Chapter Eight - An Honest Arbitrator?
This government corruption must stop. The horrendous crimes they commit must stop. These unscrupulous criminals, corrupt politicians and the lawyers who control the legal profession in Australia must be brought to account.
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 bad-bureaucrats/manipulating-the-regulator/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 PDFCommercial 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 as the many exhibits in our download files show 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 exhibits in our download files 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)
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 to 4-B, the CCAS data (Introduction 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.
During our arbitrations on 21 March 1995, the Legal and Constitutional Reference Committee and Legislation Committee requested the COT members submit evidence to Committee Room 2S1 at Parliament House Canberra, confirming Telstra had intercepted our telephone conversations without our knowledge or consent. This submission by the COT cases formed part of the Telecommunications (Interception) Amendment Bill 1994. Before I provided this evidence to the committee, I talked with Detective Superintendent Jeff Penrose of the AFP, who was attending this meeting as an observer. I asked this AFP officer if providing this interception evidence to the committee would interfere with the present AFP investigations into my interception issues. Detective Superintendent Jeff Penrose advised it would not. During this committee meeting, the visibly distraught [COT case member from Ballarat Victoria] told of how he became aware that Telstra technicians had intercepted his telephone conversations. At the same time, he worked as a consultant providing confidential, highly personal counselling. Both the consultant (who I have not named here for obvious reasons) and also known to the government could hardly speak at this Committee meeting due to the stress Telstra had subjected us all before and during our arbitrations and mediation processes. My evidence and proof concerning interception are on record and confirm at least one Portland technician monitored and listened to my phone conversations during the period I had received several threats from Telstra.
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
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