Chapter Eleven - Pressure Applied To Arbitrator
Government Corruption. Corruption in the public service, where misleading and deceptive conduct has spuriously over more than two decades perverted the course of justice.
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?
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!
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?
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”. (SeeArbitrator 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?
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