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Chapter Twelve - Who Really Prepared the Arbitrator’s Award

Government Corruption. Corruption in the public service, where misleading and deceptive conduct has spuriously over more than two decades perverted the course of justice. 

 

Absent Justice - Who Really Prepared the Arbitrators 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

Absent Justice - Conflict of interest issues are complex matters

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.

[1]][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)

The Bell Canada Information that three documents folio N00005, N00006 and N00037 discuss although they were not numbered both COT Cases Ann Garms and I had requested requested Senator Ron Boswell access on our behalf. It was duting the time Senator Ron Boswell was seeking this information on Ann and my behalf that the Senator Found Telstra was threatening to proved these BCI tests because I was already assisting the Australian Federal Police with their investigations into the COT Cases privacy issues. 

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Absent Justice - My Story - Senator Ron Boswell

Threats made and carried out.

Page 180 ERC&A, from the official Australian Senate Hansard, dated November 29 1994, reports Senator Ron Boswell asking Telstra's legal directorate why were my FOI documents being withheld from me during my arbitration:

“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?” (Senate Evidence File No 31)

As I have reiterated throughout this website, the threats against me during the arbitration proceedings came to fruition, and the withholding of pertinent documents is deeply concerning. Regrettably, neither the Telecommunications Industry Ombudsman nor the government has investigated the detrimental impact of this malpractice on my overall submission to the arbitrator. Despite assisting the Australian Federal Police (AFP) in their investigation into the illicit interception of phone conversations and arbitration-related faxes, they never came to my aid.

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“Only I know from personal experience that your story is true, otherwise I would find it difficult to believe. I was amazed and impressed with the thorough, detailed work you have done in your efforts to find justice”

Sister Burke

“A number of people seem to be experiencing some or all of the problems which you have outlined to me. …

“I trust that your meeting tomorrow with Senators Alston and Boswell is a profitable one.”

Hon David Hawker MP

“…your persistence to bring about improvements to Telecom’s country services. I regret that it was at such a high personal cost.”

The Hon David Hawker MP

“Only I know from personal experience that your story is true, otherwise I would find it difficult to believe. I was amazed and impressed with the thorough, detailed work you have done in your efforts to find justice”

Sister Burke

“…your persistence to bring about improvements to Telecom’s country services. I regret that it was at such a high personal cost.”

Hon David Hawker

“I am writing in reference to your article in last Friday’s Herald-Sun (2nd April 1993) about phone difficulties experienced by businesses.

I wish to confirm that I have had problems trying to contact Cape Bridgewater Holiday Camp over the past 2 years.

I also experienced problems while trying to organise our family camp for September this year. On numerous occasions I have rung from both this business number 053 424 675 and also my home number and received no response – a dead line.

I rang around the end of February (1993) and twice was subjected to a piercing noise similar to a fax. I reported this incident to Telstra who got the same noise when testing.”

Cathy Lindsey

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