreed this would certainly affect my mental state over the many months I had to do this.

However, when Telstra’s lawyers, which the government assured us would not be used in our arbitrations (see Prologue Evidence File No/2), provided this clinical psychologist’s witness statement to the arbitrator, it was only signed by a lawyer from this legal firm. It bore no signature of the psychologist and didn’t contain his concerns regarding me having to first contact this legal firm, in writing, before Telstra would address my telephone problems. The witness statement includes comments such as, “In my professional opinion his preoccupation has become a clinical obsession.”

The most alarming points about this unsigned witness statement are:

  1. Before the psychologist met with me, Telstra’s lawyers provided him with a copy of the Cape Bridgewater Bell Canada International (BCI) addendum report stating 13,590 test calls were carried out, over a five-day period, into the Cape Bridgewater RCM exchange, using the TEKELEC CCS7 monitoring equipment. This report stated the test calls had a 99 per cent success rate.
  2. Neither the psychologist nor the arbitrator were told tests through the Cape Bridgewater exchange were impracticable: the nearest exchange that could accommodate the TELELEC CCS7 equipment was the Warrnambool exchange, 120 kilometres from Cape Bridgewater (see Telstra’s Falsified BCI Report ‘masked identities’)

Had the psychologist known the 13,590 tests calls, allegedly carried out by BCI, could not terminate through the TEKELEC CCS7 monitoring system at Cape Bridgewater, his assessment of my mental state would have been somewhat different. He, too, might have been distressed if he had been aware Telstra misled and deceived him prior to him assessing my mental state.

In the same Senate Hansard, dated 24 June 1997, in which Lindsay White says he was told to “stop these people at all costs”, similar injustices COT case Sandra Wolfe experienced during a Mediation Process in 1997 are discussed. These injustices included her having a warrant executed against her by Telstra employees under the Queensland Mental Health Act (see pages 82 to 88, Introduction File No/9). Had Sandra not acted in the manner she did, it is possible she could have been lost in an institution for the insane. Addressing Telstra, Senator Schacht says:

“No, when the warrant was issued and the names of these employees were on it, you are telling us that it was coincidental that they were Telstra employees.” (p87)

Is this warrant issued under the Queensland Mental Health Act, against Sandra Wolfe, akin to the false information provided by Telstra to the clinical psychologist before he assessed my mental health? In my case, the consultation by this psychologist was not conducted in a private surrounding, but in the Richmond Henty Hotel’s saloon bar!

When Telstra’s lawyers (whom the government assured us COT cases would not be used in our arbitration) provided the witness statement prepared by this clinical psychologist, it was only signed by a lawyer Wayne Maurice Condon, from this legal firm Freehill Hollingdale & Page on 6 December 1994, and bore no signature, of the psychologist, Ian Jobin.

This never-ending saga

As I continue to write about all that really transpired, not just during my own government-endorsed arbitration but also during the other COT arbitrations, I am left floundering; I still struggle to understand why our arbitrations were conducted outside the agreed ambit of the arbitration procedures (see TIO Evidence File No 4-A to 4-B.  Every time I go back to finalise various parts of this combined COT story, and I re-read all the complex details that make up this whole, terrible situation that the Telecommunication Industry Ombudsman, the Arbitrator and his Resource Unit allowed us to struggle through, my anxiety levels instantly begin to rise alarmingly.

The situation gets worse, though, because I also find I am just struck with sheer unbelief that this happened in a democratic country like Australia; I seem to be unable to find the right words to finish off this dreadful saga. It seems that, no matter what I do, I just can’t find a way to adequately 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. Firstly, there are those who are now identified below, who worked with Telstra to carry out those still-unaddressed crimes. And secondly, there is Telstra, an organisation with so much power that it could stop any authority (including government authorities) from investigating those crimes, as the many stories are shown in the above menu bar so clearly show.

This is the story of a group of ordinary small-business people fighting one of the largest companies in the country. For years, the then-government-owned Telstra (in the early days called Telecom) refused to address the many phone problems affecting the ability of the COT Four to run their businesses, while telling them ‘No fault found.’

Our story shows:

  • how, when the COT Four presented their dispute to the government, they were manipulated, pressured and squeezed into an unfair and costly arbitration;
  • how Telstra and its legal defence team perverted the course of justice in the arbitration process by such dubious strategies as intercepting faxes and conversations (bugging) and failing to deliver crucial FOI documents (or delivering them months, even years, too late and often so highly censored that little intelligible remained). Telstra even destroyed documentary evidence and fabricated evidence;
  • how central points in my claim at arbitration were ignored by the arbitrator and how no amount of effort to have these points addressed bore any fruit;
  • how, in the course of all these travesties, the regulatory bodies – AUSTEL (for the government) and the TIO (for the carriers) – failed to exercise any control over Telstra, to the point where they could reasonably be seen as acting in concert.

Together, these travesties spell a breakdown of justice, way out of proportion to the issue we began with: people asking that their phone services be guaranteed to work to a reasonable standard, so they can reliably conduct their businesses.

What sort of faults are we are talking about? Customers, or potential customers, trying to ring in, only to get a deadline, or for the phone to ‘ring’ without being picked up, as if no one was there, or to be met by a recorded announcement saying the number is not connected at all. And when calls did connect, the connection dropped out, as might happen today on a mobile, but we are referring to landlines. Faxes also went missing in the network, or only blank sheets arrived.

Each COT member assumed, as most telephone users would, that Telstra’s skilled technicians would easily find and fix their phone faults; however, ‘No fault found’ was the constant refrain and the problems continued unabated throughout the course of our arbitrations and for years afterwards, with disastrous effects on our businesses. This seemed incomprehensible: everyone had a phone and the system is supposed to work for everyone. What was going on?

And why did it seem that everyone was protecting Telstra and turning a blind eye to unlawful behaviour?

  • Withholding important discovery documents in an arbitration procedure is unlawful;
  • Tampering with evidence in the arbitration is unlawful;
  • Relying on defence documents that are known to be flawed, in arbitration, is unlawful; Phone tapping of conversations without a warrant is unlawful.

Someone within Telstra must have authorised this criminal conduct.

Despite being promised the documents we needed if we agreed to arbitration, our FOI-requested documents have never been made available, and we still do not have those documents to this day.

In my case, the Schedules of Material received by the arbitration process does not list 42 separate sets of correspondence, which were faxed to the arbitrator’s office (some with attachments). Front Page Part One File No/1 shows the arbitrator’s secretary advised Tony Watson (of Telstra’s arbitration defence unit) that, on 23 May 1994, six of my claim documents were not received at the arbitrator’s fax machine. It is clear from my Telstra account that I was charged for those six faxes leaving my office, yet, when this matter was exposed, no one from the arbitrator’s office nor the TIO’s office allowed me to amend my claim so that these proven “non received” claim documents could be valued by the arbitrator in support of my claim.

These collusive acts destroyed normal life for me and my partner, Cathy. A secret, concealed report, prepared by the government concerning my valid complaints but withheld from the arbitrator, found at least one local Portland technician concealed, from other Cape Bridgewater customers and me, the true extent of our phone problems. Point 76 in this report states,

“One disturbing matter in relation to Mr Smith’s complaints of NRR [not receiving ring] is that information on other people in the Cape Bridgewater area experiencing the problem has been misrepresented from local Telecom regional manager to a more senior manager.” (See Manipulating the Regulator).

The fact that this person misled senior Telstra management concerning the truth of the real situation at Cape Bridgewater is serious enough. However, even worse is that when Telstra presented its arbitration defence of my claims to the arbitrator concerning the Cape Bridgewater problems, the sworn statements given under oath on these NRR issues were based on the incorrect information this Telstra employee gave management. Therefore, the arbitrator relied on false advice supplied by Telstra management, who were perhaps unaware they were submitting incorrect information (under oath) concerning the Cape Bridgewater telephone exchange.

That this Telstra employee’s disgraceful conduct was concealed by the government communications regulator during an arbitration process is serious enough, but had the arbitrator and I been advised on what the regulator had uncovered, we could have ensured this local Telstra employee’s witness statement was taken out of the arbitration process altogether. I have since proven this same Telstra employee person lied under oath in his witness statement, about another totally different matter altogether, yet the wording in the arbitrator’s award confirms he accepted this person’s statements.

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

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