Chapter Nine - A Comprehensive Log Of Fault Complaints

A letter from John Rundell, the Arbitration Project Manager, on 18 April 1995, advised the TIO, the arbitrator and the TIO 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.”

. . . .

“Any technical report prepared in draft by lanes [the Australian technical consultants that the COT Cases mistrusted] will be signed off and appear on the letterhead of (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 followed by an question mark. Well we might all ask, What? The commenter recognised that the technical resource unit should not have performed the investigation… but still allowed this cover-up to stand.

NONE of the four COT claimants were ever told about these forces at work nor were we warned that, under the noses of the TIO, his legal advisor and the arbitrator, these unnamed forces were allowed to infiltrate and manipulate the arbitration process. Three legal experts appeared to note nothing out of the ordinary or any illegalities, while the lives of the four COT cases were held to ransom by these STILL unnamed forces.

In this 18 April 1995, letter the Project Manager advised the TIO (see Arbitrator File No/17) that the Director of the Canada technical consultancy firm appointed by the TIO as the Principal technical consultants who was to take charge of the arbitration technical-side of the operation arrived in Australia on 13 April 1995. He worked over Easter Holiday period, particularly on the Smith claim where the Project Manger’s true colours were exposed when he noted:  Any technical report prepared by draft by Lanes (the TIO-appointed Australian consultants) will be signed off and appear on the letterhead of DMR Group Inc [the Canadian technical consultancy the COT Cases trusted].

Prior to Arbitration

The COT cases were fully aware of Telstra’s corporate power over most of the Technical Telecommunication Consultants in Australia.  Our research showed that DMR Australia were possibly the only organization within Australia (because of their affiliation with off shore telecommunication services) that would handle our matters independently.  We agreed to accept DMR Australia as the independent arbitration Technical Consultants.  For reasons unknown to the four COT Cases, at the last minute (ten months into the arbitration process), the COT Cases were informed in February 1995, that DMR Australia could not assist the Arbitrator in assessing the COT claims.

Lane Australia was then offered to the four COT Cases.  After our research, it was uncovered at least one of the Senior Partners were ex-Telstra and that Lane had worked on Government Projects – therefore, they were considered inappropriate. Under pressure from the TIO, the COT Cases accepted DMR Inc. Canada (only if they were the principal Technical Consultants).  Warwick Smith’s 9 March, 1995 letter to the COT Cases Introduction File No/1-A to 1-G shows we were promised DMR Inc. Canada would be the principal Consultant

All the official draft Lane technical report findings, shown in their report of 6 April 1995, were prepared seven days before Paul Howell of DMR Inc Canada came to Australia on 13 April 1995. The same findings were used in the final DMR and Lane formal report of 30 April 1995. Lane was the principal consultant and DMR Canada was brought to Australia to sign off the Lane report, which didn’t investigate any ongoing problems still affecting my business. The RVA (recorded message fault), advising customers they had dialled the wrong number, was never investigated.

Dr Hughes only addressed anecdotal historic fault complaints – not faults still affecting my business. Garry Ellicott, who prepared my arbitration claim, is an ex-senior Queensland police officer as well as an ex-National Crime Authority officer (with credits). Mr Ellicott reported his own RVA issues when trying to contact my business while preparing my arbitration claim. Letters from AUSTEL to Telstra, dated 4 October 1994, Telstra’s response, on 11 November 1994, and AUSTEL’s letter to Dr Hughes, on 8 December 1994, all concern Garry’s problems in trying to reach my business on 27 May 1994 (See Open letter File No/46-A to 46-l). Telstra’s letter to Dr Hughes, dated 16 December 1994 (Open letter File No/46-J to 46-l), asks how he wishes to address these ongoing problems. Resource unit member Sussan Hodgkinson sent a memo, on 2 August 1996, to Dr Hughes (copied to the TIO office) admitting to the existence of these letters (see Open letter File No/45-A to 45-I).

Five months after my arbitration was prematurely concluded, without having addressed any of my ongoing billing claim documents, the government communications regulator, AUSTEL, wrote to Telstra (copied to John Pinnock), on 2 October 1995, advising the Cape Bridgewater Holiday Camp billing issues remained unaddressed (see Open letter File No/46-K). On 16 October 1995, AUSTEL allowed Telstra to address the RVA faults, which, in turn, became billing problems, that Garry Ellicott originally raised on 27 May 1994. Allowing Telstra to address these arbitration issues, outside of the arbitration, denied both Garry and I the legal right to challenge Telstra’s response. If this is not democracy gone horribly wrong then what is?

The arbitrator’s draft award, on page three, states:

“…pursuant to paragraph 8 of the arbitration agreement, I had power to require a ‘Resource Unit,” comprising of FHCA, and DMR Group Australia Pty Ltd, to conduct such inquires or research as I saw fit;

On 21 February 1995, by the time I was satisfied that the submissions of all relevant material by both parties was complete, I instructed the Resource Unit FHCA (and, through them DMR) to conduct certain inquiries on my behalf’ (AS 164).

The Arbitrators’ final award modifies these points so that they read:

“…pursuant to paragraph 8 of the arbitration agreement, I had power to require a ‘Resource Unit’ comprising FHCA Accountants, and DMR Group Australia Pty Ltd, to conduct such inquires or research as I saw fit. By consent of the parties, the role of DMR Group Australia Pty Ltd was subsequently performed jointly by the Canadian technical consultancy group and the Australian consultants;

“On 21 February 1995, by which time I was satisfied that the submissions of all relevant material by both parties was complete, I instructed the Resource Unit FHCA to conduct certain inquires on my behalf “(AS 165).

Summary of document (AS 160) to (AS 165):

The technical findings in both the draft and final awards (except for the removal of the billing issues, which needed weeks to investigate) are mirror copies of each other. However, in the draft award, the writer states he called on the DMR Group Australia Pty Ltd to conduct inquiries by 21 February 1995. DMR Group Australia Pty Ltd resigned from the arbitration process months prior to this date.This Canadian consultancy firm and the TIO-appointed consultants were not officially appointed by the TIO until 9 March 1995 and/or officially accepted by letter of consent (see Arbitrator File No/24).The Canadian company did not receive any of the technical claim and defence material until 21 March 1995 (see  Arbitrator File No/22).

So who provided the arbitrator with the technical information he used in determining my award? Why did he only address anecdotal or historic phone problems, rather than the ongoing faults provided by my claim advisors Garry Ellicott and Barry O’Sullivan (now Senator Barry O’Sullivan) to the arbitrator in their comprehensive log of my fault complaints?

Two Conflicting Reports, Both Dated 30 April 1995

There are discrepancies between the arbitrator’s and my version of the technical consultants’ report titled Resource Unit Technical Evaluation Report. Mr Alan Smith. CBHC. 30 April 1995. The second paragraph on page one consists of only one short sentence “It is complete and final as it is,” (see Arbitrator File No/27). However, the second paragraph on the equivalent page (page two) of the arbitrator’s report, also dated 30 April 1993 says:

“There is, however, an addendum which we may find it necessary to add during the next few weeks on billing, i.e. possible discrepancies in Smith’s Telecom bills.” (See Aritrator File No/28)

There is more information in the arbitrator’s version than there is in mine. The reference to my ongoing billing problems states extra weeks are required to complete the investigation. The arbitrator did NOT provide the extra weeks.

My page two of this report (see Open Letter File No/47-A to 47-D) shows no mention of my billing claim document in my version. However, page three in the arbitrator’s version notes:

“One issue in the Cape Bridgewater case remains open, and we shall attempt to resolve it in the next few weeks, namely Mr Smith’s complaints about billing problems.

“Otherwise, the Technician Report on Cape Bridgewater is complete.” (See Open Letter File No/47-A to 47-D)

How can two identical technical reports with the same 23 technical assessments, both dated 30 April 1995 and apparently both prepared by the same consultants, have one version noting that the “… case remains open, and we shall attempt to resolve it in the next few weeks”, while the other has no mention of it still being open and needing weeks to complete?

Both documents state: “A comprehensive log of Mr Smith’s complaints does not appear to exist.” It did exist, as we have shown. Had this comprehensive log of fault complaints been provided to the technical consultants to assess, they would have had to overrule the arbitrator’s decision not to allow them the extra weeks they had requested, in order to investigate my ongoing billing faults.

“A comprehensive log of Mr Smith’s complaints does not appear to exist.”

Garry Ellicott and Barry O’Sullivan had definitely submitted a very comprehensive list of fault complaints as part of my submission (see Arbitrator File No/31 & 32). In the second week of June 1994, Garry Ellicott and Barry O’Sullivan freighted down eight bound, spiral reports from Queensland. One of those reports was a full chronology of events to assist with reading the comprehensive log of fault complaints. When I demanded an arbitration meeting to discuss these missing reports, my request was denied (see Arbitrator File No/48).

To be clear, a dated chronology of my 008/1800 billing issues was in existence before, during and after my arbitration. A comprehensive log of faults was submitted to the Federal government prior to my arbitration as well as during, but this record disappeared, leaving only 11% of my claim documents to be assessed. Neither Telstra nor AUSTEL could not allow my 008/1800 billing issues to be scrutinised and exposed. The implications of a systemic charging issue, which affected as many as 120,000 Australian households and businesses (see  in Chapter Thirteen.

My award was brought down on 11 May 1995. The very next day, the arbitrator wrote to the TIO and discussed one of the deficiencies in the agreement; the insufficient time frame allowed in the arbitration agreement for the “preparation of technical reports”. I had raised this very same issue with the arbitrator the previous week, when I requested he give me more time to investigate the disappearance of my comprehensive log of complaints.

The arbitrator states, in his 12 May 1995 letter:

“…we did not allow sufficient time in the Arbitration Agreement for inevitable delays associated with the production of documents, obtaining further particulars and the preparation of technical reports” (See Open Letter File No 55-A)

Could the loss of my comprehensive log of my fault complaints have anything to do with the arbitrator deciding not to proceed with my matters any further? Was the arbitrator aware of the existence of the log? The arbitrator allowed the next three claimants between 13 and 36 months longer than he had allowed me, in which to finalise their claims.

This failure to supply the technical resource unit with a comprehensive log of my fault complaints severely disadvantaged my whole claim. I approached my claim advisors, Garry Ellicott and Barry O’Sullivan, during my designated arbitration appeal period and asked them to itemise their cost for sending so much material from Queensland to the arbitrator in Victoria, but they were unable to do so. I had hoped an itemised breakdown of those costs, this revision of the facts, could have provide some proof as to what documents were freighted from Queensland to the arbitrator’s Melbourne office.

Although today, we now have proof that such a comprehensive list of my fault complaints was sent by my claim advisors – it was later provided to me by the arbitrator’s office in August 1995 – the special appeal period had well and truly expired.

Consider:

1. Why did the TIO-appointed arbitration technical unit state in their 30 April 1995 report that “A comprehensive log of Mr Smith’s complaints does not appear to exist” when my claim advisors Garry Ellicott and Barry O’Sullivan submitted a full chronology numbered as evident on pages 11, 12 and 22 in their reply to Telstra’s Interrogatories (see Arbitrator File No/91).
2. Why did the TIO arbitration resource unit advise the new TIO on 15 November 1995, six months after my arbitration was over, that the billing issues I raised were not addressed in arbitration because they were not submitted until April 1995 (see Arbitrator File No/34A)? Yet, their correspondence to the arbitrator (and copied to the TIO on 2 August 1996) show these billing issues discussed by the resource unit in December 1994 (see Arbitrator File No/53).
3. Why did the research unit arbitration project manager, in this 15 November 1995 letter, also state: “As no further progress was likely to be made on these matters, the formal version of the Technical Evaluation Report did not leave the billing issues open.”? Yet this letter proves beyond all doubt these ongoing unaddressed billing faults were left “open”.

Canadian and Australian consultancy report 

The 23 findings included in the TIO-appointed technical consultants report draft report (inadvertently provided to me three months after the end of my arbitration) are exact duplicates of the findings in the final 30 April 1995 Canadian and Australian consultancy report provided to me by the arbitrator, but that so-called ‘final version’ had NOT been signed off.

Why did I have to wait until 16 August 1996, 15 months after the end of my arbitration, before I finally received a copy of a covering letter apparently provided by the Canadian consultancy firm to the arbitration project manager, on 30 April 1995, in relation to the final version of the 30 April 1995 draft report? And I only received that covering letter from the TIO who advised me that:

“…the Arbitrator was not obliged to forward a copy of this covering letter to you, as it did not, strictly speaking, form part of the Technical Evaluation Report. However, in the interest of alleviating your concerns, I now enclose a copy of [Canadian consultant]’s covering letter”. (SeeArbitrator File No/25

Neither the arbitrator, the TIO, nor the arbitration project manager have ever explained why the formal technical report supplied to the arbitrator and then copied to me was not signed off, or why the covering letter, allegedly written by this Canadian technical consultancy firm, was not produced until 15 months after my arbitration was declared. Unbeknown to the TIO, the Canadian consultant had already spoken directly to me, on 31 May 1995, (see my partner’s diary note, Arbitrator File No/26) advising that he didn’t sign off on the report because it was NOT FINISHED at the time it was submitted to the arbitrator, myself and Telstra for their official comments. My statutory declaration dated 23 February 2006 to Liberal Government Department of Communications, Information, Technology and the Arts (DCITA) assessors in February 2006 advised them of this phone call. It also advised them issues surrounding the two conflicting technical reports, which we have discussed above and below.

How can two identical technical reports with the same twenty-three technical assessments, both dated 30 April 1995 and both apparently prepared by the same consultants, have one version noting that the “… case remains open, and we shall attempt to resolve it in the next few weeks” and the other without any mention of it still being open and needing weeks to complete?

There are two conflicting lists of the technical and defence arbitration material received by the TIO-appointed technical consultants to assess during my arbitration (see Arbitrator File No/31 & 32). The lists are almost identical, except that the arbitrator’s version does NOT refer to the billing claim documents that my claim advisors sent from Queensland. Page 27 from the arbitrator’s version lists less than a third of the material my claim advisors Garry Ellicott and Barry O’Sullivan submitted to the arbitrator.

Arbitrator File No/32 is page 40 from the final version of the report that I received during my arbitration – it includes 14 more sets of claim documents than what is on the list contained in Arbitrator File No/31.

Garry Ellicott and the Hon Barry O’Sullivan

I am sure, even after the misunderstanding I had with my two arbitration claim advisors, Garry Ellicott and Barry O’Sullivan, that these two fine gentlemen will now understand why it was so important for me to have an itemised record of the various costs involved in sending documents from Queensland to Victoria, throughout my arbitration.

What would have happened in August 1995 if I had been able to prove, not only the actual existence of a detailed, chronological list of all the ongoing telephone fault complaints that I had lodged with Telstra, but also the exact date that it was mailed to the arbitrator! That would have meant that all my claim documents would have to be examined and investigated before the end of my arbitration. What would the arbitration project manager have done then?

The following information, under the heading Important Comparisons, is just one example from a long list of crimes connected to my arbitration, and it is the combination of those criminal activities that has destroyed the last 20 years of my life and that of my partner.

Important Comparisons

The list of documents (see Arbitrator File No/22) the arbitration resource unit sent to Canada for assessment does NOT include a comprehensive log of my fault complaints, although it does include 10 volumes of Telstra’s defence documents to address the three bound volumes of my claim documents (instead of the 17 that should have been sent).

Arbitrator File No/31 also confirms that no comprehensive log of my fault complaints was assessed, either in Canada or in Australia. None of the numbered claim documents that Garry Ellicott and Barry O’Sullivan submitted were assessed either.

Arbitrator File No/32 is a list of claim documents numbered SM2, SM16, SM 17, SM20, SM21, SM45, SM46, SM47, SM48, SM49, SM50 and SM53. However, make the statement after the above by saying: These documents Files No 22 and 31 are missing from the formal technical report (see Open Letter File No/47-A to 47-D). This document illustrates Barry and Garry’s numbering system and shows that, on my behalf, they sent the arbitrator another seven folders that included documents numbered 1-200, 200-400, 400-600, 600-800, 800-1,000, 1,000–1289 and 2,001–2,158, i.e. a total of 2,158 documents, further to the other documents labelled as SM.

Both of these almost-identical reports are dated 30 April 1995. However, one was supposed to be a draft version and the other was supposed to be the final version. How can one include a list of 17 bound submissions, examined by the technical consultants, while the other lists only three; but both versions state that the same 4,000 documents were examined? These reports indicate that every single one of the extra 3,000 documents was apparently assessed on 30 April 1995, the day that both the reports were dated, which is clearly not even remotely possible.

Most of these 3000 documents including the supporting information explaining the relevance of these documents are AXE Ericsson and SVT / BCI faulty Ericsson testing equipment which Telstra had knowingly used prior to and during the COT arbitrations. Combine these 3000 Ericsson related claim documents and the fact that David Reid (Lane) who secretly prepared the 7 April 1995 technical findings that 6-4-95 Lane Draft Report (4-A)  shows both of 30 April 1995 findings are based on the 6 April 1995 draft Lane. It is clear from the 6-4-95 Lane Draft Report (4-A) David Reid (Labe) did not value any of my 3000 Ericsson data.

Are these 3,000 not assessed Ericsson claim documents by David Reid (Lane Telecommunications) linked to the purchase of Lane by Ericsson during the COT arbitrations?

An Exercise in Logic

If one version of the report shows that there are 14 sets of claim documents (3,000 more documents to be assessed as well as the other version) apparently produced on the same day, and notes that those documents were properly assessed, how could the resource consultants have assessed 3,000 extra technical documents in the space of one single day?

As an exercise in logic, let us assume consultants from the Canadian and Australian consultancies were able to assess, collate and understand the relevance of those 3,000 technical documents in the one day available. Where are the results of that phenomenal assessment? There are no references to assessments of the billing documents in the so-called ‘final’ version of the report and/or draft report. The only reference to billing issues in the arbitrator’s version indicates the need for extra weeks to assess my billing claim documents – making it blatantly obvious that the Canadian and Australian consultants were not able to magically assess, collate and understand the relevance of those 3,000 billing claim documents at all.

Obviously, it is not humanly possible to read all 3,000 documents even briefly, let alone check complex calculations too.

The submission of this technical report, still incomplete, is deception on a very wide scale, involving some very prominent Australian identities, all of whom should have known better than to go along with this level of deceit in the first place, let alone remain involved in this deception for another 20 or more years. I first raised these two conflicting technical report issues with the TIO in August 1995, when the arbitrator’s secretary inadvertently provided them to me.

There is no mention, in any correspondence provided to the Canadian or Australian consultants, of Telstra’s threats or the carrying out those threats by not providing me with the FOI documents I requested because I assisted the AFP’s investigation into Telstra’s unauthorised interception of my telephone conversations. This decision seriously disadvantaged the whole preparation of my arbitration claim.

Why didn’t the arbitrator and TIO initiate an investigation into how an Australian citizen (me) could be so disadvantaged during a civil arbitration process, simply for carrying out his civil duty; assisting the AFP with their investigations into Telstra’s unauthorised interception of my telephone conversations?

None of the important claim documents in those 14 folders were assessed or defended by Telstra in Australia, or assessed by DMR Inc. in Canada. As noted above, my sincere hope now is that the senator will now see why I was so angry when neither he nor his colleague seemed able to provide records to show the arbitrator that the arbitration technical unit’s comment that: “A comprehensive log of Mr Smith’s complaints does not appear to exist” was actually incorrect.

The truth of what was done to me by the arbitrator and technical consultants is firmly embedded in these two conflicting reports. All that is needed is for one government official to start asking questions upon reading absentjustice.com so the truth surrounding these two conflicting reports will finally be revealed.

The Deception Continues

It seems, from the many inaccuracies in the conflicting technical reports that the arbitrator based his findings on, that a second and possibly even a third party was involved in preparing these reports and it certainly seems that the draft and final versions of the award were prepared by someone who heavily favoured the defence. The hand-written notes in the draft version indicate that the findings did not come from the arbitrator. So, who was the mystery person (or persons) who supported Telstra and provided these inaccurate pieces of information to the arbitrator? Who was really in charge of the arbitrator?

Upon reading the arbitrator pages and attachments, one has to ask why. Why would an arbitrator, a lawyer who is internationally recognised as a specialist in his field, two TIO’s (also highly respected in their chosen professions) and the arbitration project manager, allow all that has been revealed here on absentjustice.com to have happened?

And to think that this man still advises the Australian government on legal matters! No wonder the government will not properly or honestly investigate my matters.

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