Legal Bullying In Arbitration

"Legal bullying," also known as legal abuse or litigation abuse, occurs when someone weaponises the law, court systems, or legal threats to intimidate, control, or financially exhaust another person. It frequently appears in family, employment, and civil disputes.

Dr Gordon Hughes, leading up to the signing and on the day Ann Garms, Graham Schorer, and I signed our 21 April 1994 arbitrations, in conjunction with Warwick Smith, the first Australian Telecommunications Industry Ombudsman (TIO) and representative of the TIO office, used threats against us COT Cases: that if we did not adhere to the late alterations to our arbitration agreement and sign it by close of business that day, then as assessors and administrator to our operating assessment process they would not continue to assess our government-endorsed Fast Track Settlement Proposal, signed by us on 23 November 1993.

When both Dr Hughes and Warwick Smith refused to assist me in asking the Supreme Court to intervene and demand an explanation for why I was being threatened by Telstra during my arbitration, because I continued to assist the Australian Federal Police, this was yet another form of legal abuse during arbitration (a legal dispute).

 

On July 4, 1994, amidst the complexities of my arbitration proceedings, I confronted serious threats articulated by Paul Rumble, a Telstra representative on the arbitration defence team. Disturbingly, he had been covertly furnished with some of my interim claims documents by the arbitrator—a breach of protocol that occurred an entire month before the arbitrator was legally obligated to share such information. Given the gravity of the situation, my response needed to be exceptionally meticulous. I invested considerable effort in crafting this detailed letter, carefully selecting every word. In this correspondence, I made it unequivocally clear:

“I gave you 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.” (File 85 - AS-CAV Exhibit 48-A to 91)

When drafting this letter, my determination was unwavering; I had no intention of submitting any additional Freedom of Information (FOI) documents to the Australian Federal Police (AFP). This decision was significantly influenced by a recent, tense phone call I received from Steve Black, another arbitration liaison officer at Telstra. During this conversation, Black issued a stern warning: should I fail to comply with the directions he and Mr Rumble gave, I would jeopardise my access to crucial documents pertaining to ongoing problems I was experiencing with my telephone service.

Page 12 of the AFP transcript of my second interview (Refer to Australian Federal Police Investigation File No/1) shows Questions 54 to 58, the AFP stating:-

“The thing that I’m intrigued by is the statement here that you’ve given Mr Rumble your word that you would not go running off to the Federal Police etcetera.”

Essentially, I understood there were two potential outcomes: either I would obtain documents that could substantiate my claims, or I would be left without any documentation that could affect the arbitrator's decisions in my case.

However, a pivotal development occurred when the AFP returned to Cape Bridgewater on 26 September 1994. During this visit, they began asking probing questions about my correspondence with Paul Rumble, demonstrating a sense of urgency in their inquiries. They indicated that if I chose not to cooperate with their investigation, their focus would shift entirely to the unresolved telephone interception issues central to the COT Cases, which they claimed assisted the AFP in various ways. I was alarmed by these statements and contacted Senator Ron Boswell, National Party 'Whip' in the Senate.

As a result of this situation, I contacted Senator Ron Boswell, who subsequently brought these threats to the Senate's attention. This statement underscored the serious nature of the claims I was dealing with and the potential ramifications of my interactions with Telstra.

On page 180, ERC&A, from the official Australian Senate Hansard, dated 29 November 1994, reports Senator Ron Boswell asking 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 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)

On 21 November 2007, a thick envelope arrived under the Freedom of Information Act. Inside was something I had never seen before: AUSTEL’s original draft findings, dated 2–3 March 1994, covering the telephone faults at the Cape Bridgewater Holiday Camp from 1988 to 1994.

Reading those pages was like opening a time capsule — one that revealed just how hard the government regulator had struggled to extract information from Telstra, a corporation the government itself owned at the time. What I saw made it painfully clear that the arbitration process I had been pushed into never should have gone ahead.

The draft showed AUSTEL repeatedly admitting that Telstra had refused to supply the very documents needed to assess my claims. Their own words told the story:

• Point 43 (p.20): “As no fault report records remain in existence from Cape Bridgewater residents prior to this period, or these records have not been provided to AUSTEL, it is difficult to gauge the level of problems in the area.”

• Point 48 (p.22): “AUSTEL has been hampered in assessing Telecom’s dealings with Mr Smith by Telecom’s failure to provide files relating to Mr Smith’s complaints.”

• Point 71 (pp.28–29): “AUSTEL has not been provided with the documents on which the conclusion in this briefing summary were reached… It can only be assumed that they are contained within the documentation not provided to AUSTEL.”

• Point 140 (p.49): “AUSTEL’s investigation… has been hampered by Telecom’s failure to make available… the file specifically relating to the Pairs Gains Support investigation of the RCM.”

• Point 160 (p.55): “It is hoped that a number of issues in regard to the Cape Bridgewater RCM will be clarified when Telecom provides the documentation requested by AUSTEL.”

Those five points alone told me everything I had suspected for years: the government could not obtain the evidence needed to assess my case, yet they still allowed the arbitration to proceed.

And then came the confirmation that Telstra had been given the draft report in 1994, while I had been kept in the dark.

A transcript dated 22 September 1994, recorded an interview at the Commonwealth Ombudsman’s Office. On page 7, senior investigator John Wynack asked AUSTEL’s Bruce Matthews:

“What was the date the report was issued, the AUSTEL report?”

Matthews replied:

“The final report was April… The draft report was produced in March 1994, and Telecom received their copy then.”

Telstra received their copy. I did not.

That single fact changed the meaning of everything that followed.

Because the draft — — supported my claims. It showed the regulator knew Telstra was withholding evidence. It showed the regulator could not complete its investigation. It showed the regulator knew the Cape Bridgewater exchange was failing.

Yet I was pushed into arbitration without it.

Worse still, when the government reviewed my case again in 2006, they relied on the sanitised AUSTEL report — not the draft that Telstra had been given in 1994. The truth had been sitting in a filing cabinet for thirteen years while I spent more than $300,000 trying to prove faults the government had already established.

Allowing me to enter arbitration without the necessary documents was one breach of duty. Allowing me to spend hundreds of thousands of dollars trying to prove what they already knew was another.

AUSTEL had a statutory obligation to ensure the process was fair. Instead, they allowed an arbitration to proceed when they themselves could not obtain the evidence required for justice.

That is not oversight. It is an abuse of process.

Unfortunately, I did not receive a copy of the following findings AUSTEL’s Adverse Findings at points 2 to 212 until November 23, 2007, 12 years after the termination of my arbitration process. In simple words, the government had already validated my claims as early as March 4, 1994, six weeks before April 21, 1994, when I signed the arbitration agreement.

But despite this proof, I was still required to endure 13 months in a gruelling arbitration process that cost me well over $300,000 in professional fees to prove something the government had already established.