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Chapter Three

(Introduction File No/8-A to 8-C), a letter dated 8 April 1994 to AUSTEL’s Chairman from Telstra’s Group General Manager, suggests that AUSTEL was far from truly independent, but rather could be convinced to alter their official findings in their COT reports, just as Telstra has requested in many of the points in this first letter.

For example, at point 4 on page 3, Telstra writes:

“The Report, when commenting on the number of customers with Cot-type problems, refers to a research study undertaken by Telecom at Austel’s request.  The Report extrapolates from those results and infers that the number of customers so affected could be as high as 120,000.

However, at point 2 on page 1 of Telstra’s letter 9 April 1994, Telstra writes:

“In relation to point 4, you have agreed to withdraw the reference in the Report to the potential existence of 120,000 COT-type customers and replace it with a reference to the potential existence of “some hundreds” of COT-type customers”.

The fact that, on this occasion on 9 April 1994 Telstra (the defendants) were able to pressure the Government Regulator to change their original findings in the formal 13 April 1994 AUSTEL report is alarming, to say the least.

The 120,000 COT-type problems being experienced by other Australian citizens are not referred to in the Department of Communications Information Technology and the Arts (DCITA) report either see Falsification Report File No/10 DCITA even though it was used by the DCITA to determine the validity of the COT claims of ongoing telephone problems that were destroying their businesses.

It is clear from the following three letters dated 3, 14 and 16 October 1995, that the most important part of my arbitration claim was addressed in secret by AUSTEL and Telstra. How many of the 120,000 previously concealed faults which should have been shown in AUSTEL’s COT Cases report were related to the 008/1800 faults which AUSTEL allowed Telstra to address outside of my arbitration arena?

This 3 October 1995 letter from AUSTEL to Telstra’s arbitration defence liaison officer and copied to the TIO, states:

“I write concerning charging discrepancies raised in 1994 by Mr Alan Smith of Cape Bridgewater Holiday Camp regarding his 008 service, and the wider issue these discrepancies raise for Telstra’s 008/1800 customers. These matters have been the subject of previous letters from AUSTEL to you and to [Telstra], dated 4 October 1994 and 1 December 1994, respectively. The charging discrepancies have again been raised with AUSTEL by Mr Smith following the conclusion of his Fast Track Arbitration Procedure.”

On 14 October 1995, AUSTEL’s Darren Kearney wrote to me under the subject heading Charging Discrepancies Related to Telstra’s 008/1800 Service:

“As noted in my letter to you of 4 October 1995, AUSTEL has written to Telstra regarding the issues originally raised by you in 1994. The letter refers specifically to charging discrepancies raised in 1994 by Mr Alan Smith of Cape Bridgewater Holiday camp regarding his 008 service. …

“As previously advised, you will be informed of the outcome of this matter.”

Did the arbitration resource unit understand that when they failed to investigate the ongoing billing problems, they did not address the cause of the billing issues? The billing issues included calls registering into the holiday camp lines through Telstra’s Call Analyses Charges System (CCAS) that I was charged for, although the connection actually failed, and a fault where successful calls were terminated but the line remained engaged, thus prohibiting incoming or outgoing calls. The failure of the engaged line to correct itself, leaving the line effectively frozen, was significant.

This fault was only obvious when dialling out from the business office. From 1993 onwards, Telstra often advised us to disconnect the phone at the wall socket and then plug it back in to free up the line. This indicates the fault was in either the phone or the actual phone line. In order to dial out of the office when this particular fault was present (it was intermittent), we had to disconnect the line at the wall after every call.

Faults continued to occur. In January 2003 – seven years after the arbitration process – the new owners of my business wrote to David Hawker MP, seeking help (see Arbitrator File No/118). Ex-Telstra technical guru Brian Hodge, after viewing Telstra’s own fault material, confirms the problems were still affecting the business in November 2006. When the project manager admitted that NONE of the billing issues was addressed during my arbitration (see below), he also admitted to not investigating the faults that caused these billing issues. In fact, in both the draft and final 30 April 1995 technical arbitration evaluation Cape Bridgewater Holiday Camp reports, the consultants state:

“2.23  Continued reports of 008 faults up to the present. As the level of disruption to overall CBHA (Cape Bridgewater Holiday Camp) service is not clear, and fault causes have not been diagnosed, a reasonable expectation is that these faults would remain “open”(See Introduction File No/1-B)

The TIO-appointed arbitration project manager wrote to the TIO on 15 November 1995 advising them that NONE of my billing faults was investigated because the material was not submitted until April 1995.

“A second matter involved 008 calls. Again, this matter was current at a late stage (April 1995) of the Arbitration process. …

“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 issue open.”(See Introduction File No/1-A )

Although the billing issues were certainly still “current” in April 1995, this letter implies that they were not referred to before: this is inaccurate as my billing issues were included in my letter of claim, which Garry Ellicott and Barry O’Sullivan lodged on 15 June 1994. The project manager, once again, misled and deceived the TIO. This same project manager was present at the oral arbitration hearing with the arbitrator and Telstra on 11 October 1994. I informed both the arbitrator and Telstra, in detail, as to the true extent of Telstra’s billing problems within their network. The transcript of this hearing shows that both the arbitration project manager and the arbitrator were given massive (and we repeat – massive) amounts of evidence in relation to wrongly calculated accounts charged to my phone services over many years recorded these facts. (See Open letter File No/45-B)

Amazingly, even though the arbitrator’s technical consultants – one from Canada, the other from Australia – warned the arbitrator, at point 2.23 in their final arbitration evaluation report, that there were “Continued reports of 008 faults up to the present. As the level of disruption to overall CBHC [Cape Bridgewater Holiday Camp] service is not clear, and fault causes have not been diagnosed, a reasonable expectation is that these faults would remain ‘open’,” the arbitrator Dr Gordon Hughes refused to allow these two arbitration consultants the extra weeks they needed to investigate these problems. Chapter One in our Prologue page shows the arbitration project manager John Rundell (who now operates an arbitration centre in Melbourne) knowingly misinformed the Telecommunications Industry Ombudsman (TIO) in his 15 November 1995 letter concerning these faults being left open. So not only was I battling Telstra’s false witness statements in my arbitration and the concealment of AUSTEL’s Adverse Findings against Telstra, but I also had to contend with the arbitration project manager’s false statements to the TIO (the administrator of my arbitration).

If my claim advisors, Garry and Barry, had provided me with the costs of the freight charges between Queensland and Victoria and the dates they sent the material on, I could have proved conclusively to the TIO that my billing claim documents were sent in June 1994, as the freight invoice would have shown when it left their Queensland office. No one has attempted to investigate why these documents were kept from the arbitration, not even my claim advisers. Senator Barry O’Sullivan has not replied to my questions as to why he won’t supply the freight costs.

If Mr Kearney is honest, then I am sure he remembers what he told me after I showed him point 2.23 (above). I remember, vividly, that he asked how the technical consultants could sign off their report as complete when they had not even attempted to diagnose the causes of the faults that Telstra’s CCAS data showed were a major problem for my business. I told Mr Kearney the Canadian technical consultant had spoken to me on the telephone and informed me the report was not signed off because it had not been completed. We address this issue in more detail on another page.

While Mr Kearney was clearly shocked at the evidence contained in my comprehensive log of fault complaints and appeared to empathise with me regarding the arbitrator’s duplicity, he made it clear AUSTEL could not intervene. He requested, almost apologetically, that he be allowed to take the comprehensive log and its attachments – five spiral-bound evidence files compiled by Garry Ellicott and Barry O’Sullivan. I allowed Mr Kearney the privilege of taking this information to Melbourne. However, similar to when I ignored Telstra’s threats (see Senate Evidence File No/31) and continued assisting the AFP with their investigations, I was again deceived. AUSTEL (now ACMA) like the AFP, has refused to assist me when I needed the same assistance they had received from me.

Was it legal or illegal?

Absent Justice - Thomas Jefferson

16 October 1995: Five months after my arbitration was deemed complete (and hence outside the arena of the arbitration process) AUSTEL allowed Telstra’s original arbitration defence liaison officer to address the 27 May 1994 recorded voice faults my claim advisor Garry Ellicott experienced (see also Open letter File No/46-A to 46-l). These were some of the billing RVA faults that the resource unit later admitted (2 August 1996) to the arbitrator and TIO that they had withheld from the arbitration process (see Open letter File No/45-H).

Trying to produce a readable claim when the story was so complex, multi-layered and obscured by long-delayed access to necessary information was extremely challenging. My phone and fax lines became lifelines to Garry Ellicott in Queensland. Ex-senior Queensland police officers Garry Ellicott and Barry O’Sullivan (now the Hon Senator Barry O’Sullivan) were heavily involved in my arbitration. Between May 1994 and May 1995, while working on my claim, Garry frequently experienced major problems when he tried to contact me by phone or fax (this was pre-email). Sometimes he attempted to phone me, but received an incorrectly recorded voice announcement (termed an RVA fault) telling him that my phone line was ‘no longer connected’; sometimes the line was simply dead. Sometimes he was unable to send faxes to me or I could not receive them; on other occasions when faxes did get through, if they weren’t completely blank pages, they were so distorted they were unreadable.

When Garry attempted to ring me on 27 May 1994 on my 1800 service, he twice reached a recorded announcement telling him my number was not connected, before he finally got through. When Garry rang the Telstra fault centre to complain about these voice messages the operator told him she could not register the fault because the complaint had to come from the customer. Garry’s response was understandably blunt. He asked, ‘How can the customer complain if he doesn’t know I’m trying to reach him?! How can he complain if he is not aware that his incoming callers believe he’s no longer trading?’ When my telephone account arrived I had, of course, been charged for both failed calls.

AUSTEL, allowing Telstra to address arbitration issues outside of my arbitration, prohibited me from legally challenging (as part of the original arbitration process) Telstra’s response to the ongoing billing problems that still affected the viability of my business. AUSTEL did not alert me to this, which meant that I was unable to use my legal right to challenge Telstra on this matter.

When AUSTEL allowed Telstra to address these ongoing RVA billing issues covertly (see Open letter File No/46-A to 46-l) and without the involvement of the original ‘umpire’ (in my case, the arbitrator) AUSTEL could not have known that my claim advisors had already proved to the arbitrator that Telstra’s witness statement was full of inaccuracies. Telstra was able to submit this same witness statement to AUSTEL, fully aware that AUSTEL did not know what Gary Ellicott and Barry O’Sullivan (my claim advisors) had proven.

Anyone who uses a telephone has at some time reached a recorded voice announcement (known within the industry as RVA):

The number you have called is not connected or has been changed. Please check the number before calling again. You have not been charged for this call.’

This incorrect message was the RVA people most frequently reached when trying to ring the Camp. While Telstra never acknowledged this, I discovered much later, among a multitude of FOI documents I received in 1994, a copy of a Telstra internal memo which explained, ‘this message tends to give the caller the impression that the business they are calling has ceased trading, and they should try another trader’.

Another Telstra document referred to the need for:

‘a very basic review of all our RVA messages and how they are applied …I am sure when we start to scratch around we will find a host of network circumstances where inappropriate RVAs are going to line’.

It seems the ‘not connected’ RVA came on whenever the lines in or out of Cape Bridgewater were congested, which, given how few lines there were, was often.

For a newly established business like ours, this was a major disaster, but despite the memo’s acknowledgement that such serious faults existed, Telstra never admitted the existence of a fault in those first years. And with my continued complaints I was treated increasingly as a nuisance caller. This was rural Australia, and I was supposed to put up with a poor phone service — not that anyone in Telstra was admitting that it was poor service. In every case, ‘no fault found’ was the finding by technicians and linesmen.

Absent Justice - Arbitrator Confidentiality Agreement

NOTE: The arbitration confidentiality agreement, which both Telstra and I signed, prohibited us from exposing these types of documents outside of the arbitration process. Yet Telstra, on 16 October 1995, supplied AUSTEL some of their original arbitration defence documents. Telstra not only breached the confidentiality agreement, but they also used documents already proven false. If AUSTEL had gathered the main players together and insisted the arbitration issues be addressed because the systemic billing issues affected thousands of Telstra customers, the arbitrator would have been duty-bound to reopen the arbitration.

How can AUSTEL (now the ACMA) continue to state that they are independent of Telstra and did not compromise my position? Mr Kearney’s report, from the information I provided him on 19 December 1995 (see below), confirms Telstra incorrectly charged me for telephone calls for more than two years, both before and during my arbitration. Between June 1993 and December 1995, I provided AUSTEL with copies of Telstra System CCAS data, showing that Telstra had a systemic billing problem in their network. Over this period, AUSTEL wrote to Telstra on numerous occasions regarding my claims. One letter, dated 4 October 1994, demanded answers (see Open letter File No/46-A to 46-l) and another letter, dated 2 August 1996, show AUSTEL was very concerned as it appeared this systemic billing problem still existed within Telstra’s network (see Arbitrator File No/115). Will the Australian public ever know how much extra revenue Telstra made during the period in which this systemic billing problem existed in their network?
Mr Kearney’s statements in his February 1996 report (see Arbitrator File No/109) support my original arbitration billing submission (which accompanied our arbitration chronology of faults submission and hence was hidden from arbitration) and show that the billing information that Telstra provided to AUSTEL on 16 October 1995 was fundamentally flawed. The information AUSTEL allowed Telstra to submit in secret did not match Mr Kearney’s findings. In essence, AUSTEL allowing Telstra to address some of my arbitration billing claims in secret, without an arbitrator present and disallowing me my legal rights to challenge Telstra’s submission, severely compromised my future complaints of ongoing telephone problems.

The TIO and Telstra both refused to properly investigate the ongoing problems until 16 January 1998, and then it was agreed (see Main Evidence File No 35 and File No 36) that these problems continued to haunt my business long after the end of my ‘completed’ arbitration. So, in 2015, how can the government say that the government communications regulator did not breach their statutory obligation to me as a citizen of Australia? Particularly, when they allowed Telstra to covertly address issues, which had cost me $200,000-PLUS merely to submit them to arbitration where ultimately only a part of my claim was assessed.

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All of the main events as quoted in this unbelievable true crime story are supported by copies of the original freedom of Information documents linked in the text.

Clicking on these links with your cursor will automatically open a PDF of the exhibit/evidence that a crime was committed. Using this method and following the various file numbers discussed in our various pages, you will verify our story. Without those documents, most people would really struggle to believe that public officials and their lawyers committed the illegal offences they did.

Using the acquired evidence the way we have is possibly a world first.

ABSENT JUSTICE HAS IT ALL.

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“I am writing in reference to your article in last Friday’s Herald-Sun (2nd April 1993) about phone difficulties experienced by businesses.

I wish to confirm that I have had problems trying to contact Cape Bridgewater Holiday Camp over the past 2 years.

I also experienced problems while trying to organise our family camp for September this year. On numerous occasions I have rung from both this business number 053 424 675 and also my home number and received no response – a dead line.

I rang around the end of February (1993) and twice was subjected to a piercing noise similar to a fax. I reported this incident to Telstra who got the same noise when testing.”

Cathy Lindsey

“A number of people seem to be experiencing some or all of the problems which you have outlined to me. …

“I trust that your meeting tomorrow with Senators Alston and Boswell is a profitable one.”

Hon David Hawker MP

“Only I know from personal experience that your story is true, otherwise I would find it difficult to believe. I was amazed and impressed with the thorough, detailed work you have done in your efforts to find justice”

Sister Burke

“…the very large number of persons that had been forced into an arbitration process and have been obliged to settle as a result of the sheer weight that Telstra has brought to bear on them as a consequence where they have faced financial ruin if they did not settle…”

Senator Carr

“…your persistence to bring about improvements to Telecom’s country services. I regret that it was at such a high personal cost.”

The Hon David Hawker MP

“I am writing in reference to your article in last Friday’s Herald-Sun (2nd April 1993) about phone difficulties experienced by businesses.

I wish to confirm that I have had problems trying to contact Cape Bridgewater Holiday Camp over the past 2 years.

I also experienced problems while trying to organise our family camp for September this year. On numerous occasions I have rung from both this business number 053 424 675 and also my home number and received no response – a dead line.

I rang around the end of February (1993) and twice was subjected to a piercing noise similar to a fax. I reported this incident to Telstra who got the same noise when testing.”

Cathy Lindsey

“All that is required for evil to triumph is for good men to do nothing”

– Edmund Burke