Chapter Five

Absentjustice.com Chapter 5 Fraudulent conduct is a work in progress, last edited April 2024.

 

Bribery and corruption in the seat of arbitration in Australia during the COT Cases arbitrations cut deep into the rule of law.

Part 1

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 since their decisions are based only on the evidence and arguments presented to the court and 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 22 March 1994 transcripts of a clandestine gathering, where the COT cases were not represented (see Open letter File No 54-A), shows Telstra’s Mr Chalmers, the author of the minutes, has left out points 4 and 5. Point 6 follows point 3. Where are points 4 and 5?

This further proves that Dr Gordon Hughes should have never allowed this secret meeting to occur without the COT cases being represented. Most, if not all, Western democracies would expect the defendants and their lawyers to be present in the judge’s chambers. In this case, in secret with the arbitrator, the defendants, the TIO and his special counsel. The missing discussion material or questions raised at points 4 and 5 may well be why the parties present agreed to Telstra lawyers drafting the agreement instead of the independent arbitration agreement the government and claimants were assured would be used. It could also be where 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 would be allowed to 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."

1. 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 they had destroyed this arbitration file. 

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 [sic] 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)

Questions on Notice (1)

The second-appointed TIO continued where the first left off

Although we address this 24 October 1997 letter from the TIO to Ms Pauline Moore (secretary to the Senate Environment, Recreation, Communications and the Arts legislation committee) elsewhere on absentjustice.com, I have linked it to this other sinister set of ill deeds as discussed here in Part 1, Part 2 and Part 3 → Chapter 5 Fraudulent conduct

John Pinnock (TIO) wrote a CONFIDENTIAL letter in response to the Senate Committee's request for his questions to be given under Notice. He confidently made the following statement in the letter to answer the questions.

“The COT Arbitration Procedures contain provisions relating to the confidentiality of the proceedings, which bind the parties. Those provisions also bind the Arbitrators, the Resource Unit, the Special Council and the TIO in my role as Administrator. …

“Accordingly, I ask that the answers given below to the questions on notice be treated as confidential by the Committee and not be published. …

“9.      Yes, from time to time I have received complaints from foundation COT members, concerning a range of matters, including alleged non-compliance with the rules of the Fast Track Arbitration Procedures by Telstra and/or the Arbitrator and/or the Technical and Accounting Resource Unit. …

“10.    Yes, I have refused to provide COT members with a copy of Telstra’s Preferred Rules of Arbitration. A copy of this document was not provided because it was of historical interest only, and the COT members did not advance any argument as to why it was relevant to their arbitration.” (See Senate Evidence File No 14)

The TIO’s insistence that the agreement was not provided to the COT claimants because: “it was of historical interest only, and the COT members did not advance any argument as to why it was relevant to their arbitration” is a misrepresentation of the truth – to hide the fact that it was Telstra’s arbitration agreement that was used and to protect Telstra, to the detriment of the claimants.

It is evident from Mr Pinnock's letter that he deliberately concealed the fact that the Arbitration Agreement he was refusing to supply the COT Cases had been manipulated (tampered with) after the claimants and their legal representatives had agreed to the unchanged version of the Arbitration Agreement. In other words, John Pinnock misled and deceived the Senate Chair by withholding the fact that the COT Cases had a justified reason for seeking the document he had refused to provide.

As of April 2024, the requested arbitration file, which I had initially requested from the arbitration administrators prior to agreeing to the arbitration, remains outstanding. Despite repeated requests, the file has not been made available for review. Further, even my legal representatives from Law Partners (Melbourne) have sought access to the file during my pending arbitration appeal period but to no avail. The absence of this file is hindering my ability to pursue a just resolution.

 

Part 2

Hiding behind a tainted confidentiality agreement - section two

“Mr Bartlett [TIO Special Counsel] stated that he was unhappy that Telecom did not appear prepared to allow his firm an exclusion from liability. …

“Mr Smith [TIO Warwick Smith] stated that he thought it was reasonable for the advisers to incur some liability, and that the only matter left to be negotiated on this issue was the quantum of the liability caps.

“Mr Black [Telstra] said that he thought the liability caps proposed by Telecom in the amended rules were already reasonable.” (See Open letter File No 54-A)

 

Points 4 and 5

The fact that Open letter File No 54-A shows the author of these minutes has left out points 4 and 5, i.e., point 6 follows point 3, is of great concern. Where are points 4 and 5? 

What information was initially exposed in those two points that prompted Telstra’s lawyers to remove them from the minutes the arbitrator would have received or composed his own? (see Open letter File No 54-A. 

The TIO (administrator to the arbitrations) Telstra and the arbitrator have refused to provide those removed clauses even though the Commonwealth Ombudsman sought that information on my behalf between October 1995 and October 1997.

I reiterate that Telstra, the TIO, and the arbitrator are stating that the confidentiality clauses in the arbitration allow them not to disclose anything about the conduct of our arbitrations to the claimants and the public. 

This further proves that Dr Gordon Hughes should have never allowed this secret meeting to occur without the COT cases being represented. Most, if not all, Western democracies would condone allowing the defendants and their lawyers to be present in the judge’s chambers (arbitrator’s office). The missing discussion material or questions raised at points 4 and 5 may well be why the parties present agreed to Telstra lawyers drafting the agreement instead of the independent arbitration agreement the government and claimants were assured would be used. It could also be where Telstra and the arbitrator, Dr Hughes, agreed and 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 Nine). This allowed them to decide which documents Dr Hughes would see and which would be discarded (see also page 4 here, which shows Telstra’s Steve Black wrote to Warwick Smith on 24 July acknowledging the resource unit would be allowed to vet which documents Dr Hughes would see and which he would not.

We will never know what was concealed from the COT cases during this clandestine gathering. However, in writing, Ferrier Hodgson Corporate Advisory admitted to Dr Hughes that they concealed at least four relevant billing claim documents from the arbitration process.

The TIO has, to date, declined to explain what circumstances occurred to change this. Who pressured the TIO to allow the advisors to be exonerated from all liability in relation to our arbitrations? Why would the TIO special counsel be:

“unhappy that Telecom did not appear prepared to allow his firm and exclusion from liability”?

Why did it not occur to the TIO or the arbitrator that removing the directions regarding liability would allow complacency to creep into the arbitration process? This is precisely what our  absentjustice.com pages show happened.

Had COT cases been represented at this hearing (as we were legally supposed to be), we would have been fully aware prior to 21 April 1994, the day we signed this document, that our rights to fair arbitrations were going to be violated.

Ann Garms, Graham Schorer, and I only found out after our arbitrations had been concluded that these exonerated consultants had been given a secret charter by Warwick Smith with the approval of Telstra's arbitration defence officer, Steve Black, to vet all of the arbitration material going to the arbitrator, Dr Gordon Hughes. They were allowed to decide on what the arbitrator viewed and then passed onto us three claimants. 

Hiding behind a tainted confidentiality agreement - Part three

Although the 19th April 1994 Arbitration Agreement issue has been addressed elsewhere on absentjustice.com, it is important to link it here to the issue when the arbitrator's secretary faxed a copy of the FTAP Agreement to lawyers, Mr Goldberg and William Hunt. Mr Hunt was seeking a legal opinion on the agreement before Graham Schorer and I were to sign it on 21st April 1994.  The following three clauses are included on page 12 of the version of the agreement faxed by the arbitrator's secretary:-

Clause 24: Neither the Administrator nor the Arbitrator shall be liable to any party for any act or omission in connection with any arbitration conducted under these Rules save that the Arbitrator (but not the Administrator) shall be liable for any conscious or deliberate wrongdoing on the Arbitrator’s own part.

Clause 25: The liability of Ferrier Hodgson and the partners and employees of Ferrier Hodgson for any act or omission in connection with any arbitration conducted under these rules (other than in relation to a breach of their confidentiality obligations) shall be limited to $250,000 jointly.

Clause 26: The liability of DMR Group Australia Pty Ltd and the directors and employees of DMR Group Australia Pty Ltd for any act or omission in connection with any arbitration conducted under these rules, other than in relation to a breach of their confidentiality obligations) shall be limited to $250,000 jointly.

In the agreement presented to the COT claimants for signing two days later, on 21st April 1994, clauses 25 and 26 were removed and only some of the wording was added to clause 24

The final version of Clause 24 reads: 

“Neither the Administrator, the Arbitrator, the Special Counsel, a partner or employee of the legal firm of which the Special Counsel is a partner, a member of the Resources Unit, Ferrier Hodgson or a partner or employee of Ferrier Hodgson, DMR Group Australia Pty Ltd shall be liable to any party…”

Clause 24 now had a different meaning to that presented by the original three separate clauses and it freed Peter Bartlett and Minter Ellison from any risk of being sued for misconduct in their role as Legal Advisors to the process and thereby provided no incentive for them to ensure the COT claimants were involved in a fair and just process.

The altered clause 24 also has the original $250,000 liability cap against FHCA and DMR removed from the Arbitration Agreement faxed to Mr Goldberg and William Hunt on 19th April 1994.

This letter in June 1994, from Telstra’s Arbitration Liaison Officer to the TIO Special Counsel, who had been exonerated from all liability for his part in the first four COT arbitrations, included the new version of the arbitration agreement that would be used for the next 12 COT claimants. Point 11.2 of this new agreement states that

“The liability of any independent expert resource unit used by the arbitrator, for any act or omission on their part in connection with the Arbitration, shall be limited to $250,000.00″.

Thus, a few months after the $250,000 liability caps had been removed from my arbitration agreement, they were reinstated into the agreement for the remaining 12 COT claimants. Why were the claimants NOT advised of the reinstatement of the liability clauses? Why were we not offered the opportunity to go back to the original agreement that the arbitrator’s secretary had faxed to Alan Goldberg and William Hunt (our lawyers) as the approved final agreement? Why were the three claimants (including me) forced to continue with an arbitration agreement that allowed the Resource Unit to be safely exonerated from all liability, YET in the agreement used by 12 other COT claimants; they were mandated to conduct those arbitrations within the law? Three COT claimants, Graham Schorer, Ann Garms and I, were discriminated against without question. Exhibit Hacking-Julian Assange File No/42 is from the TIO’s Standard Arbitration Rules used for other COT-type claims against the Telstra Corporation. Liability is covered in Rule 31, which states:

“The liability of any independent expert used by the Arbitrator is limited to $250,000 for any act or omission on their part in connection with the Arbitration”.

This means that any Australian citizen who enters into a TIO-administered arbitration could sue any independent expert used by the arbitrator to the limit of $250,000 “for any act or omission on their part in connection with the Arbitration”. Graham Schorer and I were not afforded these same entitlements. This was, in fact, illegal as well as discriminatory. That the defendants (Telstra) in arbitration were able to discuss with the official administrator of the process (in this case, the TIO) whether certain discovery documents or pieces of evidence should be released to the arbitrator and even whether they should be released at all, shows just how much control the defendants (Telstra) had over the administrator.

If this removal of the $250.000.00 liability caps for one section of the COT group and not all COT cases was not criminal discrimination by Australia's Establishment of the worst possible kind, what is?  

Maureen Gillan was the first of the four COT Cases to sign her arbitration agreement with 10.2.2, 24, 25 and 26 firmly in place. COT Cases Ann Garms, Graham Schorer, and I advised our legal advisers that Maureen Gillan had signed her agreement. Our lawyers asked the arbitrator's office to fax a copy of the agreement that Maureen had signed. Our lawyers compared the faxed arbitration agreement with Maureen's signed agreement, advising us to do the same.

I accepted the removal of 10.2.2 as a compromise after considering it was not worth fighting over. 

The minutes of this secret meeting with Steve Black (Telstra's arbitration officer), Telstra's Mr Krasnostine (legal directorate), Dr Hughes (the arbitrator), Peter Bartlett (TIO Counsel) show this meeting discussed alterations to the arbitration without the claimants being represented. Telstra's transcript of this meeting notes at point six that:

“Mr Bartlett [TIO Special Counsel] stated that he was unhappy that Telecom did not appear prepared to allow his firm an exclusion from liability. …

“Mr Smith [TIO Warwick Smith] stated that he thought it was reasonable for the advisers to incur some liability, and that the only matter left to be negotiated on this issue was the quantum of the liability caps.

“Mr Black [Telstra] said that he thought the liability caps proposed by Telecom in the amended rules were already reasonable.” (See Open letter File No 54-A)

The fact that Warwick Smith stated: "he thought it was reasonable for the advisers to incur some liability, and that the only matter left to be negotiated on this issue was the quantum of the liability caps,  shows the liability caps were always supposed to have been in our arbitration agreement the same agreement that Maureen Gillan signed. 

 Since the conclusion of my arbitration, all parties, including Telstra, the arbitrator, Peter Bartlett and TIO Warwick Smith, are using the confidentiality agreement (attached was attached to the altered agreement) as the reason they will not discuss the secret alterations to clauses, 24,25 and 26 and the other unlawful conduct that festered all the arbitrations. 

On April 12, 1994, Telstra received a letter from Dr. Hughes, which was addressed to Peter Bartlett, TIO's Special Counsel. This letter, numbered FOI folio A59256/7 and available for reference in Open letter File No 54-B, indicates that the remaining three COT Cases had yet to sign their arbitration agreements. Notably, the letter bears a Telstra FOI folio number, implying that the arbitrator and Telstra had already established a system to correspond with each other regarding the COT arbitrations. This system, however, failed to copy that information to the COT claimants, as mandated by the arbitration procedures. The letter discusses the same exoneration liability caps in the Arbitration Agreement that Dr. Hughes tried to include during the secret arbitration meeting on March 22, 1994, as detailed in Open letter File No 54. This fact highlights the ongoing efforts of Telstra and the arbitrator to arbitrate the COT cases in a manner that did not accurately reflect the procedural guidelines.

This letter Open letter File No 54-Bdiscusses overcoming the issue that one of the four COT cases (Maureen Gillan) had already signed the arbitration agreement on 8 April 1994. This version was the agreement that Senators Richard Alston and Boswell and all four COT cases and their lawyers agreed to. But now, John Rundell’s arbitration resource unit wanted to be exonerated from all liability for any act or omission concerning the remaining three arbitrations. They were removing the $250,000 liability caps from the original agreed-to agreement, drawing any incentive for the resource unit to act responsibly towards the three remaining claimants.

As our Open letter File No/45-A to 45-I and File No/46-F to 46-J show, this is what happened: the arbitration resource unit withheld some of the essential relevant documents from my arbitration process, aware that they could not be sued for that unacceptable conduct.

 

Part 3

Being forced to sign an arbitration agreement without the necessary documents to prove your claim is a terrible situation, but being forced to sign it after it had been altered to protect only the TIO Legal Counsel and the arbitrator's arbitration resource unit shows how much disregard the arbitrator and administrator had for the COT Cases. 

They [Telstra] have defied the Senate working party. 

On 23 March 1999, after most COT arbitrations had been finalized and business lives ruined due to the hundreds of thousands of dollars in legal fees to fight Telstra and a very crooked arbitrator, the Australian Financial. Review reported on the conclusion of the Senate estimates committee hearing into why Telstra withheld so many documents from the COT cases: 

“A Senate working party delivered a damning report into the COT dispute. The report focused on the difficulties encountered by COT members as they sought to obtain documents from Telstra. The report found Telstra had deliberately withheld important network documents and/or provided them too late and forced members to proceed with arbitration without the necessary information,” Senator Eggleston said. “They [Telstra] have defied the Senate working party. Their conduct is to act as a law unto themselves.”  

 

Eggleston, Sen Alan – Bishop, Sen Mark – Boswell, Sen Ronald – Carr, Sen Kim – Schacht, Sen Chris, Alston and Sen Richard) 

Being forced to sign an arbitration agreement without the necessary document to prove your claim is a terrible situation, but being forced to sign it after it had been altered to protect only the TIO Legal Counsel and the arbitrator's arbitration resource unit shows how much disregard the arbitrator and administrator had for the COT Cases.

My many letters to John Pinnock between June 1995 and August 1998 discuss the failure of the COT arbitrations. I had not been aware of the covert 22 March 1994 meeting, which discussed the removal of the $250,000 liability caps and exonerating Peter Bartlett (see Part 1 above). This meeting was orchestrated a month before the period we COT Cases were forced to sign our arbitration agreements, unaware that clauses 24 had been changed and clauses 25 and 26 removed. 

This changing of the arbitration agreement to suit the TIO legal counsel and the arbitration resource unit was not agreed to in writing at any by the COT Cases and/or their legal advisors on the day we signed that agreement. No official ammendmant was made in writing as an attachment to the 21 April 1994 signed Arbitration Agreement and then added to the agreement so that it became part of the agreement.

The alterations had already been removed, with us three COT Cases being told of any further delay in signing our arbitrations; Telstra had made it clear they would walk away from the process altogether. 

Part 3 continues - A Secret Deal.

Three months after we COT Cases had literally been forced to sign our altered arbitration agreement, Telstra’s Arbitration Liaison Officer wrote to Warwick Smith (TIO) on 11 July 1994 (refer to File 590 - AS-CAV Exhibits 589 to 647) stating:

“Telecom will also make available to the arbitrator a summarised list of information which is available, some of which may be relevant to the arbitration. This information will be available for the resource unit to peruse. If the resource unit forms the view that this information should be provided to the arbitrator, then Telecom would accede to this request”. 

The statement in Telstra’s letter, “if the resource unit forms the view that this information should be provided to the arbitrator,” confirms that both the TIO and Telstra were aware that the TIO-appointed resource unit had been assigned to vet most, if not all, the arbitration procedural documents en route to the arbitrator. If the resource unit decided a particular document was irrelevant to the arbitration process, it would not be passed on to the arbitrator or other parties. This particular secret deal may be linked to the removal of points 4 and 5 in the minutes of the clandestine pre-arbitration meeting discussed in Chapter 1 above.

Warwick Smith had no legal jurisdiction (authority), even as the process administrator, to change any part of the process until all parties had agreed in writing. This was a very serious issue.

As shown throughout absentjustice.com, the TIO did NOT have the authority to introduce a separate deal into a process conducted according to a written legal agreement. On page 5 of the Commercial Arbitration Act 1984, under Part II – Appointment of Arbitrators and Umpires (see Open Letter File No/21

6. 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. No written agreement exists, seen by me, that allows a second arbitrator to determine what information the first arbitrator will see. It is interesting to collate a number of covert situations set up by key players in the COT arbitrations and mischievously concealed under the arbitration agreement confidentiality clauses, even though those events took place before the confidentiality agreement was signed. In their 2 August 1996 communication to the arbitrator (copied to the TIO), the resource unit admitted to concealing relevant documents pertaining to my billing issues from the arbitrator during the course of my arbitration. Neither the TIO nor the arbitrator has ever addressed this serious matter.

So not only were the COT Cases forced into arbitration without the necessary documents needed by them to fully prove their claims, they were pressured/forced to accept the covert alterations to the COT arbitration agreement where clauses 25 and 26 were removed and clause 24 altered (to the COT Cases detriment) before they signed it, threatened that if they did not sign it both Dr Hughes (the arbitrator) and Warwick Smith (the administrator) would not continue with the already signed Fast Track Settlement Proposal (FTSP). Then, just three months later, after the COTs had been forced to abandon the FTSP, a further change to this already altered arbitration agreement was made (to the detriment of the COT Cases), where relevant arbitration-related documents were to first be released to the arbitration consultants for their assessment. If they thought these documents were of value to the arbitration, that information would be forwarded to the arbitrator.

Why have the COT Cases been made to live with such a disaster for twenty-eight years?

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