ABSENT JUSTICE

Chapter 1 — No Fault Found

The words were always the same: “No fault found.”

They became the refrain that followed me through years of telephone failures, lost business and unanswered complaints.

In 1988, I bought the Cape Bridgewater Holiday Camp believing that hard work could make it successful.

Instead, I found myself running a business on telephone lines that could not be relied upon.

Calls failed. Lines went dead. Customers could not get through. Some were told that our number was not connected.

And every time I complained, the machinery of Telstra appeared to close ranks behind those three words: No fault found.

What I did not know then was that documents would eventually emerge showing that serious network problems had been recorded while I was being told there was nothing wrong.

A new exchange was installed, yet the problems continued.

The financial consequences were devastating. So were the consequences for my marriage, my family and my own state of mind.

I kept records because I had no other weapon.

Then I discovered that other businesses were suffering remarkably similar problems.

The telephone faults were real.

The question was becoming much more disturbing:

If the faults existed, why was the system so determined not to find them?

Chapter 2 — Casualties of Telstra

When five people tell the same story, perhaps the problem is not the people.

By 1992, I had discovered that I was not an isolated complainant.

Sheila Hawkins, Ann Garms, Maureen Gillen and Graham Schorer were experiencing their own battles with Telstra.

We became the Casualties of Telstra—the COT group.

We were ordinary business people confronting an organisation with vastly greater financial, technical and legal resources.

Our stories differed in detail, but the refrain was remarkably familiar: “No fault found.”

Austel became involved, and for a time we believed that government regulation might force the truth into the open.

Telstra assured us that its network was operating properly.

But evidence subsequently obtained through FOI raised questions about network error rates, fault detection and the information being provided to customers and regulators.

At Cape Bridgewater, even the systems intended to identify faults appeared to have their own problems.

Customers continued to report failures.

Telstra personnel themselves experienced difficulty contacting my business.

The evidence was beginning to accumulate faster than the explanations.

But something else was happening too.

We were no longer merely customers demanding a working telephone—we were becoming witnesses to a system that appeared increasingly unwilling to acknowledge what its own records were showing.

Chapter 3 — The Briefcase

Sometimes the most dangerous evidence is the evidence nobody intended you to see.

After yet another meeting in which I was told, in effect, to keep recording my faults, I returned to my office.

Then I found it.

A briefcase had been left behind by a Telstra employee.

Inside were documents relating to my telephone service.

What I discovered appeared to contradict the story I had been given for years.

Internal records indicated that Telstra knew about continuing service problems and that a network investigation should have been undertaken.

The documents appeared to show knowledge of problems that had never been properly acknowledged to me.

I copied what I could and passed the material to Graham Schorer before the briefcase was recovered.

Austel subsequently sought explanations and requested the documents.

Telstra's response concentrated on confidentiality and ownership rather than, in my view, resolving the questions raised by the contents.

For me, the significance was enormous.

Until then, I had been fighting to prove that something was wrong.

Now I had begun to see evidence of what was happening inside the organisation responsible for telling me that nothing was wrong.

The briefcase was not the end of the mystery.

It was the moment I began to understand that the real story might be hidden in the records.

Chapter 4 — Towards a Settlement Proposal

We thought the answer might finally be money—not a courtroom.

By the end of 1993, the COT group was pushing for a commercial assessment of the losses suffered by our businesses.

We wanted a process that would examine what had happened without turning the dispute into a conventional legal war.

Austel arranged for Bell Canada International to examine the technical issues.

The resulting BCI report was favourable to Telstra, concluding that its network met international performance standards and that it possessed the tools to detect customer faults.

But there was a problem.

The testing did not, in my view, properly reproduce the telephone path into my business.

I later discovered information that caused me to challenge the validity of the testing and the conclusions drawn from it.

Austel itself had expressed reservations about the BCI report and wanted its concerns attached to the material supplied to the COT assessors.

At the same time, the COT group was pressing politicians for a Senate inquiry.

The dispute was no longer merely commercial.

It was becoming a question of public accountability.

And then the process changed.

The settlement we had been promised began to disappear—and arbitration moved into its place.

Chapter 5 — Sold Out

We entered the process believing we were being offered a commercial assessment. We ended up facing arbitration.

In January 1994, the TIO announced the proposed assessor for the COT fast-track settlement process.

But critical discovery documents were still not reaching us.

Austel had expressed anger at Telstra's failure to provide material.

Senators were raising questions.

Yet nothing seemed capable of forcing the documents into our hands.

Then came the decisive blow.

The commercial assessment process was abandoned in favour of arbitration.

We had never wanted a legalistic, drawn-out contest.

We knew Telstra could deploy resources that none of us could match.

Yet we were told, in effect, that our alternatives were disappearing.

We signed the arbitration agreement.

Only later did questions arise about the origin of the arbitration rules themselves, including whether material prepared by Telstra's lawyers had influenced the process we had been told was independent.

The playing field was supposed to be level.

But one side possessed the money, lawyers, technical experts and access to information.

The other side possessed evidence—and an increasingly desperate determination to have it heard.

We had thought arbitration was the road to justice. We were about to discover what happens when the road itself is controlled by those with the greatest power.

Chapter 6 — Arbitration

Once arbitration began, evidence became the battlefield.

My claim depended upon thousands of pages of documents recording telephone faults, billing problems, lost calls and communications failures.

But documents did not always arrive where they were supposed to go.

On 23 May 1994, six claim documents were faxed to the arbitrator's office.

The records indicated that the faxes left my office and that I was charged for them.

Yet the documents did not reach the arbitrator.

I later discovered that the arbitrator's secretary had advised Telstra's arbitration defence unit that the documents had not arrived.

No one, however, allowed me to amend my claim so that the missing material could be valued.

This was not a trivial administrative inconvenience.

Those documents were part of my case.

At the same time, FOI documents continued to be delayed.

The longer information remained unavailable, the harder it became for me to challenge Telstra's version of events.

I was beginning to understand something terrifying about the process.

A case does not necessarily have to be defeated by disproving its evidence. Sometimes it is enough to make sure the evidence never reaches the decision-maker.

Chapter 7 — Telstra's Defence

Then came the beer.

Telstra's legal submission arrived in December 1994.

It contained a 29-page report claiming that the lock-up fault affecting my Exicom TF200 telephone had been caused by beer inside the telephone.

The explanation was astonishing to me because earlier testing had involved two different telephones on the same line and had indicated that the fault followed the line rather than the handset.

Then came the photographs.

The telephone appeared clean when it left my office.

The laboratory photographs showed something very different.

I began asking how a telephone that had supposedly contained wet and sticky beer could still have been wet after the fourteen-day interval before laboratory testing.

Later FOI documents revealed a second Telstra laboratory investigation.

That second investigation found that when beer was introduced into the telephone, it dried completely within forty-eight hours.

If that testing was accurate, it raised an obvious question about the first report.

I sought forensic examination of the evidence.

The arbitrator did not appoint my proposed forensic expert.

Then, months after the arbitration had ended, I received the second laboratory report.

The document appeared to provide the very evidence I had been seeking.

But by then the arbitration was over—and the evidence that might have changed everything had arrived too late.

Chapter 8 — My Award

The award was coming. The evidence was not.

On 11 May 1995, the arbitrator was due to hand down his decision.

Before that came the DMR/Lanes technical report and the Ferrier Hodgson Corporate Advisory financial report.

The technical report acknowledged serious problems with the RCM system carrying my services.

It recorded severe error levels and concluded in several places that the service had been less than reasonable.

Yet its final assessment of the gold phone reached a very different conclusion.

The report said that the service had been reasonable.

There was also a fundamental problem with the scope of the assessment.

Hundreds of faults had been recorded during my claim, yet only a fraction were investigated.

The report even stated that a comprehensive log of my complaints did not appear to exist.

I knew that was wrong.

I had spent years creating that log.

And while I was trying to understand the technical report, the financial assessment was also reducing my claimed losses.

Then came the discovery that some billing issues the technical team had intended to address were absent from the final report.

The contradictions were becoming impossible for me to ignore.

The award was about to declare the case finished—but the evidence was beginning to suggest that the case had never been fully examined.

Chapter 9 — Aftermath

The arbitration ended. The evidence did not.

Five months after the award, Austel came to Cape Bridgewater and examined six bound volumes of evidence that had not been properly addressed during the arbitration.

The material concerned, among other things, Telstra's incorrect charging.

I believed this evidence was central to my claim.

Austel examined it and then allowed Telstra to respond.

But I was not given an equivalent opportunity to challenge Telstra's response.

I eventually obtained that response through FOI years later.

By then, the opportunity to confront the assertions had long disappeared.

The billing problems themselves continued.

The Commonwealth Ombudsman's records later documented calls made to my 1800 number and revealed discrepancies between calls actually made and calls charged.

The evidence showed that incorrect charging continued well after the arbitrator had delivered his award.

Then came another discovery.

Telstra documents indicated senior management were concerned that rural network performance might not meet proposed standards.

Other internal correspondence showed that Telstra's outside lawyers were being involved in dealing with serious COT complaints.

The more documents I obtained, the less the original story seemed to make sense.

The arbitration had produced an answer—but the documents arriving afterwards were beginning to ask an entirely different question: what had the arbitration failed to see?

Chapter 10 — And the Faults Continue

If the problem was over, why did the problems continue?

The telephone faults did not magically disappear when the arbitrator signed his award.

Billing problems continued.

Faxes continued to disappear or arrive incomplete.

Calls were still being incorrectly charged.

And evidence continued to emerge long after the arbitration had supposedly settled everything.

Then came the discovery of further information concerning the Exicom T200.

An internal Telstra document indicated that the company knew moisture could cause problems with these telephones.

Yet the evidence suggested that such equipment could still be deployed in areas where moisture was a foreseeable problem.

Cape Bridgewater was exactly such an environment.

The significance was not simply that a telephone could malfunction.

It was that the evidence appeared capable of explaining problems that had previously been attributed to other causes.

Then there were the continuing questions about the arbitration itself.

Missing documents.

Late FOI releases.

Unanswered complaints.

Technical assessments that did not cover the full claim.

And evidence that appeared to arrive only after the decision could no longer be challenged effectively.

The faults were continuing—but by now I was beginning to suspect that the most serious fault was not in the telephone system at all.

Chapter 12 — Summing Up the Years

Twenty years later, I was still looking for the same thing: an answer.

The COT dispute had moved through Telstra, Austel, the TIO, arbitration, the courts, FOI processes, government departments and eventually the Senate.

At every stage I hoped that someone would take the accumulated evidence, put it together and ask the obvious questions.

Why were important documents withheld?

Why did some arrive months or years too late?

Why were parts of my claim not assessed?

Why were missing faxes not properly investigated?

Why did technical reports contain findings that appeared inconsistent with their own underlying observations?

And why did evidence continue emerging after the arbitration had ended?

The Senate's investigation eventually found that Telstra had deliberately withheld important documents or provided them too late in the five test cases examined.

That finding was significant.

But the benefit was not extended to all remaining COT claimants.

For me, the central injustice remained.

The documents that might have strengthened my case had arrived too late.

The questions that should have been answered during arbitration were still being asked years afterwards.

And some of the records that could have explained how the process itself had been created were said to have disappeared.

After all those years, the question was no longer whether I had suffered a telecommunications failure—it was whether the machinery established to deliver justice had failed me as well.

Chapter 13 — Conflict of Interest

Independence is not something an arbitrator can simply claim. It has to be capable of surviving scrutiny.

Years after the arbitration, documents caused me to examine more closely the relationships and conduct surrounding the process.

Among the issues was the role of Dr Gordon Hughes, the arbitrator.

There were questions concerning communications, disclosure, the handling of documents and the relationship between the arbitrator and people connected with the COT proceedings.

One particularly troubling issue concerned the missing arbitration faxes.

Evidence indicated that documents I had faxed to the arbitrator had not reached him.

I later came across evidence suggesting that Dr Hughes had disclosed a faxing problem to Graham Schorer but not to the other COT claimants.

If that account is correct, it raises a profound question.

Why was information potentially relevant to the integrity of the arbitration not disclosed equally to all parties?

There were also the 24,000 FOI documents released late in the process.

Dr Hughes later told the Institute of Arbitrators that the documents had all been viewed by him and the technical and financial advisers.

I questioned how that could have been possible given the circumstances and timing of their release.

The questions became increasingly uncomfortable.

Yet uncomfortable questions are precisely why independent processes exist.

Because when a claimant begins asking whether the arbitrator was truly independent, the burden should not fall upon the claimant simply to trust.

It should fall upon the process to prove that it deserves to be trusted.

And that leaves the final question at the heart of Absent Justice:

Was I defeated by the evidence—or was the evidence defeated before it ever had a fair chance to be heard?