February 1994 to March 1995
The Australian Federal Police First investigated our COT cases claims that Telstra was intercepting our telephone conversations and fax-transmissions in February 1994 with no finding at the conclusion of their investigations in March 1995.
This official Senate Hansard record dated 20 September 1995, under the heading A MATTER OF PUBLIC INTEREST shows a very emotional senator discussing the injustices that we four COT claimants (i.e., Ann Garms, Maureen Gillan, Graham Schorer and I) suffered prior, during and after our so-called government-endorsed arbitration’s i.e;
“Then followed the Federal Police investigation into Telecom’s monitoring of COT case services. The Federal Police also found there was a prima facie case to institute proceedings against Telecom but the DPP [Director of Public Prosecutions], in a terse advice, recommended against proceeding. …
The attached AFP transcripts (see Australian Federal Police Investigation File No/1) dated 26 September 1994, taken during their second interview with me concerning Telstra’s unauthorised interception of my telephone conversations and my further claims to both the government and AFP that it appeared as though my faxes were also being hacked I agreed to hand over to the AFP all fresh evidence received under FOI from Telstra that suggested I had been subjected to this unauthorised attack on my then civil liberties
Why didn’t the AFP advise the COT arbitrator their findings suggested arbitration-related documents were being hacked into before reaching their intended destination?
QUESTIONS ON NOTICE: On 15 February 1994, during my settlement /arbitration process, Senator Richard Alston (Shadow Minister for Communications) put a number of questions to the Senate Estimates Committee, On Notice, to be answered by Telstra. These are the questions most pertinent to the COT claimants (see Main Evidence File No/29 QUESTIONS ON NOTICE):
- Could you guarantee that no Parliamentarians who have had dealings with ‘COT’ members have had their phone conversations bugged or taped by Telstra?
- Who authorised this taping of ‘COT’ members’ phone conversations and how many and which Telstra employees were involved in either making the voice recordings, transcribing the recordings or analysing the tapes?
- On what basis is Telstra denying copies of tapes to those customers which it has admitted to taping?
- (A) How many customers has Telstra recorded as having had their phone conversations taped without knowledge or consent since 1990? (B) Of these, how many were customers who had compensation claims, including ex Telecom employees, against Telecom?
- Why did Telecom breach its own privacy guide-lines and how will it ensure that the revised guidelines will not be open to similar breaches or abuses?
- Could you explain why a large amount of documents accessed by customers under FOI have a large amount of information deleted, including the names of Telecom employees who wrote and received memos and documents?
- How many customers who have alleged that Telecom has tapped or bugged their phones without their consent or knowledge are the Australian Federal Police currently investigating?
The response to Question 5 (see Main Evidence File No/29) notes “…These matters are currently being investigated by the AFP and AUSTEL, and by Telecom;
It would be inappropriate for Telecom to make any further comments at this stage about possible breaches of the Telecommunications (Interception) Act while the matter is before the Federal Police. However, the Minister will be making a full statement in the near future on action taken to date to remedy apparent procedural problems within Telecom”.
Telstra’s claim (when referring to Question 5 On Notice) that it would be inappropriate for them to comment on these phone interception issues whilst the AFP were still investigating these matters is, in itself, the normal and expected comment that Telstra lawyers would have ensured that Telstra would make, under those circumstances. No other form of interception investigation by any other authority should have taken place whilst the AFP was still investigating these breaches of privacy issues because that might well have undermined the AFP process.
Before I signed for my arbitration, on 21 April 1994, I used a similar response to questions from the Telecommunication Industry Ombudsman (the administrator of the arbitrations) when I advised the TIO that it would be unworkable for the Arbitrator to start my arbitration while the AFP had not yet concluded their investigation, particularly since the COT spokesperson and I were both seeking compensation from Telstra as part of our arbitration claims and in direct relation to Telstra’s breaches of the Interception Act. I still clearly remember, as if it was yesterday, that the TIO stated that he would tactfully carry out his own investigations, along with the Arbitrator, and that their investigation would not impede the then-present AFP investigations. As shown in our Front Page Part One, the arbitrator then allowed Telstra to cross-examine me regarding what the AFP had uncovered during my arbitration.
Telstra’s statement to the Senate Estimates Committee (at point 5) that: “It would be inappropriate for Telecom to make any further comments at this stage about possible breaches of the Telecommunications (Interception) Act while the matter is before the Federal Police”, clearly raises the question of why the COT Cases were forced into arbitration while the AFP were still investigating exactly the same breaches of privacy claims that were to also be investigated by the arbitrator because how can there be two investigations, by two separate bodies, into the same complaints, at the same time? What if the AFP and the arbitrator came up with conflicting findings? Which findings would the arbitrator then use to calculate and pay compensation?
Of course, it was an unworkable arbitration process while the AFP was involved.
What finally happened is that neither the AFP nor the arbitrator produced a record of any findings in relation to the (now proven) invasion of my privacy and it is now twenty-two years later, after no decision was made by either side, and it is the COT Cases who have been left to live with these undecided issues, regardless of the fact that it cost each of us hundreds of thousands of dollars just to take part in this arbitration facade.
January 1994: A Telstra arbitration liaison officer faxed this document to the TIO in relation to the appointment of an assessor for the Fast Track Settlement Proposal. The words across the top of this document, in the space that should record the sender’s business identification, are absent, and it records only the wording “Fax from” then followed by the fax number. The Scandrett & Associates Pty Ltd report discusses this “Fax from” issue (see Open Letter File No/12, and File No/13). The fact that a secondary fax machine installed in Telstra’s network during the arbitration process intercepted this document (see Hacking-Julian Assange File No 26) is another reason why this illegal interception of legal in-confidence documents should have been investigated during our arbitrations when these illegal acts were first discovered. Who were the faceless people who were soon termed the “forces at work”?
My Fast Track Settlement Proposal (FTSP) Accountant Selwyn Cohen sent me a fax on 21 January 1994 stating:
“I refer to your facsimile of 10.42am on 17th January 1994. The fax cover sheet refers to 7 pages being sent. Unfortunately, I only received 2 pages. Please forward the remaining 5 pages to enable me to begin the required work.” (See AFP Evidence File No 2-A to 2-C)
This was the fourth time between the Christmas period of 1993, that Mr Cohen had problems sending or receiving documents from me.
31 January 1994: A copy of Alan’s phone/fax account 055 267230, when compared with these two Telstra CCAS document FOI number K01410 and K01411 confirm someone within Telstra has hand-written the names of the people I had spoken to and/or faxed. (see AFP Evidence File No/3)
Transcripts from my interview with the AFP 26th September 1994 (see Australian Federal Police Investigation File No/1), confirm that the AFP were alarmed that Telstra had gathered private information about me including documenting on this CCAS data the names of the people who I had telephoned on a daily basis. This CCAS data information was supplied to Warwick Smith, and the Commonwealth Ombudsman’s office.
Stedman Cameron, Lawyers & Solicitors wrote to me on 2 February 1994, stating:
“We note that you did not receive two pages at all and only the number 2 from the third page and the signature from the last page of the facsimile sent to you at approximately 2.23pm on the 1st February, 1994. It was successfully sent approximately two hours later.” (AFP Evidence File No 2-A to 2-C)
Telstra’s FOI document (M34363) dated 4 February 1994 was not made available to the arbitrator or me during my arbitration, even though Telstra’s FOI numbering system (M followed by a number) clearly indicates to Telstra and the TIO’s office that I was still reporting problems with my fax transmissions during my FTSP process (see Hacking-Julian Assange File No 24).
8 February 1994, The Hon Michael Lee Minister for Communications writes to the Minister for Justice, the Hon Duncan Kerr, MP: (note: this document is held in Government archives.)
“I am writing to inform you that members of the group known as the Casualties of Telecom (COT) have contacted my Office regarding the Australian Federal Police inquires into voice monitoring by Telstra of their telephones.
Both Mr Graham Schorer and Mr Alan Smith of COT have informed my Office that they have information on Telstra’s activities in relation to these matters”.
‘Specification for Customer Premises Line Monitoring Equipment. 1.0 noting:
“The original direction from AUSTEL in relation to Difficult Fault cases required the installation of equipment to monitor a customer’s line at the customer’s premises as well as the exchange end. The equipment currently in operation in Telecom has some deficiencies in meeting this requirement. The Coopers & Lybrand Report recommended the development or purchase of such equipment. These recommendations are a fundamental foundation for a joint working party between AUSTEL and Telecom to develop the specifications for such equipment. The specifications should be finalised by December 1994”.
AUSTEL writes to Telstra on 10 February 1994 stating:
“Yesterday we were called upon by officers of the Australian Federal Police in relation to the taping of the telephone services of COT Cases.
“Given the investigation now being conducted by that agency and the responsibilities imposed on AUSTEL by section 47 of the Telecommunications Act 1991, the nine tapes previously supplied by Telecom to AUSTEL were made available for the attention of the Commissioner of Police.” (See Illegal Interception File No/3)
From 10-15 February 1994, we lost any chance we may have had for a Senate inquiry into, what the COT members believed, the unethical way Telstra continued to treat us. By mid-February 1994, it appeared that not only was Telstra treating us with sheer contempt, but also they were doing this in full view of the Senate. The COT members began to believe that no single person or organisation, anywhere in Australia, had the courage to initiate a judicial inquiry into the way Telstra continued to thumb their noses at the government.
On 25 February 1994: When this letter to Telstra’s Corporate Secretary from Fay Holthuyzen, Assistant to the Minister for Communications, Michael Lee, (see exhibit AS 772-a file AS-CAV 765-A to 789 is compared to the letter dated 3rd February 1994 Exhibit (AS 772-b) that I sent to the Minister’s office it is clear that I was concerned that my faxes were being illegally intercepted.
On the same day of 25 February 1994, an internal Government Memo confirms that the then-Minister for Communications and the Arts had written to me to advise that the Australian Federal Police (AFP) would investigate my allegations of illegal phone/fax interception. (See exhibit AS 773 file AS-CAV 765-A to 789.
The letter dated 2 March 1994, from Telstra’s Corporate Solicitor, Ian Row, to Detective Superintendent Jeff Penrose (see Home Page Part-One File No/9-A to 9-C), makes it quite clear that Mr Penrose was profoundly misled and deceived about the faxing problems I was having to deal with, as discussed in this letter. Over the years, many people have compared the four exhibits numbered (File No/9-C) with the interception evidence revealed in Open Letter File No/12, and File No/13 and promptly concluded that, if Ian Row had not misled the AFP in relation to my faxing issues then the AFP may have been able to stop Telstra from intercepting the various relevant AFP arbitration documents in March 1994, before any damage had been done
On 3 March 1994: this article appeared in the Portland Observer newspaper (AS 773-b) noting:
“Federal Police officers are investigating allegations of possible illegal activity on the part of Telecom Australia.
Officers from the Federal Police visited Portland last week and interviewed Cape Bridgewater Holiday Camp proprietor, Alan Smith, who is one of the four original members of COT (Casualties of Telecom).”
In February 1994, Detective Superintendent Jeff Penrose and Constable Melanie Cochrane of the AFP visited my business to discuss my concerns regarding the possibility my telephone conversations were intercepted and my faxes were not being received at the intended destination. During this visit, I spoke to Constable Cochrane regarding my concerns about the privacy issues connected to my singles club records, explaining I had provided the club members with a written assurance that I would not circulate their private information to anyone without first seeking their permission. For this reason, I was particularly concerned that it would not be fair to submit any of their private information into my Fast Track Settlement Proposal. Constable Cochrane commented that the TIO should contemplate suspending our settlement process until after the AFP finished their investigations into Telstra’s unauthorised interception of COT cases’ telephone conversations and in-confidence faxes.
The above issue surrounding the advice I received from Constable Melanie Cochrane of the AFP, is directly related to the serious matter that NONE of my single club bookings was ever valued as it should have as lost revenue to my business (see Australian Federal Police Investigations).
As my arbitration progressed, I continued to assist the AFP, under the direction of Detective Superintendent Jeff Penrose, who explained that it was my public duty to assist the AFP because I had raised my complaints with the Federal Government. Then, after Telstra’s arbitration liaison officer, Paul Rumble, began to threaten me, and then the arbitrator, Dr Hughes, ignored my request for an explanation of the reason behind those threats, and after those threats had finally become a reality, eventually the Hon Senator Ron Boswell took these matters to a Senate Committee Hearing on 29 November 1994, demanding that Telstra’s legal directorate explain why I should be threatened is such an appalling manner. ERC&A/Page 180 (See Senate Evidence File No 31) provides more details regarding these threats, particularly:
“Why did Telecom advise the Commonwealth Ombudsman that Telecom withheld FOI documents from Alan Smith because Alan Smith provided Telecom FOI documents to the Australian Federal Police during their investigation?”
After receiving a hollow response from Telstra, which the senator, the AFP and I all knew was utterly false, the senator states:
“…Why would Telecom withhold vital documents from the AFP? Also, why would Telecom penalise COT members for providing documents to the AFP which substantiate that Telecom had conducted unauthorised interceptions of COT members’ communications and subsequently dealt in the intercepted information by providing that information to Telecom’s external legal advisers and others?” (See Senate Evidence File No 31)
George Close, the technical consultant for the COT cases, visited my residence in Cape Bridgewater after I showed him Open Letter File No/12, File No/13, Front Page Part One File No/1, Front Page Part One File No/2-A to 2-E, Front Page Part One File No/4 and Front Page Part One File No/5. We discussed the effect of these intercepted/hacked faxes on my overall submission to the arbitrator. Mr Close later sent me an email, on 5 August 2011, to assist me with breaking open this terrible denial of justice to the COT cases (see Front Page Part One File No/26).
“I recall a discussion with Senator Ron Boswell during the late 90’s.
“He had been shown fax’s [sic] which had clear indication of change in the headers, indicating interruption in transmission by a third party or parties.
“He questioned whether it was possible that faxes to and from senators could be interrupted, read or copies.
“My response in the affirmative brought about an expression of extreme anger. Stating that if it could be proven that it occurred the offender(s) would be jailed.
“If required I am prepared to re-state this on an affidavit.”
So far, no one in Australia has even been brought to account, let alone jailed, for the terrible invasion of the COT cases’ private and business lives.
As recently as March 2018, compensation was being paid out in Britain to the victims of this hacking scandal see www.guardian.com/media/2017/apr/25/mirror-group-settles-phone-hacking-claims-with-undisclosed-damages). All of those victims are entitled to compensation because their lives will never be the same again. The uneasy feeling whenever they pick up the phone as they wonder ‘Is someone else listening in?’, ‘Does someone else now know that I am going away for the weekend?’ Those memories for those British victims will never go away. I know.
Many of those within the Establishment said that it was actually unconstitutional to force the COT cases into an arbitration process with Telstra while the Australian Federal Police (AFP) were still investigating Telstra for alleged phone and fax hacking of the COT cases’ businesses and, furthermore, it was acknowledged that it was clearly an unworkable process. This didn’t stop the arbitrations however, but it does raise a number of important questions:
- How could two separate investigations into Telstra, for allegedly unlawful conduct, be undertaken by two different organisations at the same time i.e an arbitrator as well as the AFP? As far as we can find, this situation is unheard of in any other Western democracy.
- While all the COT cases attempted to keep their individual small businesses going while their arbitrations continued, how could they be expected to submit a complex submission to an arbitrator and at the same time, assist the AFP with their investigations?
- Who decided that this situation would be allowed to continue?
Not only was it grossly undemocratic for these small-business people to be put into such a situation but, while these two investigations (the one run by the AFP and the arbitrations themselves) were being run concurrently. While these two investigations were being run concurrently, the Commonwealth Ombudsman was also investigating Telstra for acting unlawfully and outside of the Freedom of Information Act (FOI Act, 1984), for NOT supplying the COT cases with our promised FOI documents we needed to support our claims. That investigation started before the COTs signed their arbitrations and continued for the whole five-year period
How have many other Australian arbitration processes been subjected to this type of hacking? Is this electronic eaves-dropping, this hacking into in-confidence documentation still happening today, during legitimate Australian arbitration’s?
Exhibit AS 492-A file AS-CAV 488-A to 494-E is a letter dated 26 August 1998 from George Close (my previous arbitration technical consultant to the new Telecommunications Industry Ombudsman. The fax header records: Fax from: — 61 74 453198 — 17:54 which was Mr Close’s residential fax number. Our Main Evidence File (see Open Letter File No/12, and File No/13), is the technical findings of both Scandrett & Associates and Peter Hancock showing that they both agree that, if the wording Fax from: followed by the numbers of the various COT faxes does not also include the correct business identification of the respective COT business then that indicates that those faxes were intercepted by a secondary fax machine and then redirected on to the intended destination.
This intercepted letter from Mr Close was copied to the offices of twelve different Government Ministers in Parliament House Canberra, which then raises a number of very important questions. Since we constantly hear about politicians questioning how information has been leaked from the party room, could this be because even Government offices in Parliament House are also routed through Telstra’s Fax Streaming centre? Even if the Fax Streaming arrangement has been officially organised by those Government offices, what could be happening to the documents that go through that system, without the Government’s knowledge? Could it be that privileged, in-confidence material ‘leaks’ out of Parliament house through Telstra in this same way? Could it be that Telstra’s Fax Streaming process means that, around the country, private is not so private at all?
PLEASE NOTE: although the George Close exhibits are of poor quality (having been copied a number of times) the poor quality does not take away the truth that these exhibits when viewed together still prove our claims.
Exhibit AS 492-B file AS-CAV 488-A to 494-E, which is a report faxed by Mr Close on 16 April 1998, has the correct identification across the top of the page see 61-74-453198 — GEORGE CLOSE & ASSOC — 17:34. In simple terms, those with access to Telstra’s network were able to use ‘keywords’ so only certain faxes leaving Mr Close’s residence were intercepted. I have used these two examples because they were both sent at approximately the same time in the afternoon, although months apart.
My fax identification on the first fax dated 8th May 2001, to Ms Kirsten Musgrove FOI Coordinator Australian Communications Authority (ACA) and two-page accompanying letter see exhibit AS 514 file AS-CAV 495 to 541 reads: 18-5-2001 – 11:33 – FROM CAPE BRIDGE HDAY CAMP to 0262195499 P.01, is my correct fax identification. The fax identification on the copy of my letter dated 4th July 2001, to Tony Shaw, Chairman of the ACA after it had been faxed to Mr Shaw’s Canberra office exhibit AS 515 file AS-CAV 495 to 541 on 5th July 2001, reads: Fax from: 055 267 230 – 05/07/01 – 04:41, is incorrect because the FROM CAPE BRIDGE HDAY CAMP identification has been removed;
My telephone/fax account exhibit AS 516 file AS-CAV 495 to 541 lists Exhibit (AS 515) as having transmitted successfully to Tony Shaw’s Canberra office, 0262195200 at 04:42am. The 4:44 minute transmission time shown on (AS 516), confirms (AS 515) were faxed from my private residence 03 55 267265.
Who within the Telstra Corporation has the authorisation to intercept faxes leaving my private residence (seven years after my arbitration)?
Exhibits AS 494-C, AS 494-D and AS 494-E clearly show that Telstra technicians experienced major problems when they attempted to test my fax machine in conjunction with a fax machine installed at Graham Schorer’s (COT spokesperson’s) office. It is important to highlight Exhibit AS 494-A because according to the arbitration agreement, all of my claim documents should have automatically been returned to me within six weeks after the arbitrator had handed down his findings. When this didn’t happen, I arranged to collect the documents myself and then drove to Melbourne to pick them up. When I got back to Cape Bridgewater I discovered that more than half of my original faxed claim documents were missing from the arbitrators official arbitration received schedule documents.
A comparison of Telstra’s official schedule of documents received with the dated fax accounts and the letters and documents that I had been faxing to the arbitrator during the whole duration of my arbitration has been documented in Exhibit (AS 789). This Exhibit shows there were some forty-one sets of documents that although they were faxed to the arbitrator’s office those documents were not forwarded on to Telstra’s defence.
The hand-written note in the top left corner of AS 494-C states: “Stored in Fax Stream”, confirming that faxes intercepted via Telstra’s testing process are stored in Telstra’s Fax Stream centre so the document can be read, at any time, by anyone with access to that centre. In other words, this storage system shows other types of documents (not just test faxes) can be intercepted in the same way and then stored in Telstra’s fax Stream centre so the document can be read, at any time by anyone with access to that centre.
The Scandrett & Associates report ( )proves that numerous COT arbitration documents were definitely intercepted, including faxes travelling to and from Parliament House, the Commonwealth Ombudsman’s Office and various COT cases premises, including Alan’s business. (AS 494-C) also shows that intercepted faxes were, perhaps still are, stored wherever it is that Telstra’s fax stream documents were/are stored. This means, in turn, that Telstra, the defendant in the COT arbitrations, had free access to in-confidence documents that the claimants believed they were only sending to their accountants, lawyers and/or technical advisors that the claimants might not have wanted to be disclosed to the defendants at the time.
If the Senate Estimates Committee had been provided with this evidence COT faxes were stored in a facility for assessment purposes, together with the George Close/Fax Stream interception evidence (AS 492-A above), all of the COT arbitrations would have been considered null and void and Telstra would have been ordered to compensate all of the COT Cases for all of their costs, both up to that time and while a new arbitration process was being set up to ensure the COT Cases received their discovery documents. This screening of COT Cases arbitration documents by someone with access to Telstra’s network has also been discussed in the various chapter on absentjustice.com forty and whether the Australian Government should have investigated these privacy breaches under Article 12 Universal Declaration of Human Rights which states:
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
Second and third alternative remedy pursued
These two investigations were conducted separately from September 1995 by Senator Richard Alston’s office (Shadow Minister for Communications) and when he became Minister for communications in March 1996.
December 1995 and March 1996 the Institute of Arbitrators Australia (IAA) agreed to investigate my claims raised against the arbitrator, Dr Gordon Hughes and the conduct of those who administered the first four COT cases.
We shall first introduce the Melbourne chapter of the IAA who showed particular concern that Dr Hughes was appointed by the Telecommunication Industry Ombudsman (TIO) to such a complex government-endorsed arbitration process when he was not even a graded arbitrator and who even, during my arbitration process, failed his arbitration exams to become a graded arbitrator of the IAA.
Perhaps even worse than this is the TIO had informed the government and four COT claimants that Frank Shelton, the then president of the Institute of Arbitrators Australia had drafted the arbitration agreement that was to be used for the first four arbitration. On 10 January 1994, Telstra’s lawyers Freehill Hollindale & Page faxed to the TIO office the agreement that was to be used for those four arbitrations. Mr Shelton then made cosmetic changes to that document and it was this document that we four COT Cases signed. After Dr Hughes had deliberated on the first of the four cases [mine] he wrote to the TIO Warwick on 12 May 1995 (see Open Letter File No 55-A) damning this same Telstra drafted agreement as not a credible document to have used advising it needed to be revised for the remaining arbitrations.
Surely at this point of time, these two lawyers Dr Hughes and Warwick Smith must have considered the possibility that Telstra’s lawyers had originally drafted this agreement with the deficiencies in it so as to benefit their client Telstra? In other words, when Dr Hughes uncovered these deficiencies he should have abandoned the four arbitrations and contacted the government who had endorsed the process advising them of how bad this Telstra drafted agreement was. Nether reported to the government the possibility that this grossly deficient arbitration agreement had been drafted this way to benefit the defendants Telstra. In fact, it was Warwick Smith who put out a public media release praising the first arbitration process two hours after receiving this 12 May 1995 letter (see Open Letter File No 55-B)
This letter dated 13 February 1996, from Mr Rundell to Mr Pinnock was written in response to Mr Ryan’s statements to Senator Richard Alston on 6 December 1995 and to Mr Pinnock 22 December 1995 (see directly below. In this letter, Mr Rundell states, “I did advise Mr Ryan the final report did not cover all material and working papers.” (See Open letter File No/45-E). But instead of Mr Pinnock providing this letter to me, within the statute of limitations period so I could use it in an appeal against Dr Hughes’ award, Mr Pinnock concealed it until 2002 – outside the statute of limitations for it to be used.
The final Ferrier Hodgson Corporate Advisory (FHCA) financial report referred to by Derek Ryan and John Rundell only provides statistics from the school camp bookings for valuing my losses. There is no reference at all to profits from the adult social club and singles club bookings, even though they made up 47 per cent of my business and were charged more than four times the school rate. I discovered, when FHCA eventually returned my claim documents, FHCA had a number of my singles club flyers, along with copies of various newspaper adverts regarding the adult weekends and copies of numerous testimonials from prospective adult patrons explaining their frustration at not being able to contact my venue by phone to make bookings.
On page seven of their final financial evaluation report, which both Telstra and I received, dated 3 May 1995, FHCA stated:
“An analysis of the clientele of CBHC [Cape Bridgewater Holiday Camp] shows that only 53% were in fact schools.” (See Open Letter File No 57-A to 57-D
There is an enormous difference between $30.82 for a two-night stay for school groups and $120.00 to $165.00 for a two-night stay for social club patrons. Knowingly downgrading my losses by a large percentage is verging on fraudulent criminal conduct.
The potential patron’s testimonials are also referred to in the AUSTEL [government communication regulator] report, of 3 March 1994 (See p33, point 85, AUSTEL’s Adverse Findings)
“As Mr Smith points out, the RVA message had the potential to severely damage his business. An important point in relation to the possible financial impact of the RVA message on the Cape Bridgewater Holiday Camp service is the camp’s dependence on group bookings. 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.”
I was also able to demonstrate to AUSTEL, when their representatives visited my venue, that singles club customers would regularly buy souvenirs before they left: purchasing printed Cape Bridgewater t-shirts, sweatshirts, postcards, headscarves and crafted driftwood plant arrangements. Schoolchildren didn’t have that sort of money and typically only bought postcards. FHCA ignored all the income I lost from my singles and social club bookings, i.e., the profit I made on the souvenirs as well as the $120 to $165 tariff per person for these customers.
In 1993, the Age newspaper reporter after visiting my venue for an overnight stay, after hearing about the type of outdoor back-to-nature activities I was providing for adult groups (if they could navigate their way through my very inadequate telephone system provided by Telstra). These activities included canoeing, horse riding, caving and bush-walking. A full-page report by The Age newspaper saying what a great escape for Victorians the Cape Bridgewater Holiday Camp was. However, Ferrier Hodgson Corporate Advisory and Dr Gordon Hughes decided their evaluation of the losses my business experienced should only be calculated on the school losses, and not the more lucrative up-market singles club and social club losses.
I attended Senator Alston’s Canberra Parliament House office in the company of The Hon David Hawker MP and four other witnesses in September 1995. After I told the senator that the arbitrator Dr Hughes and his technical units had, for reasons unknown, not investigated this serious ongoing lockup AXE fault, which was still affecting my business, the senator asked me to keep his office informed of any other issues the arbitrator would not investigate and to supply his office with that evidence.
At this September 1995 meeting, I reminded Senator Richard, about the discussion he had during a Senate Estimates Committee hearing in February 1994, in demanded answers from both Telstra and AUSTEL concerning an FOI document showing local Telstra technicians secretly applauding me for raising the ongoing problems, which were getting worse as more and more people connected to the Ericsson AXE telephone system. I advised the senator that the author of that previous document he raised in the Senate, who applauded me in secret in this FOI document, swore – under oath in his arbitration witness statement – that Telstra had always provided me with reliable phone service. The Senator was furious that here I was four months past my arbitration and still my ongoing phone problems had not been investigated. One of the other documents I provided to the Hon Senator Alston on this day, and which AUSTEL found most alarming, confirmed Telstra had concealed, from the government, a major network billing problem of national importance that affected many thousands of Telstra customers, including me (see Open Letter File No/4 and File No/5).
A similar document, headed Telecom Secret (see Call For Justice Evidence File 8), shows all very clearly that Telstra knew how solid my case was. The document states:
“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 poor grade of network performance over a period of several years; with some difficulty to detect exchange problems in the last 8 months.”
When the senator also heard that Ferrier Hodgson Corporate Advisory only used the school booking rates to value my claim, and discarded the more lucrative over-40s singles club and social club revenue, he stated that if he was back practising law he would challenge FHCA and those administering my arbitration. It was at the invitation of the Hon David Hawker MP that I travelled to Canberra (at my expense) to submit evidence that my arbitration had not been conducted under the agreed ambit of the arbitration procedures. In January 1996, I discussed this same Canberra Parliament House meeting with the Institute of Arbitrators Australia who made it clear my pursuing this issue with the IAA was the first correct approach.
I also advised Senator Richard Alston and The Institute of Arbitrators Australia that during my arbitration the TIO-appointed arbitration project resource unit FHCA and/or the arbitrator did not visit one singles club or convention centre to value the type of revenue these centres generated. They relied upon the Camping of Victoria (CAV) “school-needs survey” and Telstra’s financial experts using the IBIS Caravan Parks survey as part of their defence.
Senator Alston had also raised these same interception issues in the senate in February 1994 (see Main Evidence File No/29 QUESTIONS ON NOTICE). Between February 1994 and January 1995, the Australian Federal Police was investigating Telstra records as to how rank and file Telstra employees were able to transcribe on memos the names and phone number of a number of female members and Dr Hughes was fully aware that, under instruction from the AFP (see First alternative remedy pursued), I was not to openly submit names, addresses or any financial details of the members of my singles club, unless that information was provided only to the arbitrator under confidentiality. Obviously, it worked in Telstra’s favour for the arbitrator to only assess the school camp losses, rather than the singles club and social club losses.
It was in late February 1994, when the Australia Federal Police (AFP) had told us that we were obliged to supply them with all of the Telstra FOI documents that we had received, and which suggested that any of our telephone conversations and faxes to/from the AFP might have been intercepted, explaining that this was because this whole matter was now ‘before theGovernment’. We then told Robin Davey (Chairman of AUSTEL) exactly what the AFP had told us and asked Mr Davey if he believed we were legally bound to do as the AFP had requested, considering that these matters were to be assessed by the COT assessor. We were then ALL told that, as our matters were now part of an official Government-orchestrated investigation, which had been passed on to the AFP by AUSTEL under the direction of the relevant Minister, then we had no alternative but to supply the AFP with whatever related material we had uncovered because, after all, this investigation was for the good of the whole nation, as well as for any future investigations that might arise as a result of our co-operation.
Sometime later, while I was in Melbourne, in July 1994, as part of a discussion I had with John MacMahon, AUSTEL’s General Manager of Consumer Affairs, I reminded him of the two-day meeting the COT Cases had with AUSTEL on between 6 and 8 April 1994; I reminded him that it had taken place in AUSTEL’s headquarters in Melbourne, and I reminded him of Robin Davey’s instructions concerning our duty to provide our FOI documents to the AFP during the settlement process (which had now become an arbitration). I also mentioned the threats I had received from Telstra after they had somehow found out that I was still continuing to help the AFP. Later, on 26 September 1994, AFP Detective Sergeant Jeff Penrose told me that the AFP had NOT informed Telstra that I was continuing to provide the AFP with assistance, which clearly means that the only way Telstra could have obtained this information was either from listening to my phone calls to or from the AFP or by intercepting the FOI documents I faxed to the AFP. Mr Penrose’s off-the-record response was ‘sharp’, to say the least, especially since he was in no way obliged to comment at all.
I truly believe that Mr MacMahon was definitely shocked when I told him about this off-the-record conversation with Mr Penrose just as I believe that was why Mr MacMahon reminded me that, regardless of Telstra’s threats, I was still obliged to help the AFP. He also explained that, if those threats from Telstra continued, then I should raise them with the arbitrator because these matters were now part of my arbitration and so AUSTEL could not become involved. Mr MacMahon used words to the effect that, as AUSTEL had passed on this part of their own investigation into COT matters, and the AFP had instructed us COTs that we were legally obliged to assist the AFP and the Government (particularly since the Government had passed our matters to the AFP in the first place), then we had no choice but to continue to help the AFP wherever we could. We were told that, under these circumstances, the arbitrator could not penalise ANY of the COT claimants for raising these matters with the AFP, outside of the arbitration process. Mr McMahon also maintained that Telstra’s threatening manner, and the wider ramifications for the overall submission of my claim, should also be raised with the TIO, Warwick Smith.
Most if not all of the issues surrounding why the COT Cases had concerns that the AFP investigations should not be running at the same time as the COT arbitration was known to both Senator Alston and Senator Boswell. No one would come to the COT Cases aid, Telstra and their threats were allowed to continue as our story so clearly shows.
So when it was revealed to Senator Alston by The Hon David Hawker that my singles club information had not been assessed by the arbitration process because I had been instructed by the AFP not to disclose and of the privacy issues associated with my single club members personal information the Senator was taken back (shocked) that this might be the real reason why Ferrier Hodgson and Dr Hughes had not provided a full formal complete financial report for assessment during my arbitration.
On the 6 December 1995, (after this September 1995 meeting), Derek Ryan, my arbitration accountant wrote The Hon Senator Richard Alston, then Shadow Minister for Communications, stating:
“Over the last 2 years I have acted as an independent accountant for Alan Smith and I prepared the independent assessment of his losses and damages which formed part of his submission to the arbitrator, Dr G Hughes.
“In response to accounting documents and evidence submitted to the arbitrator, he appointed Ferrier Hodgson Corporate Advisory (Vic) Pty Ltd.(‘FHCA’) to support him in assessing the losses and damages.
“The FHCA report was inaccurate and incomplete. I have since been advised by a staff member of FHCA that a large amount of information was excluded from their final report at the request of the arbitrator. This has left the report in an incomplete state and it is impossible for anyone to re-calculate or understand how the FHCA loss figures were determined. This effectively meant that it was impossible to challenge the assumptions, calculations and the time periods used in the FHCA report.” (See Open letter File No/45-E)
On the 22 December 1995, Derek Ryan wrote to TIO John Pinnock, noting:
“The Ferrier Hodgson Corporate Advisory (Vic) Pty Ltd (‘FHCA’) report was dated 3 May 1995 and I received a copy of the report on 5 May. After discussions with Alan Smith it was decided that I should reply to the report as soon as possible.
“I worked all day Saturday and Sunday with Alan Smith trying to interpret the FHCA report. After this work I considered that the report was incomplete as the calculations of the FHCA loss figures were not included in their report. …
“In 17 May I telephoned John Rundell and he stated that he was unable to discuss anything with me until the appeal period had expired. … He then stated that he understood my problems and that FHCA had excluded a large amount of information from their final report at the request of the arbitrator.” (See Open letter File No/45-E)
Mr Rundell has never refuted Derek Ryan’s statement in a letter he wrote to John Pinnock (the TIO), in relation to my arbitration financial losses, which noted that: “On 17 May I telephoned John Rundell and he stated that he was unable to discuss anything with me until the appeal period had expired”, even though that statement: “… until the appeal period had expired”, reveals the true calibre of Mr Rundell’s attitude, i.e. he recognised the advantages for Telstra if the COTs were forced to wait for the appeal period to elapse before they even began to expose the truth.
Back before the arbitration began
On 21 April 1994, on the day we signed our arbitration agreement (under duress), after being threatened by the TIO officials that, if we did not formally agree to exonerate the arbitration financial advisors, Ferrier Hodgson Corporate Advisory (FHCA) and DMR (Australia), from any liability in relation to their involvement in the arbitration process, then there would be no arbitration and we would, therefore, be left with only one alternative, the enormous costs involved in taking Telstra to court for not providing us with a decent telephone service, even though Telstra (as a government organization) had a legal responsibility to provide us all with a service comparable to our competitors.
As small businesses, none of us could afford to even think about entering into what was sure to be a drawn-out and expensive legal process with a government-owned corporation with a bottomless public purse available to fund their defence and so we were forced to agree to exonerate FHCA from all liability. This meant, of course, that we could never sue FHCA for negligence in connection to our arbitrations. Then, when those arbitrations began, it was like being caught at the wrong end of a shooting range for the COTs because FHCA was also, secretly, appointed to decide which discovery documents the arbitrator would see and which would be concealed from assessment altogether.
A Secret Deal
Telstra’s Arbitration Liaison Officer Steve Black wrote to Warwick Smith the TIO on 11 July 1994 (see My Story Evidence File/16) stating:
“Telecom will also make available to the arbitrator a summarised list of information which is available, some of which may be relevant to the arbitration. This information will be available for the resource unit to peruse. If the resource unit forms the view that this information should be provided to the arbitrator, then Telecom would accede to this request”.
The statement in Telstra’s letter “if the resource unit forms the view that this information should be provided to the arbitrator” confirms that both the TIO and Telstra were aware that the TIO-appointed resource unit had been assigned to vet most, if not all, the arbitration procedural documents en route to the arbitrator. If the resource unit decided a particular document was not relevant to the arbitration process, it would not be passed on to the arbitrator or other parties.
Was there a more sinister reason behind Telstra’s decision to withhold the more relevant documents from the claimants by channelling them through Ferrier Hodgson Corporate Advisory (FHCA, the Arbitration Resource Unit), particularly since FHCA later admitted, in writing, on 2 August 1996, to knowingly withholding some of the most relevant documents so they would not be investigated during the arbitration process, which would have certainly been of great assistance in helping to minimize Telstra’s liability?
In my case, some of the most important documents (which would actually have won my case if they had been supplied to me in time) were withheld until after Dr Gordon Hughes (the Arbitrator) had handed down his findings. This fact was known
During this September 1995, meeting I also explained that I could provide evidence to the senator that Telstra had knowingly perverted the course of justice by deliberately tampering with evidence during my arbitration (see Chapter One to Three in our Tampering With Evidence) page. Perhaps it should be noted here that Senator Alston had been a Barrister at the Victorian bar before becoming a Government Minister and so he then assured me that, since I had now officially provided him with information regarding how senior Telstra staff had condoned this unlawful behaviour; and since Telstra had carried out this unlawful behaviour against an Australian citizen while that person was involved in a Government-facilitated process with Telstra; and since this unlawful behaviour had occurred while Telstra was still entirely owned by the Government, then the Telecommunications Act and the Trade Practices Act would provide the Senator with the opportunity to officially question Telstra about the validity of my claims, on notice, through the Senate.
At the end of this meeting, David Kennedy who was assisting Senator Alston at this meeting asked me to continue to provide further evidence to his office (which I did) so as the senator was kept up to date with what had been truly a terrible outcome for me.
As stated in our 2 of 12 alternative remedies pursued page, in March 1996, the John Howard government won office and Senator Alston became the new minister for communications. Paul Fletcher, who was now also assisting Senator Alston, asked me to continue helping the senator with these telecommunication issues.
It will be apparent from our 2 of 12 alternative remedies pursued page and the following information (see Open Letter File No/41/Part-One and File No/41 Part-Two), that the wind changed and my valid claims were suppressed – and are still being suppressed, as of 2020.
It is important we again discuss a letter I received from Mr Paul Fletcher dated 4 September 1996 (see 2 of 12 alternative remedies pursued) where he noted:
“In addition, I have examined the material you sent me. On the basis of the information I have received, I do not believe that there is any action in relation to your case that would be appropriate for the Minister to take at this time. The Minister has no power to intervene in the conduct of the COT arbitrations. which are being administered by the Telecommunications Industry Ombudsman.”
As a result of this discussion with Senator Alston I then sent his office a copy of an eighty-eight-page report, I had compiled, together with various supporting Exhibit documents. This report detailed the way Telstra had broken the law by tampering with Government-owned equipment during my legal arbitration process, which was being conducted under the auspices of the Supreme Court of Victoria. This was the report that Paul Fletcher eventually returned to me (as the following link Open Letter File No/41/Part-One and File No/41 Part-Two) shows.
I also have conclusive evidence of how, years after Mr Fletcher had returned my June 1996 report, other bureaucrats in the Department of Communications Information Technology and the Arts (DCITA) began investigations into other areas of my claims and instead of the department investigating my claims they sent this material straight to Telstra to ask if my claims were valid, which is a bit like a police officer asking a thief caught stealing a car if he should be charged for that theft! Interestingly, Paul Fletcher had previously worked at that DCITA too.
I have again highlighted the DCITA decisions in this Second alternative remedy pursued segment because, both Senator Richard Alston and the Institute of Arbitrators Australia requested I provide them with a copy of this report Open Letter File No/41/Part-One and File No/41/Part-Two). I know for a fact that Mr Hawker did not receive any information about this report because he told me, on two separate occasions, that he had not received any follow-up information at all from the Senators office concerning the damning content contained therein, which further indicates that Senator Alston was never advised of the significance of that report either. However, the Institute of Arbitrators Australia viewed the same report which prompted them to advise me to contact Laurie James the then President of the Institute so as he could officially pursue this matter. Did other DCITA bueaucrats receive this elusive damning report only to advise Mr Paul Fletcher it had no merit? A busy government office like the DCITA could have easily missed the significance of why I provided Open Letter File No/41/Part-One and File No/41/Part-Two). to Senator Alston.
It is most important to note also during Senator Richard Alston’s investigation (see First alternative remedy pursued page) on 11 July 1996, when as a member of AUSTEL (now ACMA) the Deputy TIO wrote to the Senator attaching the sixth status report on AUSTEL’s recommendations of the COT Cases report (see Call For Justice Evidence File/87) which notes on page 12:
“The TIO believes that Telstra has, in all claims, responded in an overly legalistic manner. It has shown a tendency to deny liability under every potential clause of action on the basis of perceived statutory and contractual immunities.
It has provided large and detailed defences, often out of proportion to the size or complexities of claims. It has lodged lengthy and detailed requests for further and better particulars in most arbitrations. In short, while the arbitration procedure has sought to relax the legal burdens, Telstra’s conduct has certainly not.”
This is the same Deputy TIO, administrator to my arbitration who I provided conclusive evidence (see Burying The Evidence File 2). that Telstra was destroying evidence I had requested in May 1994. As the facilitators of the process, AUSTEL (now ACMA) had a duty of care to inform the Minister that AUSTEL was provided evidence, which confirmed that Telstra was acting unlawfully during my arbitration by destroying and/or altering, requested FOI documents.
Furthermore, had this Deputy TIO and other officers of AUSTEL (refer to the following AUSTEL FOI document folio 94/0269-05 – 22) acted appropriately and informed the relevant Communications Ministers at the time that Telstra was destroying requested FOI documents, not just withholding them, there may well have been a thorough Senate enquiry into this unlawful conduct by Telstra.
When this information is added to the second appointed TIO’s statement that the arbitrations were conducted ‘the arbitrator had no control over the process because it was a process that was conducted entirely outside the ambit of the arbitrations procedures’, this certainly seems to add more weight to those rumours suggesting that the arbitrator had was forced to use Telstra’s drafted arbitration agreement (rules) and it was never his intention of doing so. Threats were nothing new to the COT claimants.
Even though the Institute of Arbitrators Australia agreed to investigate my claims against the arbitrator, they have chosen not to make a finding on my 21 submissions without explaining why could it be that the COT arbitrations were conducted so appallingly? Could it be that this was not the only instance of using the Commercial Arbitration Act 1984 as a shield to protect those in power, who therefore appear to have that same power over the firstly, the IAA and secondly the Institute of Arbitrators and Mediators Australia (IAMA)?
As shown above, by November 1995, the Institute of Arbitrators Australia had agreed to view why the arbitration process had not been conducted under the Commercial Arbitration Act of Victoria which was registrable as an order of the Victorian Supreme Court.
We need perhaps to jump forward some eighteen months so as the reader is fully aware that the Commercial Arbitration Act of Victoria (which the COT arbitrations were conducted under) provides that an award by the arbitrator is registrable as an order of the Victorian Supreme Court. To further support this fact on 26 September 1997, after most of the arbitrations were concluded, the second appointed administrator to the COT arbitrations, John Pinnock, officially advised the government (see pages 97 and 98 COMMONWEALTH OF AUSTRALIA – Parliament of Australia) that:
“However, under the rules of the fast-track arbitration procedure, the original CoT, or CoT four, claimants were actually entitled to discuss their respective proceedings and claims with each other. Finally, both of the arbitration procedures provided that where their rules were otherwise silent the proceedings were to be governed by the Commercial Arbitration Act of Victoria. Significantly, that provides that an award by the arbitrator is registrable as an order of the Victorian Supreme Court, and the act confers basically what is a limited right of appeal against any award by the arbitrator”.
However, I never learned that an award by the arbitrator is registrable as an order of the Victorian Supreme Court, and the act confers basically what is a limited right of appeal against any award by the arbitrator, until I met with the Institute of Arbitrators Australia (IAA) in November 1995, six months after my arbitration had been prematurely brought to a conclusion. When the Institute learned that the arbitrator Dr Gordon Hughes had not been appointed by the Institute as well as Dr Hughes not been a graded arbitrator it was suggested by the Chapter of the Melbourne (IAA) that I should write to Laurie James, who was then the President of the Institute of Arbitrators Australia and ask for an investigation into our arbitration processes.
Back then though, in November 1995, I was not aware that both Ann Garms and Maureen Gillan would eventually be given more than thirteen months longer to submit THEIR claims, than the much shorter time that Dr Hughes allowed ME, in which to submit my claim. Neither did I know that one of the other COT Cases, Graham Schorer, had been a client of Dr Hughes over a number of years, before joining the other COTs in our arbitrations and I did not know that Graham would actually be given more than three years longer to lodge his claim than the arbitrator allowed me, and more than two years longer than the arbitrator allowed Ann Garms and Maureen Gillan (see Conflict of Interest). This issue clearly upset the Institute in Melbourne because it was clear to them, from the paperwork I provided about our arbitrations, that each of us first four COT claimants had signed a copy of the same agreement and that agreement only allowed us one month each in which to submit our claims and one more month to respond to Telstra’s defence of that claim. It was at this point that I was warned that Dr Hughes was not a graded arbitrator of the Institute.
The collusion and deception that was exposed to the Institute did not finish there, however, and neither did that collusion and deception stop, even after I contacted Laurie James, as the following chapters show.
Between 18 October 1995 and 4 October 1997, 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 on my matters. Home Page File No/82 confirms Mr Wynack did not believe Telstra’s claim that it destroyed the file. I also tried to access a copy of the same arbitration file held by the TIO office, which, as the administrator of my arbitration – under the law – had to retain a copy for at least six years: until 2002. Mr Pinnock’s letter, of 10 January 1997, in response to my 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)
On 17 February 1996 Dr Hughes wrote to Laurie James, President of the Institute of Arbitrators (see above) attaching a copy of John Rundell’s letter of 13 February 1996 to the TIO). In this letter, Dr Hughes advised Laurie James:
“I consent to you disclosing this letter to Mr Smith, save that I do not consent to the disclosure of the attached correspondence from third parties.” (See Prologue Evidence File No/8-E)
Long before Mr Rundell and Dr Hughes wrote their letters in February 1996, AUSTEL, the government communications regulator, officially advised Mr Pinnock (see Open letter File No/46-K, dated 3 October 1995) and Mr Rundell (see Open letter File No/45-A, dated 15 November 1995) my concerns were completely valid and that NONE of the billing claim documents I legitimately raised in my 1994/95 arbitration process was investigated (or even addressed) during my arbitration process. Still, however, Laurie James was deliberately misled and deceived, not just by the arbitrator but also by the official administrator of the same arbitration. Mr James was the very person who could have asked so many seriously disturbing questions about why my arbitration was not conducted according to the ambit of the arbitration procedures.
Anyone reading my letter to Gareth Evans, dated 4 January 1996 (see Open Letter File No/49), will conclude I raised some very serious issues, which affected all the arbitrations still in progress.
Dr Hughes’ letter to Laurie James, under the heading “Letter to Senator Evans,” states:
“Mr Smith provided you a copy of a letter to Senator Gareth Evans dated 4 January 1996. I presume you require me to comment on those aspects of the letter which reflect upon my conduct as an arbitrator.
“The letter to Senator Evans is littered with inaccuracies. Some examples are:
Why did Dr Hughes deceive Mr James in relation to these 24,000 documents, which Dr Hughes and his team could not possibly have read and collated? Why did the arbitrator tell Mr James that all those documents were assessed?
The Canadian and Australian technical consultants’ 30 April 1995 reports, under the heading “Cape Bridgewater Documentation,” states “More than 4,000 pages of documentation have been presented by both parties and examined by us.” (See Arbitrator File Nos/29 and 30) These reports are covered more thoroughly in other pages.
And at point 2.2 on page 4, in Dr Hughes’ final award, dated 11 May 1995, he notes, “In all, I have read in excess of 6,000 pages of documentary evidence submitted by the parties.” (See Prologue Evidence File No/9-A)
If either Mr James or Senator Evans were provided with the truth surrounding these 24,000 documents, my arbitration matters could have been completed in early 1996. So far, the arbitrator and the TIO office have managed to avoid being called to account for their devious and unethical conduct. Will they ever be held accountable?
Arbitrator File No/45 shows that on 30 March 1995 – 11 months before the arbitrator’s letters to Mr James – the arbitrator’s own resource unit wrote to the TIO outlining the progress of my arbitration. The timeline shows I advised them I received my discovery documents via the agreed-to FOI process after my claim was finalised and after Telstra had submitted their defence of that claim.
John Wynack, Director of Investigations for the Commonwealth Ombudsman’s Office, and Tony Morgan, a National Chief Adjuster for GAB Robins (Australia), are both fully aware that most of these 24,000 documents were not related to my Cape Bridgewater business in any way. Not only did they not have any identification or schedules to explain where they were sourced from, but it was quite clear that some belonged to the Fortitude Valley and Lutwyche telephone exchanges in Brisbane, more than 1,200 kilometres from the telephone exchange my business was connected to. Clearly, this delivery of so many useless documents was deliberately designed to cause me as much heartache as possible.
More than 16,800 of those FOI documents were meaningless without the schedule detailing their relevance; I had only 13 days to address Telstra’s defence, with documents I had no way of reading.
When I advised Warwick Smith, the Telecommunications Industry Ombudsman (and administrator to my arbitration) about this terrible situation, being left with only 13 days to decipher what documents belonged to me and which belonged to the two other COT cases, he said to contact Dr Hughes, the arbitrator. However, the arbitrator’s office informed me that Dr Hughes had taken his usual Christmas break, which meant the 13 days left for me to answer Telstra’s 12 December 1994 defence would be over by the time Dr Hughes returned from leave. Warwick Smith’s response to this was: do the best you can.
There was also no mention in Dr Hughes’ letter to Laurie James concerning the documents provided by Telstra were not intended for me or that Telstra had continued to withhold the main arbitration requested document namely the Portland/Cape Bridgewater telephone exchange logbook, which was requested under FOI and through the process of discovery. Dr Hughes was aware Telstra had not released the exchange logbook, which had the working notes of all my telephone complaints and those of other local Telstra subscribers for the period of my claim. The veracity of logbooks is irrefutable, yet Dr Hughes would not request the Cape Bridgewater exchange logbook for me. The Commonwealth Ombudsman’s office also requested this logbook to be supplied but was unable to obtain it. (See Home Page File No 10 -A to 10-B)
My facsimiles and subsequent follow-up telephone conversations, on 4 and 5 May, advised Dr Hughes of the nightmare these late 24,000 FOI documents caused for me and I asked for an investigation into why so many FOI documents, without proper FOI schedules, had been dumped on me to late to submit into arbitration, actually belonged to Ann Garms and Maureen Gillan and therefore were useless.
On 5 May 1995, Dr Hughes wrote,
“I refer to your telephone message of 4 May and your facsimiles of 4 and 5 May 1995 and advise I do not consider grounds exist for the introduction of new evidence or the convening of a hearing at this stage.” He also reiterated his previous instructions: “any comments regarding the factual content of the Resource Unit reports must be received … by 5:00pm on Tuesday 9 May 1995” (See Arbitrator False Evidence File 1).
Dr Hughes cared little about the justice he denied me by not allowing me to submit those of the 24,000 FOI documents I could decipher. He also refused to convene a hearing to determine why Telstra’s threats – to withhold all future relevant FOI documents from me – came to fruition. Two of the questions I raised in my telephone messages of 4 May 1995 and facsimiles of 4 and 5 May 1995, was why had the arbitration technical report not been signed off and why had it only assessed 11% of my claim documents. It is clear from this letter and Dr Hughes 11 May 1995 award that he ignored both those questions.
On 27 February 1996, John Pinnock wrote to Laurie James, attacking my credibility. The TIO deliberately misinformed Mr James that I had telephoned the arbitrator’s wife at 2 am one morning:
“Mr Smith has admitted to me in writing that last year he rang Dr Hughes’ home phone number (apparently in the middle of the night, at approximately 2.00am) and spoke to Dr Hughes’ wife, impersonating a member of the Resource Unit.” (See Arbitrator File No /49)
Who advised the TIO that I telephoned at approximately 2 am? The telephone account for the evening in question (also in Arbitrator File No /49) confirms I called at 8.02 pm. It is bad enough to see the lies told regarding the actual time that I made this telephone call, but it is perhaps even worse to discover that my reason for making that call was concealed from Mr James. I phoned the arbitrator to alert him I had, that day – 28 November 1995 – received vital arbitration documents that I should have received during my arbitration and these documents definitively proved Telstra’s TF200 EXICOM arbitration defence report was manufactured to pervert the course of justice.
It was exciting to read that Telstra staff proved beer could not have stayed wet and sticky for 14 days – the time between the TF200 EXICOM leaving my premises and arriving at their laboratory. It was already evening but, in the heat of the moment, I rang the arbitrator’s home number. His wife answered and told me he was overseas and not due home for some days.
I was caught on the back foot; in my excitement, I had not considered the arbitrator would not answer the phone. I assumed the arbitrator had discussed the Parliament House rumours, concerning his use of a non-credible agreement, with his wife. I thought if she knew who was calling, she might be afraid I was ringing to accuse the arbitrator. Impulsively, I gave her another name: one I knew the arbitrator was familiar with – that of the FHCA project manager.
Later, I informed the TIO about my exciting find and that I tried to contact the arbitrator to pass on the news. I also explained I gave the arbitrator’s wife the FHCA project manager’s name, instead of my own, to prevent her from being alarmed. I asked him what he would do with this proof that Telstra had fabricated the beer in the phone story. The TIO responded flatly that my arbitration had run its course and he did not intend to involve his office in any further investigation. He said I should go to the Supreme Court of Victoria if I wished to take it further.
If I did write to the TIO, as he alleges in his letter to Laurie James, why didn’t the TIO produce my letter? The reason is, of course, that I never wrote any such letter. Just as deceitful as claiming I wrote such a letter, is the fact that the TIO’s letter to Laurie James was copied to the arbitrator.
Surely the arbitrator would have discussed my telephone call with his wife and been told by her that I had telephoned at 8.02 pm and I was, at all times, courteous and respectful.
Did Dr Hughes and John Pinnock allow Dr Hughes’ wife’s name to be used to stop Mr James from uncovering Dr Hughes letter of 12 May 1995 (see Chapter Five below)? Or was it to stop Mr James from investigating Telstra’s conjured TF200 report.
There is more to our story and the way in which Dr. Hughes allowed his good wife’s name to be used to stop an investigation into the now proven conjured ‘sticky beer’ substance TF200 Arbitration Report.
I doubt, even now 20-plus years after the event, Dr Hughes’ wife knows he used her to stop a transparent investigation by Laurie James, (then president of the Institute of Arbitrators Australia) into why her husband and John Pinnock (the second TIO) would not investigate the fresh TF200 EXICOM evidence that arrived on 28 November 1995, confirming that 11 months previously Telstra fraudulently manufactured their TF200 EXICOM arbitration report. I am sure Mrs Hughes would be alarmed that John Pinnock deceived Mr James by advising I wrote to him stating I telephoned Dr Hughes at 2.00 am when no such letter ever existed. John Pinnock’s letter, dated 27 February 1996, was also copied to her husband. Why did Dr Hughes allow such a letter to be sent when he must have known I did not telephone his wife at 2.00 am at all: I telephoned at 8:02 pm to tell Dr Hughes what this fresh evidence finally revealed (see Tampering With Evidence).
This tampering with evidence after it left my premises raises a most important question: why has the Australian government not advised the Telstra board that Telstra have both a legal and moral obligation to rectify these as a matter of public interest because this tampering with evidence, during a litigation process, was committed when the Australian Government and its people owned the Telstra Corporation.
After Dr Hughes letter of 17 February to Laurie James and John Pinnock’s subsequent letter, of 27 to Mr James, the Institute abandoned their investigations into my complaint against Dr Hughes.
Because the poor timeframes in the arbitration agreement did not allow for the late submission of information, such as my singles club material, Dr Hughes granted the remaining three COT cases, Ann Garms, Maureen Gillan and Graham Schorer, more than 13 months longer than he allowed me, in which to submit late-received material. Why didn’t Dr Hughes advise Laurie James of this? All four of us signed the same arbitration agreement in April 1994.
Australian Federal Police Investigations and Chapters One to Five in our Prologue page provide more detail regarding the privacy issues regarding the names, addresses and phone numbers of my over-40s singles club members. I was officially advised by the AFP to NOT provide the arbitrator and Telstra with these details while Telstra was still being investigated for the unauthorised interception of my telephone conversations. These interceptions included incidences where female members’ personal data was recorded: Telstra could have only obtained this information by intercepting my telephone conversations or faxes. Telstra’s admission to the AFP about this unauthorised monitoring is recorded in our Australian Federal Police Investigations page.
Third alternative remedy pursued between in 1998
It is also important for anyone who reads our Open Letter File No/41/Part-One and File No/41 Part-Two, to understand that although a copy of that report dated June 1996, was originally sent to Paul Fletcher at his request, during the period he was an adviser to Senator Richard Alston (the then-newly appointed Minister for Communications and the Arts) it was also sent to the Commonwealth Ombudsman’s office as well as the then Australian Securities Commission (now ASIC). I can only assume that it was this report Open Letter File No/41/Part-One and File No/41 Part-Two, that first prompted Mr Alan Cameron, chair of the Australian Securities Commission to originally agree to investigate my complaints.
After reading Open Letter File No/41/Part-One and File No/41 Part-Two, it will become clear that the exhibits and evidence that were attached to the report show that, if Paul Fletcher (now the Minister for Communications and the Arts in the current government had properly investigated that evidence in June 1996 then most (if not all) of the issues that I have been trying to have investigated since then, would have been settled in 1996.
To support my claims that Anthony Hodgson misled ASIC or his own company misled him regarding less them only assessing less than 11% (eleven per cent) of my legally submitted claim see the following points
Point 1, 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,” (seeArbitrator 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 Arbitrator File No/28)
Point 2, 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.
Garry Ellicott and Barry O’Sullivan (my claim advisors) had definitely submitted a very comprehensive list of fault complaints as part of my submission (see Arbitrator File No/31 & 32). One of those reports was a full chronology of events to assist with reading the comprehensive log of fault complaints. Were these documents lost on route to the arbitrators office via Australia Post or the very inadequate faxing system at Dr Hughes’ office (see exhibit G Schorer 717-G stat dec and letter to IAMA)? 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 Chapter One Bad Bureaucrats)
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.
Why should my arbitration claim be penalized because of the inadequate handling of the arbitration material once it reached the arbitrator’s office?
Point 3, The next damning letter was from John Rundell (FHCA) 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.” (see Prologue Evidence File No 22-A)
The four COT claimants Ann Garms, Maureen Gillan, Graham Schorer and (me) were never told about any of these so-called “forces at work” and nor were we ever warned that, under the nose of the TIO, the TIO’s legal advisor and the Arbitrator, these un-named “forces at work” were allowed to infiltrate and manipulate the arbitration process wherever and whenever they desired, but always with the aim of helping Telstra to defeat the COT claimants.
Point 4, When these three legal experts, (i.e. Dr Gordon Hughes, Warwick Smith and Peter Bartlett) allowed this very important letter of 18 April 1995 to be hidden from the four COT cases, those so-called ‘legal experts’ directly assisted those “forces at work” to carry out their intended disruption of all four of the COT cases’ arbitrations. If John Rundell had sent a copy his letter to the four COT cases, as he should have, all four of us could have approached the Federal Government at once because, with Mr Rundell’s letter as evidence, we would certainly have had a very reasonable chance of being granted the rights to have all four processes reviewed and amended, at the very least. And don’t forget, it was the Federal Government who had originally endorsed those first four Fast Track Arbitration Procedures.
By viewing exhibits Open Letter File No/41/Part-One and File No/41 Part-Two, as well as exhibits Open letter File No/45-A to 45-I and comparing them with Open letter File No/46-A to 46-L to File No/47-A to 47-D, it will be clear my claims against the conduct of the arbitrator and FHCA are valid.
Why then did Anthony Hodgson, the chair of Ferrier Hodgson Corporate Advisory (the arbitration financial resource unit), write to Alan Cameron, chair of the Australian Securities Commission (see Open letter File No/45-I), on 17 March 1998, advising that I was wrong: ALL of my claim documents were addressed during my arbitration when the above-aforementioned points and exhibits show they were not addressed at all. This statement by Mr Hodgson to ASIC was clearly misleading and deceptive conduct. If he wrote on advice he received within his own corporation, then his own company members and partners within profoundly misled and deceived him and when this possibility was brought to his attention and the attention of John Pinnock (the second TIO) the truth of the matter was not relayed back to ASIC.
Had the Australian Securities Commission not been misled and deceived in March 1998, less than three years after my arbitration concluded, and instead made a finding that my claims were justified, as the attached exhibits on absentjustice.com show, then I could have challenged at least one of the sections in the arbitrator’s award, as 1998 was well within the statute of limitations time-frame allowed.
Fourth alternative remedy pursued between 1998 to 2001
During 1998/99, the Major Fraud Group Victoria Police asked me to supply any evidence I had of Telstra committing fraud to support its defence during my 1994/95 arbitration. It was common knowledge in government circles that Telstra, indeed, used fraud in defence documents, as well as submitted false information to the Senate in September and October 1997, concerning this same fraud. As I did during my 1994 arbitration, when I assisted the Australia Federal Police during its investigation into Telstra’s unethical conduct towards me (see Senate Evidence File No 31), I agreed to assist the Victoria Police in their 1998 investigations into similar acts of misconduct towards fellow Australian citizens.
It is important to raise the Victorian Major Fraud Group’s police involvement in the COT cases’ matters (as well as a number of parties associated with the Major Fraud Group), as it is clearly linked to our An Injustice to the Remaining 16 Australian Citizens page. I was not one of the four COT cases’ litmus group, who, through Sue Owens (barrister) lodged complaints against Telstra with the Major Fraud Group in 1999. I was seconded some months later as a witness. The litmus COT cases provided my evidence of Telstra committing fraud against me, during my arbitration to the Senate estimates committee during their FOI investigations. Despite this, the chair of the Senate estimates committee discarded my evidence (even though it had been provided On Notice to Senator Ron Boswell).
It was this discarded evidence the Major Fraud Group asked me to supply at the request of their barrister, Neil Jepson.
After I provided the contents of (see Telstra’s Falsified BCI Report to Neil Jepson, the Major Fraud Group asked me to assist them in compiling this evidence for their investigations. I did this over two separate visits to Melbourne spending two full days at the Major Fraud Group’s St. Kilda Road offices. This is important to the litmus tests cases issue because the Major Fraud Group was stunned at the evidence and how I was able to prove Telstra definitely perverted the course of justice, on two occasions, by submitting false evidence to Dr Hughes, the arbitrator appointed to my case.
I ask you to consider two witness statements, dated 8 and 10 August 2006, referring to the 1999 and 2001 Major Fraud Group investigations: one statement was prepared by a government public servant/ex-police officer and the other by an ex very-senior Telstra protective officer (later promoted to the principal investigator). Both statements are discussed on our Absentjustice Preface page AFP Evidence File No 13. Members of the current government were provided with copies of these witness statements, without redactions. Sadly, the information in these two witness statements, to date, has not been acted upon.
The Telstra ex-senior protective service officer’s witness statement discusses a then still senior detective sergeant of the then Major Fraud Group, Victoria Police. The ex-police officer’s witness statement also describes the anguish experienced by the senior detective sergeant while he was investigating alleged fraud within Telstra during the COT arbitrations and the fears he had after being subjected to intimidation. Consider this: if this feeling of being got at by the Telstra Corporation can reduce a fully trained senior police officer to the condition Telstra’s ex-senior protective service officer alleged, just think how this continued and unaddressed harassment, by Telstra officials, left the COT cases during and after their government-endorsed arbitrations. NONE of us was ever offered any counselling or apologised to by the government, who still owned Telstra when this harassment commenced in 1992 (see Australian Federal Police Investigation File No/1) and continued well past the Major Fraud Group investigations of 1998 and 2001.
Exhibits CAV-AS 814, 815 and 816, which are attached to AS-CAV 790 to 818, show perfectly clear that the Department of Justice in the State of Victoria has declined to even begin an investigation into the evidence I have, which shows how Arbitration-and Supreme Court-related documents that were sent by fax during the COT Arbitrations (but which were definitely not sent to Telstra) were, however, intercepted via Telstra’s network during the time that Telstra was the defendant in all of the arbitrations that were connected to those intercepted faxes.
After the Federal Government put the Major Fraud Group under political pressure to abandon the four COT claims of fraud against Telstra, I met two senior Victorian police officers who apologised for what they realised was truly an ordeal for me: not only my failed arbitration but also the failed Victoria Police investigation. I was provided with a small A4 storage-box, taped shut. They advised me my four larger boxes of evidence would be couriered to my designated location. I asked if this small package could be included, as I preferred not to carry it away. The look in the eyes of the police officer in charge was stern and direct, “NO, you take this box with you now,” I didn’t argue!
It turned out that this box contained some startling documents I had not seen before, documents that would shock most Senators today, but which clearly indicated that their predecessors had allowed only five of the twenty-one legitimate COT claimants to have access to discovery documents and had also organised compensation for those five, compensation that ran into the millions upon millions of dollars in hush money, and all of that was accomplished so that the Telstra Corporation could be privatized. Now, if I am wrong, and that is not the case, then why were the remaining sixteen COT claimants all denied access to any of the privileges that the five ‘litmus test cases’ had been granted, and why did a letter from the Senate Estimates Committee Chair advises the police that two In-camera Hansard records, dated 6 and 9 July 1998, must not be provided to anyone outside of the Major Fraud Group and, if someone did reveal them then that person risked being sentenced to jail? Interestingly, the 9 July 1998 Hansard clearly states that to only award compensation to the ‘litmus test cases’ that were being investigated by the Senate Committee Working Party, and not to the other sixteen claimants, would be an injustice?
It might be hard to believe but, back in August 2001, and again in December 2004, the Australian Government threatened, in writing, to have me charged with contempt of the Senate if I was to ever disclose these in-camera Hansard records, even though those documents could well have won our cases if the COT claimants had appealed against the arbitration process? Where is the justice in that? Being charged with contempt of the Senate can result in a two-year jail term and, of course, the Government has always known that but, if I had been in a position to safely go ahead and make these documents public, they would have been a huge help, probably resulting in me winning my appeal against Telstra for gross misconduct. So how can the Senate continue to hide this conduct and, in the process, destroy so many lives? How is this democratic?
To understand how and why this occurred, we need to go back to 1997, when the John Howard Coalition Government was in the throes of executing the first of its three steps towards the final privatisation of Telstra. Then, towards the middle of October 1998, the COT ‘litmus test’ cases were, eventually and slowly, beginning to receive some of the previously withheld documents they had legally requested. It then became apparent that the Howard Government was selling the Telstra Corporation, i.e. a government asset, which was in a much worse state than the Government Communications Regulator had claimed it was in (see Manipulating the Regulator and Cape Bridgewater Evidence File). After some 150,000 previously withheld documents were finally delivered to the ‘litmus test’ cases (see An injustice to the remaining 16 Australian citizens) the picture that began to emerge clearly identified exactly how bad the Telstra copper-wire network was, certainly in many rural locations. It then seemed that this was the real reason for the Government’s decision to stop the remaining sixteen COT claimants from receiving the same privileges as those awarded to the ‘litmus test’ cases, which eventually took more than two years to assess. Could the Government afford to have the truth of Telstra’s dilapidated network exposed just as they were about to privatise the corporation? I think not.
I am convinced that when the Major Fraud Group ‘inadvertently’ provided me with copies of these Hansard records, they believed that those records would be instrumental in eventually creating justice for the remaining sixteen COT Cases. Our webpage An injustice to the remaining 16 Australian citizens shows however that this was never the case.
The government may believe the FOI litmus test for only five of the 21 COT cases is a government matter, however, note how discriminative this process has been – giving free technical advice to some COT cases concerning their FOI requests while refusing/failing to assist the other 16 COT cases who also suffered at the hands of Telstra.
As part of the assistance I provided to the Major Fraud Group during their investigations there were two separate occasions where I needed to stay in Melbourne for two days and nights (i.e. four days in total) and it was during that time in particular that I had the pleasure of working with a number of different officers. I found all those officers to be helpful, cooperative and most professional in all their dealings with me. In fact, I discovered that I actually enjoyed the immense pressure I was under, as we worked together, analysing what we COT Cases had really been forced to endure in order to protect Telstra at all cost.
Fifth alternative remedy pursued 2001 and 2002
In mid-2001, I met with Peter Condliffe, Chief Executive Officer of The Institute of Arbitrators and Mediators Australia at 450 Lt Bourke St Melbourne 3000. On 12 January 2002, in response to a request from Mr Condliffe I provided his office with further documents to help the IAMA with their investigation into claims that Dr Gordon Hughes did not conduct my arbitration in a transparent manner and/or according to the ambit of the arbitration procedures.
I also provided Mr Condliffe with a copy of a letter dated 24 January 1994 from a Mr Frank Shelton. This letter to the arbitrator Dr Gordon Hughes was from the TIO Special Counsel, which provides further proof that the first four arbitrations were to be conducted according to the “ambit of the Commercial Arbitration Act 1984”. This particular representative from the TIO Special Counsel was, in fact, also the President of the Institute of Arbitrators Australia when he advised the arbitrator:
“We discussed whether or not the Procedure should come within the ambit of the Victorian Commercial Arbitration Act 1984. We decided that it should.”
On page two, he adds:
“On balance, it was decided that it would be preferable to have the Procedure operating under the ambit of the Commercial Arbitration Act.
You will note that I have amended the Procedure so that it is clear that you are conducting four separate arbitrations and will hand down four separate awards although you may combine some aspects of the four hearings.” See Arbitrator File No/105)
Mr Condliffe agreed that a complex arbitration between a government-owned corporation (as Telstra was then) with citizens of Australia would have had to have been conducted under the “ambit of the Commercial Arbitration Act”.
One of the many documents provided to Mr Condliffe dated 26 September 1997, after most of the arbitrations were concluded, was the statements made by the second appointed administrator to the COT arbitrations, John Pinnock, to a Senate Committee (see page 99 COMMONWEALTH OF AUSTRALIA – Parliament of Australia) that:
“In the process leading up to the development of the arbitration procedures—and I was not a party to that, but I know enough about it to be able to say this—the claimants were told clearly that documents were to be made available to them under the FOI Act.”
“Firstly, and perhaps most significantly, the arbitrator had no control over that process, because it was a process conducted entirely outside the ambit of the arbitration procedures.”
My question to Mr Condliffe was: why were the arbitrations not conducted under the agreed ambit of the arbitration procedures? How can arbitration be a just process when the arbitrator has no control over how it is conducted? When did Dr Hughes lose control over the arbitrations? Was it the first week, or two months or even nine months into the process? And, just as importantly, who authorised him to conduct the process entirely outside of the ambit of the arbitration procedures? Where are these hidden arbitration related Telstra documents that we COT Cases were told we would receive if we entered our government endorsed arbitrations? Why hasn’t the government acted upon this official advice given by John Pinnock?
I believed at the time, and I still do today, that it was this proof that confirmed that Dr Hughes had not conducted the arbitrations (which included mine) according to the agreed ambit of the arbitration procedures that prompted the IAMA to agree to investigate my claims.
On 30 January 2002, I received a letter from Mr Nosworthy, Senior Vice President of the IAMA, advising me that:
“It should be clearly understood that the Institute’s role is to take seriously complaints which are articulated against its member arbitrators. We will do so here.”
After I received this 30 January 2002 letter I provided Nosworthy with a copy of Dr Hughes letter dated 12 May 1995, to Warwick Smith (TIO) the day after Dr Hughes had deliberated on my arbitration claim which notes
“…the time frames set in the original Arbitration Agreement were, with the benefit of hindsight, optimistic;
“in particular; 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…
Most important is the question: why did Dr Hughes bring down his award on 11 May 1995 when he was aware of the agreement he was using was not a credible document to be using?
I was entitled to receive this well-concealed 12 May 1995 letter during my designated appeal period, but I did not receive a copy until 2002 (and outside the statute of limitation period). In this letter, Dr Hughes states:
“…as far as I could observe, both Telecom and Smith co-operated in the Smith arbitration…”
“…the time frames set in the original Arbitration Agreement were, with the benefit of hindsight, optimistic;
“in particular; 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…
“In summary, it is my view that if the process is to remain credible, it is necessary to contemplate a time frame for completion which is longer than presently contained in the Arbitration Agreement” (Open Letter File No 55-A)
The fax imprint across the top of this letter (Open Letter File No 55-A) is the same as the fax imprint described in the Scandrett & Associates report (see Open Letter File No/12, and File No/13), confirming faxes were intercepted during the COT arbitrations. The question the Telecommunication Industry Ombudsman and the Federal Attorney-General has still not answered is:
Was this letter actually faxed to my office by the ombudsman to assist me in any pending appeal process, and if not, why was such an important letter deliberately kept from me during my designated appeal period?
If I had received a copy of this letter declaring the agreement used in my arbitration process was not credible, then, of course, I would have appealed the arbitrator’s award. After all, how could an appeal judge argue against the arbitrator’s own findings that the agreement was not credible, even though he used it anyway?
Interception of this 12 May 1995 letter by a secondary fax machine:
Whoever had access to Telstra’s network, and therefore the TIO’s office service lines, knew – during the designated appeal time of my arbitration – that my arbitration was conducted using a set of rules (arbitration agreement) that the arbitrator declared not credible. There are three fax identification lines across the top of the second page of this 12 May 1995 letter:
- The third line down from the top of the page (i.e. the bottom line) shows that the document was first faxed from the arbitrator’s office, on 12-5-95, at 2:41 pm to the Melbourne office of the TIO – 61 3 277 8797;
- The middle line indicates that it was faxed on the same day, one hour later, at 15:40, from the TIO’s fax number, followed by the words “TIO LTD”.
- The top line, however, begins with the words “Fax from” followed by the correct fax number for the TIO’s office (visible
Consider the order of the timestamps. The top line is the second sending of the document at 14:50, nine minutes after the fax from the arbitrator’s office; therefore, between the TIO’s office receiving the first fax, which was sent at 2.41 pm (14:41), and sending it on at 15:40, to his home, the fax was also re-sent at 14:50. In other words, the document sent nine minutes after the letter reached the TIO office was intercepted.
“We canvassed examples, which we are advised are a representative group, of this phenomena [sic].
“They show that
- the header strip of various faxes is being altered
- the header strip of various faxes was changed or semi overwritten.
- In all cases the replacement header type is the same.
- The sending parties all have a common interest and that is COT.
- Some faxes have originated from organisations such as the Commonwealth Ombudsman office.
- The modified type face of the header could not have been generated by the large number of machines canvassed, making it foreign to any of the sending services.”
Four months after having received a copy of this 12 May 1995 letter and the following supporting exhibits (see Front Page Part One File No/1, File No/2-A to 2-E, File No/3, File No/4 and Front Page Part One File No/5, which show numerous documents faxed from my office to the arbitrator’s office did not reach their intended destination Mr Nosworthy wrote to me on 10 April 2002 and stated:
“I note that your most recent actions have involved making a complaint to the police, alleging fraud – at least on the part of Telstra – and I do not propose to conduct further enquiry in relation to the matter if you are pursuing police action.
I have returned your papers to Mr Condliffe, Chief Executive Officer of the Institute of Arbitrators and Mediators Australia. Will you kindly contact him to make arrangements to collect them.”
Since the police were investigating Telstra – and not Dr Hughes — I found Mr Nosworthy’s decision to stop his investigation into my complaints against Dr Hughes rather puzzling. As shown above, I have already explained the facts surrounding the involvement of the Victoria Police Major Fraud Group and that it was at their request I provide evidence in support of the other COT Cases claims against Telstra.
I say: “I found Mr Nosworthy’s decision to stop his investigation into my complaints against Dr Hughes rather puzzling”, because, when I personally met with Mr Condliffe at the IAMA office (450 Lt Bourke St Melbourne) in late 2001, I had just had a meeting with Mr Neil Jepson, barrister of the Major Fraud Group. I discussed my pending appointment with Mr Condliffe with Mr Jepson and asked if the police might see me discussing my arbitration issues with the IAMA as compromising the Major Fraud Group’s investigation into alleged fraud by Telstra against COT cases Graham Schorer, Ann Garms, Ross Plowman and Ralph Bova. Mr Jepson said I was free to discuss anything with the IAMA that I believed was of importance to my own arbitration case. Mr Jepson made a point of informing me that I should advise the IAMA that, although it had not yet been proven, it was my claims to the government that someone had tampered with Telstra-owned telephone equipment after it left my premises and that Telstra used known-false Bell Canada International Inc tests to support their arbitration defence of my claims that were of interest to the Major Fraud Group and the reason I had been called in as a witness to substantiate these claims, which I did, but this fact Mr Jepson said was not to be made known to the IAMA at this time, although senators Richard Alston, Ron Boswell, Chris Schacht and Len Harris had all been provided with conclusive evidence showing my claims were one hundred per cent correct. What shocked the Major Fraud Group (see Telstra’s Falsified BCI Report) was that so many Senators were made aware of this fraud and yet had done nothing to assist me in resolving the matter. Senators Schacht and Boswell requested Telstra prove my claims wrong – and Telstra could not do so. This upset numerous members of the Major Fraud Group. Of course, I did not reveal this at the time to the IAMA.
My involvement in the Major Fraud Group investigation can be further viewed by clicking onto An injustice to the remaining 16 Australian citizens
Sixth alternative remedy pursued 2001 and 2002
Following the Hon Senator Helen Coonan’s advice, I contacted Consumer As Affairs Victoria (CAV) through an advisor, who also assisted me in preparing a claim to be provided to a barrister for the CAV. From October 2007 through to late-2008, this un-named advisor, a once very high-ranking Victorian police officer, had a number of discussions with this barrister, who then proceeded to assess our various claims.
The barrister appeared overjoyed that I was able to provide evidence of faxes leaving the Sir Owen Dixon Chambers (the legal hub of Melbourne) being intercepted before they finally reached their intended destination. The barrister was also thrilled to hear that neither the TIO, nor Telstra, ever returned to me the evidence I provided confirming faxes left the Crown casino complex arrived at my Cape Bridgewater business, even though they were not intended for me. Five years after the CAV came into possession of this evidence, it was returned to me in a state of disarray that seemed to me to indicate it had been investigated. Like the IAMA however, the CAV never provided a finding.
Following the Hon Senator Helen Coonan’s advice, I contacted all of the government agencies nominated by the senator, including the TIO’s office, and all declined to investigate my claims.
It became evident there was no one in Australia prepared to tackle Telstra regarding its unethical conduct, prior to and during the COT arbitrations.
Since back in 2003, a well-respected, ex-senior-Victorian Police officer, a recipient of the Order of Australia, has been attempting to help me to find a resolution to my 1994 arbitration issues and, during 2007, still on behalf of me but at the request of the Government’s most senior barrister, this same ex-police officer convened a meeting, which included me, in a restaurant just walking distance from the offices of the Victorian Government Consumer Affairs Victoria (CAV). The barrister and this police officer were already known to each other professionally but the barrister had been prompted to request this particular meeting as a result of some preliminary COT Case evidence that he had received.
At that meeting, the barrister stated words to the effect that the CAV had been waiting and hoping – for years – to be able to collect exactly this type of evidence because it so clearly proved (see Australian Federal Police Investigations page and Open Letter File No/12, and File No/13, beyond all doubt, what they had suspected for years: that certain powers to be had access to privileged documents which had been faxed through Telstra’s network between the various parties during litigation processes. At the same time, the barrister also expressed serious concerns in relation to what he had already learned in relation to the way that, during my Arbitration process, Telstra had openly used falsified reports, had clearly authorised false witness statements and had been able to get away with making, and then actually carrying out, serious threats against claimants during a legal arbitration process that was being conducted in the State of Victoria.
After seeing just some of the COT evidence, and then being told that there was more, similar evidence that was still being collated, the barrister immediately noted that whatever could be provided to the CAV would definitely be investigated.
A short time later, in October 2007, the same ex-police officer personally hand-delivered, to Consumer Affairs Victoria, thirty-two separate, spiral-bound volumes of evidence and, within a couple of weeks, I was asked (again via the ex-police officer) to copy all thirty-two volumes of this evidence onto a CD (a job that actually took me a full two days to complete). I was told that this would help to speed up the then-ongoing CAV investigation.
More than two years later that CD was returned to me and, so far (i.e. in 2020), the Department of Justice in the State of Victoria has continued to refuse to release any findings based on that material. This has now led to all that material gradually being added to our website, absentjustice.com, so that the general public can decide for themselves whether I and Graham Schorer (COT spokesperson) were right to bring this evidence to the Victorian Government’s attention.
The barrister was also concerned that Telstra had used falsified reporting (see Telstra’s Falsified BCI Report, Telstra’s Falsified SVT Report and Tampering With Evidence) and made false witness statements (see Summary of events) as well as threatening claimants during arbitrations that were conducted in the state of Victoria (see Senate Evidence File No 31).
You can view some of the types of exhibits provided to the CAV during their two-year-plus investigation by clicking on CAV Part 1, CAV Part 2 and CAV Part 3, now collated on the absentjustice.com website, and form your own opinion as to whether the State of Victoria Department of Justice should have made a finding in 2007 regarding these very serious issues. While some of these numbered CAV exhibits are dated well past the period of that investigation and bear the CAV inscription, they were collated during 2011, when I introduced further evidence to the Department of Justice.
It is clear from exhibits AS-CAV 814, 815 and 816 (see AS-CAV 790 to 818) that the Victorian Department of Justice in 2011 would not investigate evidence of facsimiles that were intercepted in the State of Victoria during litigation/arbitration.
After being told more evidence was being collated, the barrister asked for all evidence to be provided for CAV to investigate. This ex-senior Victorian police officer personally submitted Alan’s 32 separate spiral-bound volumes of evidence to CAV. Within a couple of weeks, Alan was advised via this ex-senior Victorian police officer that CAV was investigating and requested all 32 separate volumes to be supplied on a CD (compact disc). More than two years after CAV said it was investigating this material, the evidence was returned and so far, in 2020, the State of Victoria Department of Justice has declined to make a finding on that material.
Seventh alternative remedy pursued 2008
In my 157-page Statement of Facts and Contentions dated 26 July 2008, which I provided to Mr Friedman and ACMA, I clearly defined how, for reasons unknown, AUSTEL, and later the ACA and ACMA, did not conduct themselves in a properly transparent manner. This behaviour included allowing Telstra to support their arbitration defence by using Cape Bridgewater test results that AUSTEL/ACA/ACMA all knew were false – long before they used them. It is also clear from the same Statement of Facts and Contentions that I highlighted Telstra’s use of the sanitised April 1994 AUSTEL Report instead of the later, and more adverse, AUSTEL findings (against Telstra) that eventually resulted from AUSTEL’s full investigation into my matters, and that I explained how this severely disadvantaged my March/April 2006 submission to the Department of Communications, Information Technology, and the Arts. The financial cost of preparing that 2006 submission came to more than $20,000, which was entirely a waste of money, as I did not receive a copy of AUSTEL’s Adverse Findings until November 2007. If I had received those findings before the DCITA government-assessment process, I would have been able to prove my claim.
When AUSTEL provided a copy of its Adverse Findings to Telstra, only, in March 1994, that not only provided Telstra with valuable assistance during their defence of my 1994/95 arbitration, it also provided assistance to Telstra in 2006, when the government could only assess my claims based on the sanitised AUSTEL report rather than AUSTEL’s Adverse Findings
As part of my oral presentation to the Administrative Appeals Tribunal on 3rd October 2008, I explained to the AAT senior member, Mr G D Friedman, and the respondents, ACMA that I planned to use the FOI documents (which were under review by AAT) in a report I am preparing. I also explained that the finished report would, I believed, be in the public interest and would be provided to both the past and present Governments for comment before it was released to the public. In my AAT Statement of Facts and Contentions, I show quite clearly (using numerous exhibits) that Dr Hughes did not conduct my arbitration transparently according to the Commercial Arbitration Act 1984. After reading this document and hearing my oral presentation Mr Freidman noted:
“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.
Eighth alternative remedy pursued 2001 and 2002
During June and July of 2009, I raised the issue of John Rundell (the Arbitration Project Manager) appointed to my arbitration and the arbitrator Dr Hughes’ involvement in the COT arbitrations with the Institute of Arbitrators and Mediators Australia (IAMA). I provided information on a CD, along with an abundance of documented evidence, to the IAMA. The CD includes some 1,460 copies of original exhibit documents. These documents are now at available to download from CAV Part 1, CAV Part 2 and CAV Part 3.
The Institute of Arbitrators & Mediators Australia (IAMA) replied to me after I had provided the office (on 2 July 2009) with fresh evidence confirming the arbitrator did not conduct my arbitration according to the agreed ambit of the Commercial Arbitration Act 1984. I also provided evidence showing the previous Arbitration Project Manager to my arbitration, appeared to also be the current treasurer of the Melbourne Chapter of the IAMA. I alerted the IAMA of this because if it was the same person then the IAMA should be aware of the fact that this person knowingly misled and deceived a proposed investigation into a number of my valid claims raised by me with the Telecommunications Industry Ombudsman. In his letter to me, the then president of the IAMA, The Hon Michael D Kirby AC, CMG advised:
“In accordance with established procedure, I have referred the complaint to the Ethics and Professional Affairs Committee of the Institute.
“In due course, you will be informed following this reference.” (See Burying The Evidence File 13-A)
Within two days of receiving this letter, I received a telephone call from the CEO of the IAMA who explained that the IAMA ethics and professional affairs committee would investigate these fresh allegations and would notify me of their findings. I advised the CEO that in 2002, the IAMA began investigating similar complaints concerning the same arbitrator, but returned my documents without bringing down a finding. The CEO confirmed this would not be the case now. I deduced, from the CEO’s tone, that he had read the damning evidence against the arbitrator that had prompted the president of the IAMA to send the above letter of 9 July 2009.
I personally provided 21 claim documents to the assistant of the IAMA CEO and stated in my letter:
“My letter to you on 16th July advised that the following documents would be hand-delivered to you. These reports are now attached for your information.” (Burying The Evidence File 13-B to 13-C)
30 July 2009: According to this letter, from Graham Schorer (COT spokesperson) to Paul Crowley, attached to a statutory declaration and a copy of a letter dated 4 August 1998 from Graham to me, Graham had a phone conversation with the arbitrator early in 1994 regarding lost COT faxes. During that conversation, the arbitrator explained, in some detail that
“Hunt & Hunt [The company’s] Australian Head Office of was located in Sydney and [the company] is a member of an international association of law firms. Due to overseas time zone differences, at close of business, [the company’s] Melbourne’s incoming facsimiles are night switched to automatically divert to Hunt & Hunt Sydney office where someone is always on duty. There are occasions on the opening of the Melbourne office, the person responsible for cancelling the night switching of incoming faxes from the Melbourne office to the Sydney Office, has failed to cancel the automatic diversion of incoming facsimiles.” Burying The Evidence File 13-H.
On 29 November 2009, I wrote to the CEO of the IAMA regarding fresh evidence received from the office of the lawyer who represented COT spokesperson Graham Schorer in his earlier Federal court action against Telstra between 1990 and 1992. This now-deceased lawyer replaced Graham’s initial lawyer, who was appointed as the arbitrator for the first four COT arbitrations, including both Mr Schorer’s and my arbitration. The arbitrator, therefore, assessed the same documents and complaints he had previously been privy to when he was acting as Mr Schorer’s legal counsel between 1990 and 1992. This constitutes a clear case of conflict of interest. This is the same arbitrator the IAMA investigated in 2009.
The crux of the matter, discussed in my letter to the IAMA ethics and professional affairs committee relates to the events of 12 May 1995, after the arbitrator wrote to the TIO warning him that the arbitration agreement he used throughout my arbitration was not a credible agreement and should, therefore, be revised for the remaining three claimants.
This vital letter from the arbitrator was yet another document the TIO and the arbitrator concealed from me during my appeal period. My letter explained that two of the other three COTs were allowed an extra 13 months longer to prepare their claims than I was allowed. The arbitrator who, don’t forget, had previously been Mr Schorer’s business and legal advisor for many years, allowed Mr Schorer a full 36 months longer to prove his case against Telstra than I was allowed.
It is clear from the five emails dated between 20 and 23 October 2009, from the IAMA Ethics and Professional Affairs Committee that they were certainly investigating my claims against Dr. Hughes (see Burying The Evidence File 13-E) It is also clear from the next email received from the IAMA dated 23 November 2009 (see Burying The Evidence File 13-D) that the IAMA Ethics and Professional Affairs Committee were still supplying claim material to their investigators.
After not hearing from the IAMA between 23 November 2009 to 17 February 2011, I wrote to the Hon Michael D Kirby AC CMG asking him to investigate why I had no proper advice as to how the IAMA was progressing with their investigations into my matters. It had cost close to $16,000.00 in secretarial and administerial fees to submit my claim to the IAMA. On the 21 February 2011 I received a letter from The Hon Mr Kirby stating:
“Thank you for your letter of 17 February 2011, just received.
When I wrote to you in July 2009, I served as President of the Institute of Arbitrators & Mediators Australia. In June 2010, I stepped down from this position. Mr Warren Fisher was elected in my place.
A possible explanation for your not hearing from Mr Paul Crowley is that, not long after my retirement as President, he resigned and Chief Officer of IAMA.
I will send your letter and the attachments to Mr Fischer and request that he respond to your enquiry“ (see Burying The Evidence File 13-F)
On the 21 March 2011, I receive a letter from Mr. Warrwn Fischer President of the IAMA noting:
“I confirm receipt of your correspondence dated 22 February 2011 (forwarded to me by the Hon Michael Kirby AC CMG under cover dated 28 February 2011; 6 March 2011; and 9 March 2011.
I advise that I have passed all of that correspondence to our Ethics and Professional Affairs Committee for reply to you.” (Burying The Evidence File 13-G)
All Australian citizens [in the public interest] have a duty of care to expose unlawful conduct by government public servants, especially if that conduct may be detrimental to the welfare and natural justice of other Australians. I have spent many years trying to expose the fiasco I found myself caught up in, because I believe the law should be observed at all costs. Without a functioning democratic society, we no longer have the freedoms we currently take for granted. These freedoms are what so many young Australians have gone to war to preserve. The laws should preserve and protect all Australians: not just those politicians and corporate lawyers who choose to manipulate the system for their own benefit – and often to the detriment of other Australians – as this story demonstrates.
I again remind the reader the IAMA still refuses to bring down a finding on the material they asked me to provide them between July and October 2009. The IAMA is also refusing to supply back to me copies of that material provided, which cost in excess of $16,000 to produce
The following information in point format and the Exhibits 1 to 72 supporting these points have already been provided to the IAMA. The information discussed below was on of 26 submissions sent by me to the IAMA Ethics and Professional Affairs Committee at the direction of Paul Crowley, CEO of the IAMA in 2009, or under direction of the Melbourne Chapter of the IAMA.
Attention Mr Paul Crowley
- On 22nd March 1994, a meeting was attended by Steve Black (Telstra), David Krasnostein (Telstra’s General Counsel), Simon Chalmers (Freehills), Peter Bartlett (Special Counsel, Dr Hughes (arbitrator), Warwick Smith (TIO) and the TIO’s secretary, Jenny Henright. The meeting discussed the alterations to the Fast Track Arbitration Procedure (Agreement) without any COT claimants or their representatives having been advised of the meeting and therefore they had no say in regards to what clauses would remain in the agreement and/or would be altered. Telstra’s transcript of this meeting is quite clear that the TIO noted that, if clause 10.2.2 of the agreement was changed in any way whereby the agreement did not meet the original clause 2(f) of the previous signed Fast Track Settlement Proposal (FTSP) commercial assessment proposal, then he would not endorse the Fast Track Settlement Procedure (FTAP) as being fair. The wording “each of the Claimants claims” was secretly removed from clause 10.2.2 of the FTAP in a similar fashion as the removal of clauses 24, 25 and 26 in the Agreement. At point 6 of this transcript under the heading Exclusion of Liability for Arbitrator’s Advisors it is noted:
“Mr Bartlett stated that he was unhappy that Telecom did not appear prepared to allow his firm an exclusion from liability.
Dr Hughes stated that the resource unit was also not satisfied with a capped liability, but that he did not have a position in relation to this matter as it did not affect him or the performance of his functions”.
Mr Smith (Warwick Smith) stated that he thought it was reasonable for the advisors 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 said that he thought the liability caps proposed by Telecom in the amended rules were already reasonable.
It was agreed that Mr Bartlett would produce a re-drafted set of rules which Mr Smith and Mr Bartlett would agree was fair.”
- On 31st March 1994 Graham Schorer received the re-drafted set of rules from Dr Hughes office showing clauses 24, had no liability cap for Special Counsel (Minter Ellison) and clauses 25 and 26 for Ferrier Hodgeson and DMR with a liability cap of $250,000. 00;
- On 12th April 1994, COT case Ann Garms, the third claimant received from Peter Bartlett the final agreement a mirrored copy of the agreement provided to Graham Schorer.
- On 21st June 2009, The Hon Alan Goldberg AO, Federal Court Judge, was provide eight exhibits confirming that the FTAP agreement faxed from Dr Hughes office on 19th April 1994 on behalf of the COT claimants (for legal advice) was the same agreement provided to Graham Schorer 31st March 1994, Ann Garms 12th April 1994 and the agreement executed by the fourth claimant Maureen Gillan on 8th April 1994.
This meeting on 22nd March 1994: was no different to a judge meeting in his chambers with the defence team, but without the presence of the plaintiff in the matter, and planning how the judge will conduct the trial. The fact that the COT four claimants were unaware that a meeting had been convened to discuss changes to the agreement did not place them in a position to check what agreement they were signing on 21st April 1994. After all, who would expect an Arbitrator and/or the Special Counsel would secretly alter an agreement after the claimants had sought legal advice to sign the unchanged agreement?
In a letter dated 12th May 1995, the day after the arbitrator had deliberated on the first of the COT claims (me), the arbitrator even wrote to the TIO, warning that the Arbitration Agreement (rules) that had been used for that first claim (mine)
“… did not allow sufficient time …for inevitable delays associated with the production of documents, obtaining further particulars and the preparation of technical reports.” This letter also noted that it was the arbitrator’s view that
“… if the process is to remain credible, it is necessary to contemplate a time frame for completion which is longer than presently contained in the Arbitration agreement” and “There are some other procedural difficulties which revealed themselves during the Smith arbitration and which I would like to discuss with you when I return”
The arbitrator was, at the time, about to travel overseas for two weeks). Although this letter was written in 1995, it was not provided to me until 2002 – seven years after my arbitration – even though I had been complaining to the Institute of Arbitrators Australia and the TIO’s office (administrator of the arbitrations) since June 1995.
It should be a matter of concern to the IAMA that the arbitrator was allowed to ignore vital evidence, submitted by a claimant, proving that the claimant was still experiencing numerous problems with his telephone and fax lines. Ignoring this evidence meant that those problems not only continued to affect the claimant but also continued to affect many other Australian citizens for years after the claimant’s arbitration.
It should be a matter of concern to the IAMA that, on 15th November 1995 Mr John Rundell of Ferrier Hodgson Corporate Advisory (FHCA), the TIO-appointed arbitration technical consultants, told Mr Pinnock, the TIO, that FHCA had NOT addressed any of my billing claim documents during my arbitration.
PLEASE NOTE: regardless of the above evidence provided to the IAMA they have still not brought down their findings as well as having refused to provide back to me my 23 bound submissions and exhibits which support my claims.
Ninth alternative remedy pursued 2011
Transcripts from my second Administrative Appeal Tribunal (AAT) hearing of 26 May 2011, respondents Australia Communications Media Authority/ACMA (No 2010/4634), show I maintained my Freedom of Information applications to ACMA should be provided free of charge, in the public interest, including all of the requested information both Telstra and AUSTEL withheld during my government-endorsed arbitration process. Senior AAT member Mr G D Friedman considered this AAT hearing and stated:
“Mr Smith still believes that there are many unanswered questions by the regulatory authorities or by Telstra that he wishes to pursue and he believes these documents will show that his unhappiness with the way he has been treated personally also will flow to other areas such as it will expose the practices by Telstra and regulatory bodies which affects not only him but other people throughout Australia.
“Mr Smith said today that he had concerns about the equipment used in cabling done at Cape Bridgewater back in the 1990s. He said that it should – the equipment or some of the equipment should have a life of up to 40 years but, in fact, because of the terrain and the wet surfaces and other things down there the wrong equipment was used.”
During this second AAT hearing in May 2011, I again raised the telephone problems that had affected my business from before my arbitration, stressing that the arbitrator had failed to investigate or address most of those problems, and therefore allowed them to continue for a further 11 years after the end of the arbitration. Since the AAT hearings, and as a result of Australia’s National Broadband Network (NBN) rollout, which began in mid-2011 and is still continuing today, numerous faults, just like those that I raised during my arbitration and both AAT hearings, have been found to be correct; this can be confirmed by a simple internet search for “Australia NBN”.
The ninth remedy in our Other alternative remedies pursued link shows transcripts from both the 2008 and 2011 AAT hearings, which reveal that I raised that Dr Hughes (the arbitrator hearing my 1994/95 arbitration) failed to investigate why my business was still experiencing ongoing telephone problems and faults during my arbitration and that Mr Pinnock (TIO) would not transparently investigate my complaints of the arbitration not addressing these ongoing faults. Because of this neglect, I was literally forced to sell my business, in December 2001, for land value only. My client base had dwindled because no one was able to reliably contact my business via the telephone: some days the phones worked, and others they did not. The TIO and Telstra were both refusing to investigate why this was happening. Was the real reason not to investigate my complaints to avoid proving that the arbitration failed me?
By August 2002, Darren Lewis was himself writing to his local Federal Member David Hawker MP about the ongoing telephone and fax problems he had inherited.
It is interesting to note the comment made on page 2 of Darren Lewis’ statutory declaration dated 4th September 2004, provided to the Hon David Hawker, (then-Speaker In the House of Representatives) in which he notes at point 19:
“Telstra informed us we had what is commonly known in technical words as (a line in lock-up rendering our business phone useless until the fault is fixed.
The technicians then in hook up consultation with outside office guru’s did a fault graph reading on our 55 267267 line with the outcome that their office technical staff stated words to the affect that the reading was impossible (couldn’t be correct). It was then the local technician became quite annoyed when the technical guru insinuated that the equipment the local tech was using must be faulty. The local tech then informed the technical guru that there was nothing wrong with the equipment at all.
It was then that the local technician informed me that as strange as it might seem he believed that because our business was on optical fibre and was so close to the Beach Kiosk (junction box) this could very well be part of the problem. Apparently either under powering over powering was also an issue. He realised that after testing all the other optical fibre outlets with his testing equipment and still reached this impossible reading (according to the technical guru) he would move us off of the fibre.”
It was on this note that the technician informed me that although it was a back ward step he was going to investigate the possibility of moving the business off the optical fibre and back to the ‘old copper wiring”.
Tenth alternative remedy pursued 2010
On 12 September 2010, I provided the ACCC with the following report (see ACCC investigation addressed to:
Mr Graeme Samuel, AO
This document has been prepared by Alan Smith, one of the inaugural members of a group originally called The Casualties of Telecom (now The Casualties of Telstra or COT). For the past sixteen or so years, Alan has been ridiculed by a number of Government agencies, and his claims labelled vexatious and frivolous because those agencies had vested interests in hiding the truth from public scrutiny. That all began to change, however, on 3rd October 2008 when Mr G Freidman, who was hearing Alan’s Administrative Appeals Tribunal claims, noted:
“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”.
Eleventh alternative remedy pursued 2010
Between July 1995 and May 2011, I provided the Telecommunication Industry Ombudsman’s office with the information now contained in our Telecommunication Industry Ombudsman page.
It should be noted that the various government agencies named above have all made a written comment back to me that I should also take my complaints back to the TIO office regardless of ‘…the law does not permit a party to an allegation to investigate itself’.
The findings of the Justice Fitzgerald the Justice Woods Royal Commission investigations into police corruption in Queensland and New South Wales, and the findings of various other investigations into government agencies over the years, have all stated that no organisation that has had claims made against it can legally investigate itself. More than half of the complaints Alan Smith raised with the TIO are either against one of the TIO officials involved in the COT arbitrations or the TIO-appointed Resource Unit and, although I have since taken those complaints on to the State Ombudsman, the Australian Competition and Consumer Commission (ACCC), the Australian Communications and Media Authority (ACMA) and various Government Ministers, they all have the same ‘advice’ – they all tell me I should take my matters back to the TIO, even though those government-funded organisations must all know that the TIO’s office cannot investigate itself. It seems therefore that ‘justice the Australian way’ involves running ordinary Australian claimants around and around in circles in the hope that they will become so exhausted and probably financial ruined that they will give up their fight, and this is exactly what has been done to Alan Smith for these past twenty years, while those who have acted inappropriately towards Mr Smith and various other COTs, those that have instigated the roundabout, those who have caused the Australian justice system to fail, have their inappropriate conduct buried, safely out of sight, even though it is perfectly clear from the most recent findings in the Queensland Heiner Affair (the concealment of documents needed in litigation i.e. ‘…the law does not permit a party to an allegation to investigate itself’.