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Chapter Three - The third remedy pursued

Absent Justice - Austel+39s Adverse Findings

1995-1996

PLEASE  NOTE: As some of the material in Chapter Two is also important to the two investigations of 1995 and 1996 discussed below we have deliberately used them again for clarity.  

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. The Institute of Arbitrators Australia began their investigation in January 1996.

on 20 September 1995, Senator Richard Alston was the then Shadow Minister for Communications when The Hon Senator Ron Boswell (National Party) made the following speech in the Senate concerning the four original COT Cases Ann Garms, Maureen Gillan, Graham Schorer and me:

Between September and November 1995, both the office of the Hon Senator Richard Alston and the Institute of Arbitrators Australia (IAA) agreed to separately 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 on 22 December 1995 (see also Chapter Two).  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. School children 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 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 Ericsson 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.

I also advised the Senator at this meeting 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.

I reminded the Senator that two years previous to this visit in Canberra we had also visited his St Kilda Road Melbourne office with the COT Cases, in the company of Senator Ron Boswell he and Senator Boswell viewed our evidence against Telstra’s defective phone service to our businesses. Within a few months of this meeting, we provided both Senators with a copy of the original 1993 AUSTEL government-facilitated settlement agreement dated 5 October 1993, which clearly stated the assessor appointed to value the four COT cases’ business losses would visit similar type of businesses and value the revenue earnt by those businesses who had reliable phone service so the assessor could reach a fair assessment of the losses for each of the four COT cases businesses (see point 17 on page 4 Exhibit GS 110 file GS-CAV 89 to 154-A) By 23 November 1993, the government had agreed to commercial assess our claims if we stopped our campaign against Telstra.

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, 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 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 the Government’.   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.

PLEASE NOTE: this is the same John Rundell who allowed David Reid (Lane Telecommunications) to assess my claim and then superimposed the DMR Inc Canada logo on the final arbitration technical report that Lane had provided the findings and NOT DMR (Canada). This was not made known even after Lane was purchased by Ericsson. The collusion and trickery continued to destroy any chance I had of a fair administered arbitration.

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 above, 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 the Introduction above 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 2021.

In a letter I received from Mr Paul Fletcher dated 4 September 1996 noting:

“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 (see following link > Open Letter File No/41/Part-One and File No/41 Part-Two).

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 raised these DCITA decisions in this Second Investigation segment because, since Senator Alston requested my report in the presence of David Hawker, surely they would then both be informed of the outcome of Paul Fletcher’s investigations into that report. I know for a fact that Mr Hawker did not receive any information about my report because he told me, on two separate occasions, that he had not received any follow-up information at all, which further indicates that Senator Alston was never advised of the significance of that report either.

Perhaps the real reason for my claims never being assessed on merit was because, in March 1996, the TIO, Warwick Smith (the administrator to my arbitration) became a Front Bench Minister in the John Howard Government. In simple terms, it became clear that no matter what proof I provided to Paul Fletcher while he was assisting Senator Richard Alston, during the same Howard Government (including the evidence contained in Open Letter File No/41/Part-One and File No/41 Part-Two), the establishment had decided the COT Cases had to be stopped, at all cost, from exposing exactly how unethical the process had been. Regardless of the damage, this cover-up caused to the claimants.

It is most important to note also during Senator Richard Alston’s investigation 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 Mediators Australia (IAMA) 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 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:

  • contrary to Mr Smith’s assertion on page 3, his 24,000 (sic) documents were all viewed by me, Ferrier Hodgson Corporate Advisory, DMR Group Inc (Canada) and Lane Telecommunications Pty Ltd in accordance with the arbitration procedure.”(See Open letter File No/45-G and Open Letter File No/49)

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 too 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 5:00 pm 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 2.00 am) 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 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? 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.

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

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

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

ABSENT JUSTICE HAS IT ALL.

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

Senator Carr

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

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

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

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

Cathy Lindsey

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

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

Hon David Hawker MP

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

Sister Burke

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

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

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

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

Cathy Lindsey

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

The Hon David Hawker MP

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

– Edmund Burke