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Chapter 6 - Breach of trust

Absent Justice - 12 Remedies Persued - 8

In July 2005, 14 COT members met with Senator Barnaby Joyce in Brisbane (Queensland, Australia), and each provided him with their stories. The senator visibly became very emotional during this meeting and afterwards made a historic agreement with the Australian government: if the government agreed to appoint an independent assessor to investigate these 14 COT cases, then the senator would provide his one crucial vote needed by the government to pass the Telstra privatisation legislation in the Senate.

However, as the Hon Barnaby Joyce (now the Deputy Prime Minister of Australia) will attest, as soon as he cast his crucial Telstra privatization vote in the Senate, the government reneged on its official commitment to appoint an independent assessor to value the status of each unresolved 14 claims. The only compromise the government agreed to after this crucial vote had been passed is that the government's bureaucrats would assess each of the COT Case's claims which in reality was no different than allowing a bunch of pedophiles to play in a children's playground.  

These facts upset The Hon Barnaby Joyce, which prompted him to broker the deal with the government, unaware that he too was about to be shafted by the government as we COT Cases have over the past two decades.

Most people, after having read Chapters 1 to 7 Evidence - Telecommunications Industry Ombudsman, will conclude that the TIO office should never have been allowed to admin so many complex and highly legalistic processes. 

A secret agreement between Telstra (the defendants) and Warwick Smith to allow the TIO arbitration consultants first access to the arbitration documents before they were provided to the arbitrator was not part of the official (rules) within the arbitration agreement signed by Telstra and the claimants. File 590 in AS-CAV Exhibits 589 to 647 refer to Absent Justice Part 1 - Chapter 7 - Reinstated liability Clauses 

Evidence provided to the Senator during this meeting shows that, during the COT arbitrations, the TIO allowed Telstra employees (the defendants in the arbitration) to be present at all TIO board meetings and all monthly TIO council meetings, including any that involved discussions about COT arbitration issues.  So were any COTs (the complainants in this legalistic arbitration process) allowed to attend those same meetings or even invited to participate?  Was it this denial of justice to the COT Cases that prompted the Senator to finally say he would demand the government investigate these still unresolved COT issues

On 6 September 2006, in parliament house Canberra I provided Senator Helen Coonan and Senator Barnaby Joyce in the company of 14 COT Cases evidence that the Australian Communications Authority AUSTEL (now ACMA) had secretly allowed Telstra to address my 008/1800 arbitration billing documents on 16 October 1995 (five months after the conclusion of my arbitration) thus denying me my legal right of reply. (see Absent Justice Part 2 - Chapter 14 - Was it Legal or Illegal?) 

One of the letters I provided the two Senators, dated 4 October 1994, demanded answers from Telstra during my arbitration (see Open letter File No/46-A to 46-l) and another, dated 2 August 1996. These letters show that AUSTEL was very concerned that from my arbitration evidence, it appeared there was a systemic billing problem 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 after the arbitrator disallowed his technical consultants the additional weeks they stated they needed to thoroughly investigate these ongoing 008/1800 problems that appeared to be still affecting Telstra's network? (see Criminal Conduct Prologue - Chapter 1 - The collusion continues.

I did not understand that disclosing evidence to the government broke the confidentiality clauses in my arbitration agreement. AUSTEL's John MacMahon, General Manager of Consumer Affairs, and Bruce Matthes of AUSTEL's Carrier Monitoring Unit convinced me to report on the evidence I submitted to the arbitration process. It was a matter of public interest that I furnish AUSTEL with the proof I gleaned from Telstra under FOI as I was doing the same for the Australian Federal Police.

I proved that Telstra knew that more than 11% of their revenue was from telephone conversations and fax lines staying open after each terminated call. Seven months after the conclusion of my arbitration and the arbitrator allowed Telstra not to have to address these billing issues in their arbitration defence of my claims that AUSTEL's Darren Kearney drove the five-hour drive to my business on 19 December 1995 to view the evidence Dr Gordon Hughes (the arbitrator) allowed Telstra not to address even though it formed the central part of my arbitration. 

How can AUSTEL (now the ACMA) continue to state that they are independent of Telstra and did not compromise my position? How can one arbitration side be allowed to secretly submit information to a government regulator and not the officially appointed arbitrator where the government regulator makes the finding and not the arbitrator? Why was I disallowed my legal right of reply to Telstra's 16 October 1995 submission? A submission that does not match the findings of Telstra's CEO on pages 132 and 133 in his publication Managing in Australia (See File 122-i - CAV Exhibit 92 to 127) is discussed below.

The following link Evidence - C A V Part 1, 2 and 3 -Chapter 4 - Fast Track Arbitration Procedure confirms Frank Blount, Telstra’s CEO, after leaving Telstra in he, co-published a manuscript in 1999. entitled, Managing in Australia. On pages 132 and 133, the author exposes the problems Telstra were hiding from their 1800 customers:

Frank Blount's Managing Australia › managing-in-australia › fran can still be purchased online. 

It was these types of unaddressed arbitration issues that prompted The Hon Barnaby Joyce to demand resolution by the government as part of his commitment to vote for the Telstra privatization legislation.

For reasons known only to the Hon Barnaby Joyce, his support to have the government explain why the COT Cases were treated so undemocratically before and during their arbitrations faded not long after he first became Australia’s, Deputy Prime Minister

After the release of Frank Blount's Managing in Australia in 2000, the government regulator AUSTEL should have demanded the Telstra board explain why Telstra misled AUSTEL on 16 October 1995, when they secretly addressed my arbitration billing documents without either the arbitrator or I present shows just what it is like being a participant in a Kangaroo court style action (see Absent Justice Part 2 - Chapter 14 - Was it Legal or Illegal? 

Protecting Telstra the way AUSTEL's public servants did (see File 46-L (see Open letter File No/46-L to 46-l), allowing Telstra [the defendants in my arbitration] to secretly address arbitration claims without the arbitrator and claimant [me] being present, constitutes a radical attack on the fundamental principles of open justice.  In its flagrant disregard of constitutional and legal principles, the government regulator has abandoned its proper role as a model litigant and damaged the rule of law, i.e., my legal right to have been able to respond to File 46-L Open letter File No/46-L to 46-l under the agreed arbitration process. 

Absent Justice - TIO

It will be apparent to the reader when viewing where there are others, not just the COT cases, who see loopholes in allowing the Telecommunication Industry Ombudsman to administer the COT arbitrations. On 26 September 1997, after most of the arbitrations were concluded, John Pinnock (the second administrator of the COT arbitrations), advised a Senate committee (see pages 96 to 99 Senate – Parliament of Australia) that:

“Lane Telecommunications, which is one part of the technical component of the resource unit, has withdrawn from the process as a result of a conflict or perceived conflict of interest after being purchased from Pacific Star by Ericsson Australia, the major supplier of equipment to Telstra, including equipment whose performance is central to some of the claims.”

When I realized what the Telecommunication Industry Ombudsman (TIO) (the author of the above statement to the senate) had allowed when no investigation took place to see why Lane Telecommunications Pty Ltd and the Canadian technical consultants DMR Group Inc Canada had not investigated any of my ongoing telephone problems (see Chapter 1 - The collusion continues and Chapter 2 - Inaccurate and Incomplete) that were created by the known lockup problems affecting the Ericsson AXE faulty exchange equipment, I wrote to the TIO. 

I officially requested John Pinnock (the second TIO appointed to my arbitration) to provide me with all information concerning the selling off of Lane to Pacific Star and Ericsson, as well as on whose orders were the $250.000.00 liability caps at clauses 25 and 26 removed from my arbitration agreement after the arbitrator had faxed it to my lawyers. This secret removal of the liability caps $250.000.00 in my arbitration agreement exonerated DMR & Lane from all liability as the technical consultants to my arbitration (see Chapter 5. Fraudulent conduct).

Mr Pinnock’s letter of 10 January 1997, in response to that request, states:

“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)

Even worse, as shown on our Home page, between 18 October 1995 and 4 October 1997thirty months after my arbitration was over with the assistance of Mr John Wynack, director of investigations on behalf of the Commonwealth Ombudsman, I sought, under FOI, from Telstra a copy of their arbitration file including all my Ericsson fault data which would have had to have been in Telstra's Arbitration File..

Home Page File No/82 confirms Mr Wynack did not believe Telstra’s claim that my Arbitration File had been destroyed. This appears to be the arbitration file the hackers [Julian Assange] said the COT Cases needed to support their claims.

Absent Justice - Conflict of Interest

Two weeks before the arbitrations commenced, Telstra told the government what evidence they could supply or could not supply to the COT arbitrator and the general public.  

When the COT Cases exposed the Ericsson AXE call loss rate from 15 to 50 per centsee File 10-B Evidence File No/10-A to 10-f to AUSTEL the then government communications regulator (now ACMA) the regulator instigated an investigation into these Ericsson AXE exchange faults and uncovered some 120,000 COT-type complaints were being experienced around Australia. Exhibit (Introduction File No/8-A to 8-C), shows AUSTEL’s Chairman Robin Davey received a letter from Telstra’s Group General Manager also (Telstra's liaison officer to the COT arbitrations) suggesting he alter that finding:

For example, at point 4 on page 3, Telstra's arbitration liaison officer 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 arbitration liaison officer'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 April 1994 AUSTEL COT Case report is alarming, to say the least. Worse is that when AUSTEL released it into the public domain, the report states AUSTEL only uncovered 50 or more COT-type complaints.

50 COT-type customer AXE complaints compared to 120,000 COT-type customer AXE complaints is one hell of a lie told by the government to its citizens who voted them into power.

Transcripts from my AAT hearings (respondents ACMA) on 3 October 2008 (No V2008/1836) show I maintained my Ericsson AXE Freedom of Information applications to ACMA (government communications regulator) should be provided free of charge, in the public interest, because of the extent of the problems within the Ericsson AXE installed equipment which was being used right across Australia.

Telstra and ACMA were still withholding this Ericsson AXE data in 2008, [Judge] Mr G D Friedman considered this AAT hearing and, on 3 October 2008, stated to me in an open court in full view of two government ACMA lawyers.

“Let me just say, I don’t consider you, personally, to be frivolous or vexatious – far from it.

“I suppose all that remains for me to say, Mr Smith, is that you obviously are very tenacious and persistent in pursuing the – not this matter before me, but the whole – the whole question of what you see as a grave injustice, and I can only applaud people who have persistence and the determination to see things through when they believe it’s important enough.”

Absent Justice - Thomas Jefferson

Thomas Jefferson said:

"The end of democracy and the defeat of the American Revolution will occur when government falls into the hands of lending institutions and moneyed incorporations."

Sadly, what was predicted in 1816, more than 200 years ago, by undoubtedly America's finest president, happened during the COT arbitrations (see Chapter 5 - US Department of Justice vs Ericsson of Sweden) and is still happening in the USA USA, BritainAustralia and the once-free world (see Transparency International Australia).

While we cannot say that Ericsson and Lane are the moneyed incorporations Thomas Jefferson referred to when making that statement. What we do know is. the Australian government should never have allowed Ericsson to purchase Lane in arbitration the government had endorsed. This selling off of Lane disallowed the COT Cases every reasonable chance of fully proving their claims and as appealing them within the six-year statute of limitations allowed. In my case, after Ericsson purchased Lane, they also purchased all of my Ericsson AXE arbitration claim material which Lane never released back to me before they were sold off to Ericsson.  

Australia must be the only country in the Western world that allows a witness [Lane Telecommunications Pty Ltd] to be purchased during an arbitration process by the company they are officially investigating.

And as for bribery in the case against Telstra, Senate Evidence File No 21 shows Telstra paid kickbacks and bribes to several Australian politicians. In my case, two of those Australian politicians had been heavily involved in investigating Telstra's unlawful conduct before my arbitration's commencement and during it.

Perhaps even worse, one of those politicians provided Telstra’s arbitration executives with confidential government party-room information concerning my arbitration matters.

The fact that Ericsson was being investigated for providing known deficient equipment to Telstra when that same equipment was being removed from telephone exchanges around the world or had been removed at the time of the COT arbitrations was another matter that posed a significant issue where the COT Cases should have been given special consideration to allow them to appeal their awards if it could be proven that Lane did not value their Ericsson fault data submitted to arbitration as claim material.

This link: shows “Ericsson’s shareholders handed chief executive Börje Ekholm an unusual rebuke […], voting to hold him accountable for the telecom giant’s mishandling of the Iraq bribery scandal and revelations about possible payments to the Islamic State terror group.

“Shareholders, including the giant Swedbank Robur asset manager and a group representing small investors, refused to discharge Ekholm and the company’s board of directors from liability for the previous year; that means Ekholm and other board members could be held personally liable for their actions.”

Was purchasing Lane Telecommunications Pty Ltd by Ericsson during the COT arbitrations a form of bribery? Lane was supposed to be the official independent investigator of the ongoing problems affecting the Ericsson AXE telephone equipment to which the COT cases business telephone lines were connected.

Neither Lane nor the arbitrator made any finding on the COT cases’ claims that the Ericsson AXE telephone equipment was still affecting the viability of their businesses during their arbitrations.

Australia was a dumping ground for this known faulty AXE telephone equipment with a call loss rate from 15 to 50 per cent, as File 10-B Evidence File No/10-A to 10-f shows.


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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 on Alan's website

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 that can be downloaded from is possibly a world first.


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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

“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

“…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.”

Hon David Hawker

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

– Edmund Burke