The Secret Deal
11th July 1994: Steve Black (Telstra's arbitration liaison officer) writes to Warwick Smith (the arbitration administrator), 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 Mr Black’s letter: “If the resource unit forms the view that this information should be provided to the arbitrator”, confirms both Warwick Smith and Mr Black were fully aware that the TIO-appointed Resource Unit, were secretly assigned to vet most, if not all, the arbitration procedural documents en route to the arbitrator. Therefore, if the resource unit decided a particular document was not relevant to the arbitration process, it would not be passed to the arbitrator or the other parties. This means the arbitrator did not control the arbitration process. (Refer to File 590 → AS-CAV Exhibits 589 to 647)
Page 5 of the Commercial Arbitration Act 1984, under Part 11 – Appointment of Arbitrators and Umpires 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.” ( Refer to File 193-B GS-CAV Exhibit 155 to 215)
The FTAP agreement, signed by Ann Garms, Maureen Gillan, Graham Schorer, and me, was signed between 8 and 21 April 1994 and mentions only one arbitrator. We have never seen any written agreement that allows a second arbitrator to determine what information the first arbitrator will see.
MOST IMPORTANT
I want to reiterate the seriousness of John Pinnock's concealment of my arbitration file. This situation could significantly alter the course of my life and that of my partner, Cathy, especially if I had presented this information to an appeal judge. The liability aspects must have been clearly defined in the arbitration agreement. While I have already mentioned my Law Partner and the pending appeal, it is important to reiterate this point below.
In October 1995, as I was entangled in the complexities of my pending arbitration appeal, the Law Partners of Melbourne provided clear directions: I needed to secure access to Telstra’s arbitration file. This critical information could be obtained from Telstra, the Telecommunications Industry Ombudsman, or the Commonwealth Ombudsman.
During two intensive days spent alongside Law Partners poring over a myriad of arbitration documents, we were on a mission to uncover evidence that could bolster our case against Dr Hughes's award. During our discussions, we identified the removal of the $250,000 liability caps in clauses 25 and 26 of the arbitration agreement. We considered these clauses crucial leverage—an opening to effectively challenge the decision and tilt the scales in our favour.
Meanwhile, my accountant, Derek Ryan, uncovered unsettling information. He learned that Ferrier Hodgson Corporate Advisers, the firm assigned to Dr Hughes, had submitted only a partial report of their findings. Alarmingly, significant portions of this report had been deliberately omitted at Dr Hughes's behest.
Our investigation revealed clear evidence that DMR & Lane Telecommunications Pty Ltd had failed to address the entirety of my claim materials, evaluating only a meagre 11 per cent of what I had submitted. Law Partners believed that, since clauses 25 and 26 specifically contained liability provisions that allowed me to sue both Ferrier Hodgson Corporate Advisers and DMR & Lane for negligence, leveraging these clauses was our most promising strategy.
Challenging Dr Hughes or the Telecommunications Industry Ombudsman was an unthinkable prospect for many, as both parties wielded the confidentiality agreement like a shield, obscuring the identities of those who authorised the removal of the liability caps. Moreover, why I was barred from invoking these clauses remains a mystery. It became evident that shortly after the government discovered Dr Hughes's oversight—merely three months into the COT arbitrations—swift action was taken to reinstate the liability caps in the arbitration agreements of the remaining twelve COT cases.
Who Paid Grant Campbell?
10th January 1994: This TIO document (File 56-B - Open Letter File No/56-A to 56-D) confirms that Grant Campbell was handling my related FTSP and (Ferrier Hodgson Corporate Advisory) the TIO-appointed Resource Unit correspondence to Telstra on behalf of the TIO.
I was never informed before his arbitration that Grant Campbell had been seconded from Telstra or that he had defected back to Telstra, all within a twelve-month period. The following exhibits confirm that an unhealthy relationship existed between the TIO office and Telstra during Alan's arbitration period.
Interestingly, the 1993/94 TIO Annual Report does not list Mr Campbell as having worked for the TIO office, even though Mr Campbell held a senior managerial position with the TIO office. Please consider the following points:
- TIO documents dated 9 February 1994 (File 55-B Open Letter File No/56-A to 56-D confirm that Grant Campbell was signing letters on behalf of Warwick Smith, particularly regarding the fax billing and lock-up complaints included in my FTSP claims.
- Telstra FOI documents H00027 H36279, and H36280 (File 56 GOpen Letter File No/56-A to 56-D) confirm that, in January and February 1995, Grant Campbell and Ted Benjamin were addressing the same types of 008/1800 billing issues on behalf of Telstra’s Customer Response Unit. This is the same Unit that Ted Benjamin headed when he wrote to Dr Hughes on 16th December 1994 to confirm that Telstra had advised AUSTEL, in writing, that they would address my 008/1800 billing issues as part of their defence of his claim, as per the arbitration agreement. I have always been concerned about Grant Campbell’s handling of my 008/1800 arbitration materials that went through the TIO’s office in 1994.
During the early stages of the COT arbitration process, the COT claimants were told that Pia Di Mattina had been seconded from Minter Ellison by the TIO to assist him in the COT Arbitration Process. Miss Di Mattina’s name, understandably, does not appear on the TIO 1993/94 employee list included in the 1993/94 Annual Report (the report can be supplied on request). However, all the other TIO employees are listed there, it is also interesting to note that Grant Campbell’s name is not included on the employee list either, even though he dealt with a number of the billing issues during Alan Smith’s arbitration, as well as accepting part of Alan Smith’s original FTSP claim lodged with the TIO office on 27th January 1994.
This Telstra internal email FOI folio 000973 (AS 542-E) notes:
"The ex-employee’s name is Grant Campbell. Grant then worked as the Deputy Telecommunications Industry Ombudsman and then on a senior management review team".
On 9 February 1994, Mr Campbell wrote to Telstra’s Fiona Hills, under the heading Loss of Fax Capacity, noting:
"I spoke with Alan Smith on the 9 instant following our discussion on the 8 instant. He has agreed that this is a new matter and may indicate some ongoing problems, but it is not a matter that relates directly to the preparation of his material to be presented to the Assessor".
Mr Campbell’s statement to Fiona Hills that “He has agreed that this is a new matter” does not match the information in (AS 767-A, 768, 769, 770, 771, and AS 772-A) which confirms that local (Portland) Telstra technicians were aware of the significant problems associated with the faxing capacity issue, at least as far back as October 1993. Mr Campbell’s correspondence was, therefore, clearly misleading fellow Telstra employees and, possibly, Warwick Smith about the ongoing problems. This adds even further weight to my claims that a transparent investigation into the TIO-administered COT arbitrations is necessary.
It is remarkable that Grant Campbell was seconded from the defendants' employment during the COT arbitrations. Still, it is even more amazing to learn that, while he was wearing his TIO hat, he was also working on 1800 problem claims lodged by another COT claimant, but, in this instance, he was wearing his Telstra hat! These two different ‘hats’ must lead directly to an understanding that no one may ever know how many claim documents the COT cases sent to the TIO’s office while Grant Campbell was wearing his TIO hat but being paid by Telstra.
We may never uncover how many arbitration procedural documents never made it to the viewing room that the TIO-appointed, secretly absolved from risk, arbitration Resource Unit appeared to have access to.
We have raised the issue of this Grant Campbell fax capacity issue here because Dr Hughes’ technical Resource Unit never provided me with the results of their investigations into the lost faxes, even though it cost me well over to $300,000.00 to participate in the arbitration process; and even though clause 11 in the official Arbitration Agreement notes: '
The Arbitrator's reasons will be set out in full in writing and referred to in the Arbitrators award, the lost fax issues were not referred to: 'in full in writing' in the Arbitrators award.
Like Grant Campbell, Warwick Smith and his appointed Arbitration Technical Resource Unit they appear to have misunderstood the significance of the 008/1800 problem, because they failed to alert Dr Hughes that the 008/1800 service I used was actually routed through his main service line, 055 267 267, the line that one of the two faulty EXICOM phones was connected to – the phone that was prone to lock-up after each terminated call. In other words, when the Resource Unit advised John Pinnock (TIO) on 15 November 1995, and Dr Hughes on 2 August 1996 (AS 220), that Alan’s 008/1800 billing claims were not addressed, they were also admitting to not investigating or addressing my main service line 055 267 267.
Was there a more sinister motive behind the decision to ignore my billing claims, the same 008/1800 billing faults that Telstra’s Grant Campbell investigated while working with the TIO (on secondment from Telstra) and then worked on again later after he went back to Telstra to work alongside TIO Council Member Ted Benjamin?
Did Ted Benjamin's relationship with Telstra and the TIO Council have anything to do with his later relationship with Grant Campbell? There appears to be NO doubt that this particular issue – of Grant Campbell addressing 008/1800 problems on behalf of the TIO and then on behalf of Telstra, all during Alan’s arbitration – created a massive conflict of interest.
Could it be that, when I told Mr Campbell that he needed all the documents related to his earlier settlement, from before December 1992, so he could show how undemocratic this 1992 settlement process was, Mr Campbell then passed that information straight on to Telstra, thereby effectively alerting Telstra to which documents they could ‘lose’ because it was relevant to my case? It is also interesting to connect this issue to a letter dated 11 November 1994 from the Commonwealth Ombudsman’s Office to Telstra, asking why the earlier settlement material I requested under FOI had still not been supplied to him.
