Chapter Five

Chapter 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 is further proof that Dr Gordon Hughes should have never allowed this secret meeting to take place 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 and 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 Telstra would allow the arbitration resource unit first 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 that 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 the addressing of 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 those who attended this clandestine meeting were 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. Except Jenny Henright, all were lawyers and 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 or 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 a have recourse over the arbitration consultants if the resource unit was negligent in their duties. It will be clear, after reading Open letter File No 54-A), and the Prologue page, the arbitration resource unit was negligent during my own arbitration process and I was unable to hold them to account for those actions, due to those negligent clauses being removed in my arbitration agreement. This is a very 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, although 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 final copy had been signed by the first claimant Maureen Gillan, and after it had been faxed to our lawyers as the final agreement. 

Chapter 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 originally exposed in those two points that prompted Telstra’s lawyers to remove them from the minutes that the arbitrator would have surely 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 the confidentiality clauses in the arbitration allow them not to disclose to the claimants and the public anything about the conduct of our arbitrations. 

This is further proof that for Dr Gordon Hughes should have never allowed this secret meeting to take place 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 accepted that Telstra would allow the arbitration resource unit first 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 that was concealed from the COT cases during this clandestine gathering. Although, Ferrier Hodgson Corporate Advisory admitted, in writing, 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 it did not occur to either the TIO or the arbitrator that, once the directions regarding liability were removed, this would allow complacency to creep /the arbitration process? This is exactly 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 and that they were allowed to decide on what was viewed by the arbitrator and then passed onto us three claimants. 

Hiding behind a tainted confidentiality agreement - Section three

Although the 19th April, 1994 Arbitration Agreement issue has been addressed elswhere on absentjustice.com, it is important to link it here to the issue when the arbitrators 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 arbitrators 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 an 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 forced removal of the $250.000.00 liability caps for one section of the COT group and not all of the COT cases is not criminal discrimination by Australia's Establishment of the worse possible kind, then 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 that agreement that Maureen had signed. Our lawyers compared the faxed arbitration agreement with Maureens signed agreement advising us to do the same.

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

The minutes of a secret meeting (see Chapter 5 Fraudulent conduct) with Steve Black (Telstra's arbitration officer), Telstra's Mr Krasnostine (legal directorate), Dr Hughes (the arbitrator), Peter Bartlett (TIO Counsel) in Chapter 5 Fraudulent conduct 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, icluding Telstra, the arbitrator, Peter Bartlett and TIO Warwick Smith are using the confidentlity 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. 

In Open letter File No 54-B is a letter dated 12 April 1994 from Dr Hughes to a member of the TIO counsel. This letter discusses how to overcome that one of the four COT cases (Maureen Gillan) had already signed the arbitration agreement on 8 April 1994. This version was the agreement Senators Richard Alston and Boswell, 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 in connection with the remaining three arbitrations. Removing the $250,000 liability caps from the original agreed-to agreement removed any incentive for the resource unit to act responsibly towards the three remaining claimants. And as our Open letter File No/45-A to 45-I and File No/46-F to 46-J show this is what happened: i.e., the arbitration resource unit withheld some of the most important relevant documents from my arbitration process – aware they could NOT be sued for that unacceptable conduct.

Chapter 3

Lets look at the Project Manager and his misleading and decptive conduct in a different light:

This is a story of judicial and government corruption that stems from a single joint action with just one aim: to stop the COT Cases from proving their claims against Telstra, the defendants, and it was Telstra who, through their prolonged rorting of millions and millions of dollars from the public purse, i.e. from Australian citizens in general, but also including those citizens who were Telstra shareholders in particular (see page 5163, SENATE official Hansard – Parliament of Australia). All this money oozing out of government coffers meant that Telstra had to defer expenditure and this was therefore what caused Telstra's infrastructure to fall into serious disrepair which was, after all, what had created all the problems for Telstra customers in general and the COT claimants in particular.

This whole situation then even got worse because this rorting of the system and it’s disastrous effect on Telstra’s finances meant that Telstra had no choice, they had to continue to operate their telephone exchanges with the very faulty Ericsson AXE telephone exchange equipment while, by this time, all the other legitimate telecommunications carriers offshore had either already removed the Ericsson AXE equipment from their exchanges or were, at the very least, involved in permanently removing it.  Meanwhile, what was Telstra doing?  They were busy telling the COT arbitrator, in their official witness statements, under oath, that there was nothing wrong with the AXE exchanges at all (see File 10-B Evidence File No/10-A to 10-f)!

On our Hacking – Julian Assange page in the above menu bar, we provide further examples of relevant documents not reaching the arbitration process for assessment. The young computer hackers contacted the COT cases twice in early 1994 to advise they had hacked into Telstra’s email service and uncovered Telstra acting unlawfully towards the COT cases. They asked if we wanted the evidence. We refused to accept this evidence, as we were concerned we were being set-up. We notified the authorities and as these hackers and Julian Assange were caught around the same time, this suggests we unwittingly played a part in his arrest. It is now obvious the hackers were telling the truth about Telstra’s conduct towards the COT cases, but COT spokesperson, Graham Schorer, remembers the hackers implied it was not only Telstra people who were acted inappropriately towards us; they indicated they uncovered other people who were working against us from within the process itself, who were also acting inappropriately. Unless the hackers decide to contact us again now, in 2017, to explain who those other people were, which is of course highly unlikely, we will probably never know for sure.

Did the hackers uncover: Evidence Dr Hughes was forced, under pressure from the Establishment, to use Telstra’s drafted arbitration agreement instead of the agreed, independently drafted agreement all relevant parties were told would be used?;

1. Evidence the arbitrator agreed with the defendants that he and his arbitration project manager would only assess a limited amount of claim documents in order to minimise Telstra’s liability? (AS-CAV Exhibits 589 to 647 - See AS-CAV 590, Chapter Nine and Ten);
2. Evidence that Telstra and the TIO agreed to secretly appoint a second arbitrator who would decide which arbitration procedural documents would reach the official arbitrator (Dr Gordon Hughes) and which would be concealed? (AS-CAV Exhibits 589 to 647 - See AS-CAV 590, Chapter Seven);
3. Evidence confirming someone with access to Telstra’s fax screening process were diverting arbitration claim documents to a designated filing system before they were redirected onto their intended destination? (See Open Letter File No/12, 13, 16 and File No/17).

In my case, even though the arbitrator’s secretary advised the arbitration process that six of my faxed claim documents never reached the arbitrator’s office, I was never afforded the opportunity to resubmit this material for assessment. My fax account shows I dialled the correct fax number on all six occasions.

In my own case, the truth was certainly not free.  In fact, it cost me well over $200,000 in arbitration fees as I tried desperately to prove something that, as I discovered much later, the Government Communications Regulator, AUSTEL, had already proved, and officially recorded, in their secret report on my telecommunications problems.  And this report was prepared six-weeks before my arbitration even began and after AUSTEL had assessed documents they had obtained from Telstra’s own archives (see AUSTEL’s Adverse Findings) of 3 March 1994 at points 10, 17, 18, 23, 37, 39, 40, 42, 44,46,47, 53, 56, 61, 62, 70, 75, 76, 79, 85, 86, 87, 89, 91, 92, 93, 98, 100, 101, 104, 105, 109, 110, 111, 112, 118, 115, 129, 130, 136, 144, 151, 153, 158, 170, 173, 186, 187, 188, 206, 207, 208, 209, 210, 211 and 212 and in particular, at points 85 and 209, where AUSTEL notes:

“In June 1992 the camp tariffs ranged from $1500 to $6000 per week, so the loss of even one booking because of the RVA problem could mean a substantial financial loss. On calling up Directory Assistance a calling party would have been informed that the number was connected, but many callers would probably not have taken this action, accepting the contents of the RVA message at face value”

and

“Cape Bridgewater Holiday Camp has a history of service difficulties dating back to 1988. Although most of the documentation dates from 1991 it is apparent that the camp has had ongoing service difficulties for the past six years which has impacted on its business operations causing losses and erosion of customer base,”

Two other Telstra documents that should have also been provided to the arbitrator Folios C04007 and C04008 headed TELECOM SECRET state:

“Legal position – Mr Smith’s service problems were network related and spanned a period of 3-4 years. Hence Telecom’s position of legal liability was covered by a number of different acts and regulations. … In my opinion Alan Smith’s case was not a good one to test Section 8 for any previous immunities – given his evidence and claims. I do not believe it would be in Telecom’s interest to have this case go to court.

“Overall, Mr Smith’s telephone service had suffered from a poor grade of network performance over a period of several years; with some difficulty to detect exchange problems in the last 8 months.”

After reading the Manipulating the Regulator page, it should be clear that not only were there in-house government-communication-regulator sympathisers, covertly assisting Telstra in its defence of my claims, but the TIO arbitration financial consultants were also minimising Telstra’s liability in regards to my single and social club clients, and downplaying those losses by more than 300 per cent, as Chapter-One in our Prologue page shows. The project manager, who wrote to the TIO John Pinnock on 13 February 1996 admitting that the financial report was not complete because it “did not cover all material and working papers” when submitted as the final report (see Chapter One Prologue page), now operates his own arbitration centres in Melbourne and Hong Kong.

If you have heard that I am a bit of a ‘radical’ (or something worse!) then, before you make up your mind, please consider this: had the arbitrator been provided with AUSTEL’s Adverse Findings, before I entered the arbitration process on 21 April 1994, there would have been no need for me to try to prove, for 13 months, something the government had already secretly proved on 3/4 March 1994. With this type of finding already in place, all the arbitrator should have needed to do was assess the quantum of my losses due to more than six years without a phone service fit for purpose. How could Telstra have argued with the government’s own findings? After all, the government still owned Telstra at this point of time.

Once the arbitrator had AUSTEL’s Adverse Findings, he then would have also needed to assess the statement made at point 212 in that report: “In view of the continuing nature of the fault reports and the level of testing undertaken by Telecom doubts are raised on the capability of the testing regime to locate the causes of faults being reported,” when those ongoing telephone problems would be fixed. Eventually these problems were partially fixed, in December 2002, seven years after my arbitration had been deemed to be completed but, however, I never benefited from this improvement to the service because I had already sold my business in December 2001.

How is it that, in a country purporting to be democratic, an officially appointed Government Regulator can get away with deliberately concealing important information in the way that AUSTEL public servants hid information from both the arbitrator and my claim advisors, particularly AUSTEL’s own admission that: “… they had doubts on the capability of whether Telecom’s testing regime would locate the causes of faults being reported”?

While it has already been established that I was forced to register my phone complaints with Denise McBurnie, the author of the COT Case Strategy before Telstra would attempt to fix the ongoing problems, I also raised with Ms McBurnie – and later Simon Chalmers (also from Freehill Hollingdale & Page and the author of Telstra’s secret clandestine meeting minutes discussed above) – my concern that Telstra would rely upon the Cape Bridgewater BCI testing process as arbitration evidence of there being no more ongoing telephone and faxing problems affecting my business, despite the BCI process being grossly deficient. Were my claims concerning the deficient BCI tests discussed at the 22 March 1994 clandestine meeting (see below) and is this is why Dr Hughes made strong reference in his written findings that he accepted Telstra BCI tests as evidence? We might never know whether Telstra and its lawyers misled Dr Hughes concerning the impracticable Cape Bridgewater tests.

The 22 March 1994 transcripts of this clandestine gathering, where the COT cases were not represented (see Open letter File No 54-A), shows Telstra’s Simon Chalmers, the author of the minutes, has left out points 4 and 5. Point 6 follows point 3. Where are points 4 and 5?

The missing questions raised at points 4 and 5 in the minutes of this clandestine meeting may also 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 the addressing of 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 those who attended this clandestine meeting were 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. Except for Jenny Henright, all were lawyers and 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 or their lawyers advised of this meeting?

And further, the day before the Senate committee uncovered this COT Strategy, they were told, under oath, by an ex-Telstra employee and whistleblower Lindsay White that, while he was assessing the relevance of technical information requested by the first five COT claimants, he was instructed that we COT cases must be stopped “at all costs” from proving our claims. (See pages 36 and 38 Senate – Parliament of Australia).

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