Blowing The Whistle
Ex parte “Ex parte” is a Latin phrase meaning “on one side only; by or for one party”. An ex parte communication occurs when a party to a case, or involved with a party, talks or writes to or otherwise communicates directly with the judge about issues in the case without the other parties’ knowledge. Under the Judicial Code of Conduct, judges may not permit or consider “ex parte communications” in deciding a case unless expressly allowed by law. This ban helps judges decide cases fairly, as their decisions are based solely on the evidence and arguments presented to the court, along with the applicable law. It also preserves trust in the legal and court system.
Both the TIO and his appointed arbitration resource unit withheld vital arbitration evidence from being investigated during the COT arbitrations.
The transcripts from the clandestine gathering conducted on March 22, 1994, indicate that the COT cases were not represented (refer to Open letter File No 54-A). Mr. Chalmers of Telstra, the author of the minutes, notably omitted points 4 and 5 from the record, with point 6 following point 3. The absence of points 4 and 5 raises significant concerns.
Dr. Gordon Hughes should not have permitted this secret meeting without the representation of the COT cases. In most, if not all, Western democracies, both the defendants and the claimants’ legal representatives are expected to be present in the judge’s chambers during such proceedings. In this instance, only the defendants, the Telecommunications Industry Ombudsman (TIO), and his special counsel attended, and they discussed alterations to the arbitration agreement.
The lack of documentation concerning points 4 and 5 in the Telstra transcript is particularly troubling. Were the changes to the arbitration agreement agreed upon during this secret meeting, and is this the reason for removing points 4 and 5?
It could also be that Telstra and the arbitrator, Dr Hughes, agreed that Telstra would first allow the arbitration resource unit access to all arbitration procedural material (AS-CAV Exhibits 589 to 647 - See AS-CAV 590, Chapter Seven). This allowed the arbitration resource unit to decide which documents Dr Hughes and the claimants could see and which would be discarded.
We will never know what was concealed from the COT cases during this clandestine gathering. Although the arbitration resource unit admitted, in writing 18 months after the first arbitration was finalised (see Open letter File No/45-H), to Dr Hughes, they concealed at least four relevant billing claim documents from the arbitration process.
The missing questions raised at points 4 and 5 in the minutes of this clandestine meeting may be linked to the arbitrator and his arbitration resource unit, allowing for the more adverse findings against Telstra to be covertly addressed outside the legal arena of the COT arbitration process. If addressing non-addressed arbitration issues had nothing to do with points 4 and 5, then what could have been so detrimental to the arbitration process that these points were excluded from these minutes?
Open letter File No 54-A shows that Telstra’s arbitration liaison officer, Steve Black, Telstra’s general counsel, David Krasnostein, Telstra’s lawyer from Freehill Hollingdale & Page, Simon Chalmers, TIO special counsel, Peter Bartlett, arbitrator Gordon Hughes, TIO Warwick Smith, and his secretary, Jenny Henright, attended this clandestine meeting. Except for Jenny Henright, all were lawyers; therefore, all knew this was an illegal gathering. What was so important about this meeting that only the arbitrator and defence attended it?
Why weren’t the COT Cases and their lawyers advised of this meeting?
Upon reading this segment Open letter File No 54-A) and the following Prologue page, you will come to the same conclusion many others have: arbitrator Dr Gordon Hughes should not have secretly met with Telstra (the defendants) prior to arbitration to discuss what rules in the arbitration agreement would be removed and which would remain. This clandestine meeting (without the claimants being represented) also covered how to protect – to exonerate – the arbitrator’s consultants from incurring any liability for negligence and to exempt the unit from being sued. Of course, this was to the detriment of the COT cases and our legal right to have recourse over the arbitration consultants if the resource unit was negligent in their duties. It will be apparent, after reading Open letter File No 54-A) and the Prologue page, that the arbitration resource unit was negligent during my arbitration process. I could not hold them to account for those actions due to those negligent clauses being removed from my arbitration agreement.
This is a serious issue and should have been addressed in 1995 when this was discovered. An investigation 20 years ago would have uncovered that Dr Hughes and Warwick Smith (TIO) used Telstra’s proposed arbitration agreement as the base document for the COT arbitration agreement rather than using an agreement drafted totally independently of Telstra, as the government (who endorsed the first four arbitrations) and the COT cases’ lawyers were promised. An investigation in 1995 (see Prologue Chapter Four) would have also uncovered Dr Hughes’ 12 May 1995 letter to Warwick Smith, which condemned the Telstra-based agreement as not a credible document to use in the arbitrations. However, he used it in my arbitration.
Before COT Cases were forced into arbitration without the necessary documents, we needed to support our claims. The arbitration agreement was altered after the first claimant, Maureen Gillan, signed the final copy and faxed it to our lawyers as the final agreement.
The COT Cases had reason to doubt the impartiality of those assigned to arbitrate their matters. Despite signing an arbitration agreement on 21 April 1994, justice was not forthcoming, as conveyed in a letter addressed to Telstra's CEO Frank Blount.
The letter and comments by Philippa Smith, the Commonwealth Ombudsman, File 80 AS-CAV Exhibit 48-A to 91 to Telstra's CEO, Frank Blount, dated 6 May 1994, were written because the Assessors to the COT process, Dr Gordon Hughes and Warwick Smith, would not provide all four of the COT Cases with information related to their arbitration.
This included who prepared the future arbitration and what changes were being made from the draft agreement the claimants first saw in January 1994. As Dr Hughes and Warwick Smith would not provide this information, the COT Cases asked for that information to be supplied under the FOI Act. As one of the four COT Cases, I wanted information on how the proposed Fast Track Arbitration Agreement was drafted, who drafted it after the four COT Cases were told it was to replace the Fast Track Settlement Proposal (FTSP) the COT claimants were operating under since 23 November 1995.
Even after we were forced under duress to sign the FTAP (the Agreement) on 21 April 1994, Dr Hughes (the arbitrator) and Warwick Smith (administrator) were still refusing the four COT Cases; all documents related to how the arbitration agreement had been drafted.
Why was this information concealed before the FTAP (the Agreement) was signed?
Because the arbitrator and administrator refused, we asked the Commonwealth Ombudsman to access this essential information under the FOI Act. In that letter to Frank Blount, Ms Philippa Smith stated:
"I would be grateful if you would now respond to the outstanding matters raised in my letter of 25 March 1994."
- Comment on my views that:
- it was unreasonable for Telecom to impose a condition for release of certain documents that the participants make further assurances that they will participate in the FTSP; and
- It was unreasonable for Telecom to require the participants to make the assurances while Telecom was considering the agreement related to the FTSP (the Agreement) and thereby denying the participants the opportunity to consider the rules that Telecom wished to have included in the Agreement.
Five Months After The Conclusion of My Arbitration
Between October 18, 1995, and October 4, 1997, I, with the assistance of Mr John Wynack, Director of Investigations, on behalf of the Commonwealth Ombudsman, demanded a copy of Telstra's arbitration file through the Freedom of Information (FOI) Act. This file would have unmasked those within Telstra who knew about the covert removals and changes to the arbitration agreement. Despite Telstra's claim that it had destroyed the arbitration file, Mr Wynack insisted in two of his letters to Telstra Home Page File No/82 that he did not believe it had.
Moreover, I took steps to obtain the same arbitration file held by the Telecommunications Industry Ombudsman (TIO), containing all variations to the arbitration rules. As the process administrator, the TIO was legally obligated to maintain a copy of all arbitration documents for six years, until 2002, after the statute of limitations expired, so that I could appeal my award. In response to my request for these arbitration records, John Pinnock issued a letter on January 10, 1996, stating:
"I refer to your letter of 31 December 1996 in which you seek to access to various correspondence held by the TIO concerning the Fast Track Arbitration Procedure. …
"I do not propose to provide you with copies of any documents held by this office." (See Open Letter File No 57-C)
My letter to Gareth Evans, dated January 4, 1996 (Open Letter File No/49), explicitly raised serious issues affecting all the arbitrations then in progress. Dr Hughes's letter to Laurie James, titled "Letter to Senator Evans" (see below), did not disclose to Laurie James that on May 12, 1995, he had already advised the first administrator involved in the first four arbitrations, including mine, that the agreement used in my arbitration was not credible. He indicated that for the arbitration process to remain credible, the arbitration agreement needed to be amended. I refer to that letter, attached as Exhibit (Open Letter File No 55-A).
Dr Hughes's letter to Laurie James note:
Why did Dr Hughes, the arbitrator, deceive Mr James, the President of the Institute of Arbitrators Australia, about the 24,000 documents that Telstra withheld from me? They withheld these documents until after they submitted their defence, leaving me with little time to prepare an adequate response. I reported this issue to Sue Hodgkinson, one of the arbitration consultants, who advised Warwick Smith in writing on 30 March 1995 that I was unable to submit the documents to support my claim and respond to Telstra's arbitration defence.“Mr Smith provided you a copy of a letter to Senator Gareth Evans dated 4 January 1996. I presume you require me to comment on those aspects of the letter which reflect upon my conduct as an arbitrator.
“The letter to Senator Evans is littered with inaccuracies. Some examples are:
contrary to Mr Smith’s assertion on page 3, his 24,000 (sic) documents were all viewed by me, Ferrier Hodgson Corporate Advisory, DMR Group Inc (Canada) and Lane Telecommunications Pty Ltd in accordance with the arbitration procedure.”
Mr Smith's assertions on page 4 that a technical expert, Mr Read refused to discuss technical information at his premises on 6 April 1995, is correct - in this regard.Mr Read was acting in accordance with his interpretation of my direction which prohibited him from speaking to one part in the ansence of the other party at any site visit. (Open letter File No/45-G and Open Letter File No/49)
Proof confirming Dr Hughes lied about these 24,000 documents to Laurie James is further addressed immediately below.
The Canadian and Australian technical consultants’ 30 April 1995 reports, under the heading “Cape Bridgewater Documentation,” state, “More than 4,000 pages of documentation have been presented by both parties and examined by us.” (See Arbitrator File Nos/29 and 30) These reports are covered in more detail on other pages.
At point 2.2 on page 4, in Dr Hughes’ final award, dated 11 May 1995, he notes, “In all, I have read in excess of 6,000 pages of documentary evidence submitted by the parties.” (See Prologue Evidence File No/9-A)
In simple terms, Dr Hughes' arbitration award indicates that, in determining his findings in my case, he considered 6,000 pieces of evidence demonstrating that he has been dishonest and should have been held accountable for those lies when they were presented to Laurie James.
I want to emphasise that this situation occurred thirty years ago, when my partner Cathy and I had the opportunity to rebuild our beloved holiday camp. If either Mr James or Senator Evans had received the truth regarding these 24,000 documents, my arbitration matters and the investigation into that portion of my claim would have revealed that the issues with my phone lines were still impacting the viability of my business. Had Telstra been compelled to address those problems back in 1996, Cathy and I would still own the Cape Bridgewater holiday camp.
On May 5, 1995—just six days prior to Dr Hughes issuing his award—he disregarded my request for additional time, even after being informed on April 30, 1995, by DMR & Lane (the arbitration technical consultants) that their report required several more weeks to complete. In point 2.23 of the DMR & Lane report, it was explicitly noted that they had investigated only 11% of my legally submitted claim documents. Despite receiving counsel from AUSTEL, the government communications regulator, regarding the public interest surrounding my ongoing phone and faxing issues—particularly the potential impact on countless other Australians experiencing similar problems—Dr. Hughes still opted to write the following:
“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.”
He also reiterated his previous instructions:
“any comments regarding the factual content of the Resource Unit reports must be received … by 5:00pm on Tuesday 9 May 1995” (See Arbitrator False Evidence File 1).
On 15 July 1995, two months after the arbitrator's premature announcement of findings regarding my incomplete claim, Amanda Davis, the former General Manager of Consumer Affairs at AUSTEL (now known as ACMA), provided me with an open letter to be shared with individuals of my choosing. This action underscores the confidence she placed in my integrity and professional character:
“I am writing this in support of Mr Alan Smith, who I believe has a meeting with you during the week beginning 17 July. I first met the COT Cases in 1992 in my capacity as General Manager, Consumer Affairs at Austel. The “founding” group were Mr Smith, Mrs Ann Garms of the Tivoli Restaurant, Brisbane, Mrs Shelia Hawkins of the Society Restaurant, Melbourne, Mrs Maureen Gillian of Japanese Spare Parts, Brisbane, and Mr Graham Schorer of Golden Messenger Couriers, Melbourne. Mrs. Hawkins withdrew very early on, and I have had no contact with her since.
The treatment these individuals have received from Telecom and Commonwealth government agencies has been disgraceful, and I have no doubt they have all suffered as much through this treatment as they did through the faults on their telephone services.
One of the striking things about this group is their persistence and enduring belief that eventually there will be a fair and equitable outcome for them, and they are to admired for having kept as focussed as they have throughout their campaign.
Having said that, I am aware all have suffered both physically and their family relationships. In one case, the partner of the claimant has become seriously incapacitated; due, I beleive to the way Telecom has dealt with them. The others have al suffered various stress related conditions (such as a minor stroke.
During my time at Austel I pressed as hard as I could for an investigation into the complaints. The resistance to that course of action came from the then Chairman. He was eventually galvanised into action by ministerial pressure. The Austel report looks good to the casual observer, but it has now become clear that much of the information accepted by Austel was at best inaccurate, and at worst fabricated, and that Austel knew or ought to have known this at the time.”
After leaving Austel I continued to lend support to the COT Cases, and was instrumental in helping them negotiate the inappropriately named "Fast Track" Arbitration Agreement. That was over a year ago, and neither the Office of the Commonwealth Ombudsman nor the Arbitrator has been succsessful in extracting information from Telecom which would equip the claimants to press their claims effectively. Telecom has devoted staggering levels of time, money and resources to defeating the claiams, and there is no pretence even that the arbitration process has attemted to produce a contest between equals.
Even it the remaining claimants receive satisfactory settlements (and I have no reason to think that will be the outcome) it is crucial that the process be investigated in the interest of accountabilty of publical companies and the public servants in other government agencies.
Because I am not aware of the exact citrcumstances surronding your meeting with Mr Smith, nor your identity, you can appriate that I am being fairly circimspect in what I am prepared to commit to writing. Suffice it to say, though, I am fast coming to share the view that a public inquiry of some discripion is the only way that the reasons behind the appalling treatent of these people will be brought to the surface.
I would be happy to talk to you in more detail if you think that would be useful, and can be reached at the number shown above at any time.
Thank you for your interest in this matter, and for sparing the time to talk to Alan. (See File 501 - AS-CAV Exhibits 495 to 541 )
Four months after the arbitrator Dr Hughes prematurely brought down his findings on my matters, and fully aware I was denied all necessary documents to mount my case against Telecom/Telstra, an emotional Senator Ron Boswell discussed the injustices we four COT claimants (i.e., Ann Garms, Maureen Gillan, Graham Schorer and me) experienced prior and during our arbitrations (see Senate Evidence File No 1 20-9-95 Senate Hansard A Matter of Public Interest) in which the senator notes:
“Eleven years after their first complaints to Telstra, where are they now? They are acknowledged as the motivators of Telecom’s customer complaint reforms. … But, as individuals, they have been beaten both emotionally and financially through an 11-year battle with Telstra. …
“Then followed the Federal Police investigation into Telecom’s monitoring of COT case services. The Federal Police also found there was a prima facie case to institute proceedings against Telecom but the DPP , in a terse advice, recommended against proceeding. …
“Once again, the only relief COT members received was to become the catalyst for Telecom to introduce a revised privacy and protection policy. Despite the strong evidence against Telecom, they still received no justice at all. …
“These COT members have been forced to go to the Commonwealth Ombudsman to force Telecom to comply with the law. Not only were they being denied all necessary documents to mount their case against Telecom, causing much delay, but they were denied access to documents that could have influenced them when negotiating the arbitration rules, and even in whether to enter arbitration at all. …
“Telecom has treated the Parliament with contempt. No government monopoly should be allowed to trample over the rights of individual Australians, such as has happened here.” (See Senate Hansard Evidence File No-1)
Karina Barrymore, the journalist at the Melbourne Herald Sun, wrote on 3 August 2016
To ensure that what happened to me — and to thousands of others — would not be erased, forgotten, or repeated.That purpose gave me strength.It gave me direction.It gave me a reason to keep going when everything else had been taken.And that purpose is what carries me into the next chapter.
A document that had been withheld suddenly appeared in a FOI release.A bureaucrat who once stonewalled me slipped and acknowledged something they shouldn’t have.A journalist who had ignored me for years finally asked for a meeting.A former Telstra technician reached out, saying, “I think it’s time someone knew what really happened.”
You cannot pretend the system works.You cannot pretend the regulators are independent.You cannot pretend the arbitration was fair.You cannot pretend the government acted in good faith.You cannot pretend the casualties were few.You become the keeper of a truth that the nation was never meant to know.
Below are three further examples in which the unaddressed arbitration issues persisted for 27 years after the completion of my arbitration.
23 June 2015: > Unions raise doubts over Telstra's copper network; workers using ... that when read in conjunction with Can We Fix The Can, which was released in March 1994, these copper-wire network faults have existed for more than 24 years.
9 November 2017: Sadly, many Australians in rural Australia can only access a second-rate NBN, as shown in this news article https://theconversation.com/the-accc-investigation-into-the-nbn-will-be-useful-but-its-too-little-too-late-87095
28 April 2018: This ABC News article is more of the same: NBN boss blames Government's reliance on copper for slow ...
Sadly, as the above shows, many Australians living in rural areas can only access a second-rate NBN. This wouldn’t have been the case if the Australian Government had ensured that the arbitration process it endorsed to investigate the COT cases’ claims of ongoing communication problems was conducted lawfully.
The following three Current Affairs YouTube videos expose similar COT-type phone complaints raised by our COT group in 1994. Twenty-seven years after the COT Cases exposed these problems during a government-endorsed arbitration process that was supposed to fix them, Australia still has an inferior NBN telecommunications network.
