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Chapter Six - Clandestine meeting

Absent Justice - Clandestine meeting

Ex parte is a Latin phrase meaning on one side only or by or for one party. An ex parte communication occurs when a party to a case, or involved with a party, talks, writes or otherwise communicates directly with the judge about issues in the case without the other parties’ knowledge. Under the Judicial Code of Conduct, judges may not permit or consider ex-parte communications in deciding a case unless expressly allowed by law. This helps judges decide cases fairly since their decisions are based only on the evidence and arguments presented to the court, and the applicable law. It also preserves trust in the legal and court system.

Points 4 and 5

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

In attendance at this clandestine meeting were Telstra’s arbitration liaison officer, Steve Black; Telstra’s general counsel, David Krasnostein; Telstra’s lawyer from Freehill Hollingdale & Page, Simon Chalmers; TIO special counsel, Peter Bartlett; arbitrator, Gordon Hughes; and TIO Warwick Smith with his secretary Jenny Henright. Except Jenny Henright, all were lawyers and therefore all knew this was an illegal gathering. What was so important about this meeting that only the arbitrator and defence attended it?

The missing discussion material or questions raised at points 4 and 5 may well be why the parties present agreed to Telstra lawyers drafting the agreement, instead of the independent arbitration agreement the government and claimants were assured would be used. It could also be where Telstra and arbitrator Dr Hughes agreed Telstra would allow the arbitration resource unit first access to all arbitration procedural material (see Arbitrator Part Two Chapter Seven). This allowed the arbitration resource unit to decide which documents Dr Hughes and the claimants would be allowed to see, and which would be discarded. Telstra’s Steve Black wrote to Warwick Smith on 11 July 1994 acknowledging the resource unit would be allowed to vet which documents Dr Hughes would see and which he would not (see Prologue Evidence File No 7). The arbitration resource unit, Ferrier Hodgson Corporate Advisory, admitted, in writing, to Dr Hughes that they concealed at least four relevant billing claim documents from the arbitration process (see Open letter File No/45-H). This is discussed more fully below.

Points 4 and 5 in the minutes of this clandestine meeting could be linked to the arbitrator and his arbitration resource unit allowing for the more adverse findings against Telstra to be covertly addressed outside the legal arena of the COT arbitration process. If the addressing of non-addressed arbitration issues had nothing to do with points 4 and 5, then what was so detrimental to the arbitration process that these points were excluded from these minutes? What information was exposed in those two points that Telstra’s lawyers thought it necessary to hide, in case this document, Open letter File No 54-Aever surfaced, as it has?

Why weren’t the COT cases or their lawyers advised of this meeting? We will never know what was concealed from the COT cases during this clandestine gathering. Dr Gordon Hughes should have never allowed this secret meeting to take place without the COT cases being represented. Most, if not all, Western democracies would expect both the defendants and claimants – and their lawyers – to be present in the judge’s chambers or arbitrator’s office.

This clandestine meeting also covered how to protect – to exonerate – the arbitrator’s consultants from incurring any liability for negligence or being sued. Of course, this was to the detriment to the COTs and our legal right to a have recourse over the arbitration consultants if the resource unit was negligent in their duties. The arbitration resource unit was negligent during my own arbitration process and I was unable to hold them to account for those actions, due to those clauses being removed from my arbitration agreement.

This very important exhibit Open letter File No 54-A details a meeting attended by Telstra’s general counsel, the TIO Special Counsel, the arbitrator, the TIO and the TIO secretary. The meeting discussed various changes to the arbitration agreement although no COT claimants or their representatives were advised of this important meeting and/or proposed changes to the agreement. Telstra’s transcript of this meeting (see Open letter File No 54-A notes at point six that:

“Peter Bartlet [TIO Special Counsel], stated that he was unhappy that Telecom did not appear prepared to allow his firm an exclusion from liability.”

“Warwick Smith [TIO], stated that he thought it was reasonable for the advisers to incur some liability, and that the only matter left to be negotiated on this issue was the quantum of the liability caps.”

“Steve Black [Telstra] said that he thought the liability caps proposed by Telecom in the amended rules were already reasonable.”

The TIO has, to date, declined to explain what circumstances occurred to change this. Who pressured the TIO to allow the advisors (see below) to be exonerated from all liability in relation to my arbitration? Why would the TIO Special Counsel be so “unhappy that Telecom did not appear prepared to allow his firm and exclusion from liability”.

It is therefore quite clear that the arbitrator’s main concern was always with the welfare of Ferrier Hodgson and DMR (the arbitration resource unit) rather than with the claimants, who had, by then, been battling Telstra for years. I did not see this letter until 2002, which was well outside the Statute of Limitations, when it was finally sent to me, along with other arbitration material I had continued to ask the TIO and Telstra to send to me so I could properly appeal Dr Hughes’ award.

Telstra’s FOI folio number A59256/7 (see Open letter File No 54-B) which is recorded on this letter dated 12 April 1994, from Dr Hughes to the TIO’s special counsel, indicates that Telstra received their copy of that letter either before or during the arbitration process and that simply shows, once again, that even before we signed the agreement the arbitrator and Telstra (the defence) had already set up a system that would allow them to work together to achieve their aims, right throughout the arbitration process, regardless of how that would affect the claimants’ cases.  This letter clearly discusses the same exoneration issues that Dr Hughes and the TIO’s Special Counsel tried to have included in the arbitration agreement during the 22 March 1994 clandestine arbitration meeting that is discussed above (see Open letter File No 54)

Open letter File No 54-A to 54-B, which is further discussed below, also shows that, even before Dr Hughes’ involvement in the deliberate deception that is discussed in his 12 April 1994 letter, he was already colluding with the defendants (Telstra) and the TIO so that he could use Telstra’s version of the arbitration agreement instead of an independently drafted version. This is further proof of the ongoing, deceitful collusion that existed between Telstra, the TIO, and the Arbitrator, and a clear indication that this collusion began well before the arbitration agreement was executed. So why are Dr Hughes, Telstra. and the TIO continuing to tell the current government that the confidentiality clause in the agreement forbids discussion about our arbitrations when all this deceit and collusion clearly began well before we signed the agreement and therefore well before the confidentiality clause came into play at all?

It is clear from the first two lines of Dr Hughes’ last statement on page-two in this that he knew the arbitration agreement as it stood was the agreement that had been finally agreed to as his statement shows  (see Open letter File No 54-B) which notes: “…I appreciate that one claimant has already executed the agreement in its current form. The others will no doubt be pressed to do likewise over the next few days”.  Maureen Gillan was the claimant referred to as having already ‘executed the agreement in its current form’. Maureen had signed the agreement four days previous, on 8 April 1994. Why was it so important to remove the $250,000.00 liability caps from the Arbitration Agreement in my case, and those of Ann Garms and Graham Schorer? Why was this such a big deal when the $250,000.00 liability caps were going to be replaced on the new Arbitration Agreement for the other twelve COT Cases as Chapter Seven below shows?

Why did it not occur to either the TIO or the Arbitrator that, once the directions regarding liability were removed; this would allow complacency to creep into the arbitration process? This is exactly what our absentjustice.com pages show did happen.

Removal of Liability Clauses

Absent Justice - Removal of Liability Clauses

Part of the story begins with the first (unaltered) version of the agreement, which had already been signed by one COT member, Maureen Gillan, a couple of weeks earlier, on 8 April 1994.

On 19 April 1994, a date confirmed by the fax footprint, two copies of the original version were faxed from the arbitrator’s office to two separate lawyers. In the agreement presented for the COT claimants to sign two days later, on 21 April 1994, clauses 25 and 26 had been removed and clause 24 had been amended with the $250,000 liability caps removed. This exempted the two resource units from all liability. There are some interesting details related to what happened the day that the three remaining claimants signed what we later learned was a secretly altered agreement.

This is a three-page brief to Mr A H Goldberg, Q.C., from William Hunt, on behalf of Graham Schorer. According to a hand-written note in the top right-hand corner, Mr Goldberg’s office was contacted by Hunt Solicitors at 2.43 pm

It is clear from the fax imprint on these two documents from Dr Hughes’ secretary, Caroline Friend, to Mr Goldberg and William Hunt, that they were faxed between 1:20 and 2:00 pm on 19th April 1994.  Each fax included an unsigned copy of the Arbitration Agreement (Graham Schorer).  Ms Friend sent the faxes from her office after Graham Schorer asked his solicitor, William Hunt, for advice in relation to signing the Arbitration Agreement that was drawn up by Frank Shelton of Minter Ellison  (see Open letter File No 54-C) Mr Hunt contacted Dr Hughes’ office and asked Ms Friend to send one copy to Mr Goldberg and one to Mr Hunt, for assessment.  On 21st April, however, before Graham received any information from Mr Goldberg or Mr Hunt, Graham and Alan met Peter Bartlett (the TIO’s Legal Counsel) in the Minter Ellison offices.  Mr Bartlett informed them the TIO would withdraw from administering the already-signed Fast Track Settlement Proposal if Graham and Alan did not sign the Arbitration Agreement by close of business that day.  Had Peter Bartlett provided Graham and Alan with a copy of the altered agreement earlier in the day, and allowed them to take it away for discussion, a comparison between the altered version and the version faxed to Mr Goldberg and Mr Hunt would have uncovered the secret alterations to the agreement Graham and Alan were being pressured to sign.  This was not the agreement that Caroline Friend faxed to Mr Goldberg and Mr Hunt 36 hours earlier.

We now understand our signatures on this agreement almost sealed our fate, mainly because the clauses had been altered, effectively exonerating both the resource unit and the TIO-appointed Special Counsel from any liability or omission associated with their involvement in the arbitration process. This was to prevent us suing them, if things went badly wrong.

I had been medically diagnosed with severe anxiety and was seeing a local psychologist. Everyone at that meeting, including my claim advisor Barry O’Sullivan, was aware of my diagnosis. I wasn’t the only one who was worried about signing that day; although Ann Garms and Graham Schorer, the other two claimants, agreed that we should sign the agreement, they also expressed reluctance because of the lack of time we had been given to review the document before signing it.

As a point of interest, in May 1994, when Senator O’Sullivan’s partner was helping me with my claim, he warned me that he believed I was under some sort of surveillance, which is something I already suspected. My psychologist had told me she was visited by someone who claimed to know to me and began asking questions about my mental state. I am most grateful to that psychologist, Kaye —– because she made it perfectly clear that the only way anyone could obtain that information was in my presence. Senators Richard Alston and Jocelyn Newman, and a number of other senators, are aware I was not the only COT member suffering from anxiety as a direct result of what we were being put through.

What is perhaps the most disturbing point about the alterations to the agreement (aside from the fact that they appear to have been made without the TIO’s authorisation) is the liability caps that were removed from the 21 April 1994 version, were replaced two months later, on 22 June 1994, for the next version of the agreement. This agreement would also be administered by the TIO, for all remaining 12 COT claimants, and for other similar agreements in future TIO-administered arbitrations. This confirms one very important matter: the TIO’s office was fully aware that it was undemocratic to have allowed the three COT arbitrations to be conducted without a proper safeguard for the claimants.

The Removal of the liability clauses  

The three clauses on page 12 of the version of the agreement that was received from Dr Hughes’ secretary on 19 April 1994, which is also the version of the agreement that the first of the four claimants, Maureen Gillan signed on 8 April 1994. It is clear the clauses in this agreement did NOT exonerate either the TIO Special Counsel or the two Resource Units Ferrier Hodgson and DMR Group Australia Pty Ltd which Warwick Smith clearly stated on 22 March 1994: (see Open letter File No 54-A)

 “…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”.

[Clause 24]  ...Neither the Administrator nor the Arbitrator shall be liable to any party for any act or omission in connection with any arbitration conducted under these Rules save that the Arbitrator (but not the Administrator) shall be liable for any conscious or deliberate wrongdoing on the Arbitrator’s own part”.

[Clause 25]  …The liability of Ferrier Hodgson and the partners and employees of Ferrier Hodgson for any act or omission in connection with any arbitration conducted under these rules (other than in relation to a breach of their confidentiality obligations) shall be limited to $250,000 jointly.

[Clause 26] …The liability of DMR Group Australia Pty Ltd and the directors and employees of DMR Group Australia Pty Ltd for any act or omission in connection with any arbitration conducted under these rules, other than in relation to a breach of their confidentiality obligations) shall be limited to $250,000 jointly (see Open letter File No 54-C)

In the agreement that was presented to the COT claimants to sign, clauses 25 and 26 had been removed and Clause 24 had been amended (see Open letter File No 54-D) The final version of Clause 24 reads (in part):

“Neither the Administrator, the Arbitrator, the Special Counsel, a partner or employee of the legal firm of which the Special Counsel is a partner, a member of the Resources Unit, Ferrier Hodgson or a partner or employee of Ferrier Hodgson, DMR Group Australia Pty. Ltd. shall be liable to any party”.

This resulted in Clause 24 having quite a different meaning to that presented by the original three separate clauses (24, 25 and 26). It protected Peter Bartlett, Minter Ellison and the two Resource Units from any risk of being sued for misconduct associated with their role as advisors to the process, thereby providing no incentive for them to ensure that the COT claimants were involved in a fair and just process.

According to numerous records  now displayed on this website absentjustice.com, I and the other two claimants present that day, i.e. Ann Garms and Graham Schorer, although apparently reluctant to sign the altered agreement, we did, and in doing so, those altered clauses effectively exonerated both Resource Unit’s and the TIO-appointed Special Counsel from any liability or omission associated with their involvement in the arbitration process.

A strange but welcome phone call

Towards the end of March 1994, I got an extraordinary phone call. Frank Blount, Telstra’s CEO, their top man, rang me. He wanted to know what I thought was the underlying cause of my telephone problems. Presumably, he had taken it upon himself to find the cause of my complaints. He showed understanding, respect and courtesy. I told him I believed that both Portland and Cape Bridgewater exchanges had been suffering from congestion for years. He gave me his word that he would investigate my theory, and it turned out he was a man of his word. An internal Telstra email dated 6 April 1994 shows the result of his influence:

Absent Justice - Welcomed Call

“Following previous lost call analysis of the Z route between Warrnambool node and Portland AXE–R (PORX) it was decided to increment this route from 30 to 60 CCTS … Could you please ‘fast track’ this project due to the sensitivity of the current COT case at Cape Bridgewater (off PORX)”. AS-CAV Exhibits 589 to 647

Another, dated 7 April 1994, followed with:

“At 4.55 pm on 6/4/94 I was informed by Network Ops that the route into the Portland exchange would be increased by 30%. The work was to be completed prior to midnight that day. This should alleviate any problems Mr Smith or anyone else in the area has been experiencing with congestion into the area for some time”. (See AS-CAV Exhibits 589 to 647)

In fact, an extra 30 circuits (from 30 to 60 CCTS) represented a 100% increase in the phone route into Portland exchange, not 30%. Regardless, the increase in lines was appreciated. I also remember discussing with Telstra’s CEO an internal Telstra document dated 17 June 1993 from the general manager of the commercial division to one of her staff noting:

“I refer to our telephone conversations regarding the material contained in [Telstra employee, name withheld]’ brief case.

“Please find attached a letter from Austel requesting information regarding that incident. Whilst I can respond to the details regarding the information provided to him at the time of settlement I cannot comment on the variation between what Mr Smith was told and the contents of the Network investigation files.” (See Arbitrator File No/111)

This document suggests the author was not sure whether she had provided me with the truth or not when she had conducted my earlier 11 December 1992 settlement. We know that when AUSTEL asked Telstra to supply a copy of ALL of the briefcase material left at my premises, it appears as though Telstra concealed sensitive material from the government regulator.(See Arbitrator File No 61 and Arbitrator File No 62)

In March 1994, Graham Schorer (COT spokesperson) and another COT member suffered break-ins and lost business-related documents. That made us all much more vigilant. I found no evidence of a break-in, but I did notice two diaries covering the period 1987 to 1989 were missing. I decided to remove my official business diaries from my office, and from that time on, I transferred information to them on a weekly basis from my wall calendar and unofficial notebooks. (See also Hacking – Julian Assange File No/3. The following statements are taken from Graham Schorer’s Statutory Declaration re his break-in.

Absent Justice - Break In

“In early February 1994, our premises were broken into and all computer cables including the power cables were severed, as well as all power connections to the main server which was in a specially constructed room. The perpetrators forced entry into the building in what the police described as a “ram raid”, where something similar to pneumatic tyre attached to the front of a vehicle was used to hit the front door with enough force to dislodge the steel frame attached to the brick work.

Part of the microfiche copier and viewer was stolen, as well as the PC on my desk which contained all of my COT information and correspondence between regulators, politicians, etc. Also stolen was a book that contained a catalogue of computer file numbers against their description.

The same day I spoke to Garry Dawson from Dawson Weed and Pest Control (another COT Case) on the phone, who told me that his business premises in Sunshine had been broken into just after midnight and burgled. The only thing stolen was the Dictaphone tape which held a recording he had made of a meeting between him and two Telstra executives on the previous day”. (Arbitrator File No/84)

Two months after the above break-in, my arbitration claim advisor Garry Ellicott (ex-national crime investigator and ex-detective sergeant of the Queensland police) visited and we spent five nights trying to decipher the pile of Telstra discovery documents. It was then that I discovered further losses: exercise books in which I kept official booking records and a number of bank statements and my bank pay-in books for 1992/93. I cannot account for these losses. It is possible they were also missing in March, and I simply didn’t notice their absence. Without these records, I was hard-pressed to produce full and correct financial statements for my forensic accountant, Derek Ryan, and was reduced to scavenging information from wall calendars and other unofficial sources. When Garry returned to Queensland, I got him to take my remaining work diaries with him for safe-keeping.

Hacking – Julian Assange

Chapters Two to Seven and Chapter Nine in our Hacking Julian Assange page give sound reasons as to why I had doubts surrounding the security of my business premises.

I had good reason to be nervous and on edge after having lost important documents from my business. This period of doubt came after Telstra threatened me and the Australian Federal Police confirmed Telstra had, indeed, been listening into my telephone conversations without my knowledge or consent. It was also during this time that hackers (who I now believe included Julian Assange) contacted Graham Schorer, after we had signed our arbitration agreements on 21 April 1994.

Graham stated that the hackers had advised him that the Government had been working, together with Telstra, to cover up the systemic network faults associated with our businesses and that it was important that we have this information.  I remember this statement particularly clearly because it got me wondering: was it possible that the Australian Government could really be involved in protecting Telstra, while Telstra was actually the defendant in an arbitration with Australian citizens – a legal process that was allegedly being conducted according to the rule of law?  If we went ahead and accepted thee emails and faxes that the hackers claimed showed that this was really happening, then surely that evidence would be enough to prove our claims and so win our cases, even before we had completed our submissions!  This was such a big issue.  But… after what had, back then, been recent events, and with a heightened vigilance, I had a terrible gut-feeling that Telstra and the Government might be setting us up so they could then claim that we had acquired the evidence illegally, and that could possibly be used so that the Government could call a halt to our arbitrations and so stop us in our tracks.

My thoughts were all over the place.  After having lost the diaries that I desperately needed to assist me in my claim; after the burglary at Graham’s business; and with the loss of so many COT-related documents, I was becoming more and more nervous. I was seriously afraid that we were deliberately being lured into this process, i.e. accessing documents illegally, and, if I was right but we accepted the hackers’ offer, then we could kiss our arbitrations goodbye.  I suspect that it was my fear alone that eventually convinced Graham to decide against accepting the documents, even though we were both aware that they could, possibly, be a really valuable support for our claims.  Years later, as the following link shows, the media claimed that Julian Assange had helped the Victorian police in relation to a number of child abuse cases (see Julian Assange) and it was then that we realised what we had missed out on. It seemed that a very young Julian Assange was prepared to fight in support of natural justice for ordinary citizens.  If only we had known that when Graham received the email from Assange and his team.

Sadly, as our Manipulating the Regulator page shows, the government communications regulator AUSTEL, in April 1994, did conceal the truth about the seriousness of the network problems affecting my case and that of Graham Schorer (see AUSTEL’s Adverse Findings20111025143553046 and 20130627133948062.). So, the hackers were right all along.

The fallout from all this became evident some weeks after my arbitration hearing in October 1994 when the arbitrator asked for my annual diaries for assessment. During this hearing, I begged to be allowed to submit these fault-complaint notebooks (as the transcripts of this meeting show). I explained how, and why, I had to copy fault-complaint records into the diaries from exercise books and affirmed that nonetheless, my chronology of fault events was true and correct. But Telstra objected and the arbitrator asserted without viewing them, that they were irrelevant. Garry sent the diaries directly to the arbitrator’s office. Two months later, in February 1995, Telstra advised the arbitrator that they had found discrepancies in my diaries, claiming I had added entries after the date that the calls and incidences recorded had actually occurred.

Absent Justice - Austel+39s Adverse Findings

Although Telstra submitted their defence of my claims on 12 December 1994, they waited until February 1995 before officially advising the arbitrator, that their forensic document researcher had found discrepancies in those diaries, claiming that I had added entries sometime after the date that the calls and incidences recorded had actually occurred. As stated above, I do not deny this since I copied the fault complaint records into the diaries directly from my exercise books, so that the diaries could be kept off-site, away from my office. This does not change the fact that the desktop exercise books’ chronology of fault events, as well as who had telephoned, when and what telephone conversations were about, were true and correct. Nevertheless, when it came to his summary in relation to these diaries, the arbitrator stated in his award:

… I have considered, and have no grounds to reject the expert evidence provided by Telecom’s, Forensic Document Examiner, who examined the claimant’s diaries and because of numerous instances of non-chronological entries, thereby causing doubt on their veracity and reliability”.

I contend that if the arbitrator had allowed these exercise books as evidence and had provided them to Telstra’s forensic documents examiner, he would have had a clearer understanding of what the exercise books really were and would have realised there were no attempts at deception.

Prior to the 21 April 1994 signing of the arbitration agreement, and before the final COT report was provided to the communications minister on 13 April 1994, I and some other COT Cases attended a two-day, lock-up, confidential viewing of the draft COT Cases report at AUSTEL’s headquarters in Queens Road, Melbourne.

Absent Justice - Two Day Lock Up

At this meeting, AUSTEL’s chairman Robin Davey reminded Graham Schorer and I of commitments stated in a letter (dated 23 September 1992) from Telecom’s commercial and consumer managing director:

The key problem is that discussion on possible settlement cannot proceed until the reported faults are positively identified and the performance of your members’ services is agreed to be normal. As I explained at our meeting, we cannot move to settlement discussions or arbitration while we are unable to identify faults which are affecting these services’ …and…’Until we have an understanding of these continuing and possible unique faults, we have no basis for negotiation’ Arbitrator File No/78 AUSTEL COT Case Report, point 5.7)

I cannot recall now how many COTs attended this lock-up AUSTEL meeting, but I do clearly remember there were at least seven of us who were quite vocal. I also recollect very clearly what I spoke about and which documents we were told we could not take out of the building. One thing was very obvious from all the security arrangements around the reading of the draft of AUSTEL’s COT Cases report: the government regulator did not want the public to know what the COT and AUSTEL investigations had uncovered in relation to the many systemic faults within Telstra’s copper wire and fibre network.

The following is from the transcript of an oral interview of AUSTEL’s representatives, Bruce Matthews and John McMahon, conducted at the Commonwealth Ombudsman’s Office on 22 September 1994. On page 7 of this transcript the Commonwealth Ombudsman’s officer John Wynack asked: “What was the date the report was issued, the AUSTEL report?” AUSTEL’s representative replied:

“The final report was April – I can’t remember the date in April, but April 1994. The draft report was produced in March 1994 and Telecom received their copy of that at the time.” (See Destruction of Evidence / Perverting The Course of Justice/Falsification Reports File No/4)

While this statement by one of AUSTEL’s representatives makes clear that Telstra received a copy of AUSTEL’s draft findings, NONE of the information in this report, which enabled the government communications regulator (AUSTEL) to arrive at their adverse findings against the Telstra Corporation, was ever made available to the COT claimants during their arbitrations. The following letters, dated 8 and 9 April 1994, to AUSTEL’s chairman from Telstra’s group general manager, suggests that AUSTEL was far from truly independent, but rather could be convinced to alter their official findings in their COT reports, just as Telstra has requested in many of the points in this first letter. For example, Telstra writes:

“The Report, when commenting on the number of customers with Cot-type problems, refers to a research study undertaken by Telecom at Austel’s request.  The Report extrapolates from those results and infers that the number of customers so affected could be as high as 120,000.In relation to point 4, you have agreed to withdraw the reference in the Report to the potential existence of 120,000 COT-type customers and replace it with a reference to the potential existence of “some hundreds” of COT-type customers” (See Open Letter File No/11, page 3, point 4)

The following day, Telstra again writes to AUSTEL stating:

“the number of Telecom customers experiencing COT type service difficulties and faults is substantially higher than Telecom’s original estimate of 50″. (Public Government Report)

The fact that Telstra (the defendants) were able to pressure the government regulator to change their original findings in the formal 13 April 1994 AUSTEL report is deeply disturbing. The 120,000 other customers – ordinary Australian citizens – who were experiencing COT-type problems are not referred to in the Department of Communications Information Technology and the Arts (DCITA) report (see Senate Evidence File No 28), although this was used by them to determine the validity of the COT claims

Telstra signed this on 18 November 1993 and the four COT cases (me included) on 23 November 1993. Various commonwealth ombudsman letters sent to Telstra on behalf of the four COT cases are attached to various absentjustice.com download links, and they clearly show we were disadvantaged because of our trust.

Some readers may be wary of accepting all I write here as truth, as I am aware that some of it seems so outlandish. Evidential documents and testimonials support 95% of what I state on absentjustice.com. However, the reader should understand that not all things can be proven, including my verbal discussions with both the TIO and TIO Special Counsel who, up and until 21 April 1993, administered the above Fast Track Settlement Proposal commercial assessment proposal

Absent Justice - God is my Judge

My statement, that 5% of this saga cannot be proved, revolves around those discussions. As God is my judge (not said lightly at age 71) I stated clearly and often to the TIO and TIO Special Counsel during the Fast Track Settlement Proposal prior to signing the Fast Track Arbitration Procedure arbitration on 21 April, 1994: How can I be forced into this bloody arbitration process when Telstra has not provided me with all of my promised FOI documents and/or fixed the ongoing telephone problems that are still destroying my business?

I was not aware, at the time, of AUSTEL’s secret findings in their 3 March 1994 investigation into my complaints – where the final statements in the 69-page report (see Open Letter File No/4 File No/5 File No/6 File No/7, include:

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

In view of the continuing nature of the fault reports and the level of testing undertaken by Telecom doubts are raised on the capability of the testing regime to locate the causes of faults being reported”. (See File No/7,)

In other words, AUSTEL, and perhaps Telstra, suspected that Telstra’s future arbitration Service Verification Testing of my telephone service lines would NOT locate the “causes of faults being reported” either during or after my 1994/95 arbitration. AUSTEL’s chairman, the TIO and TIO Special Counsel, between November 1993 and mid-April 1994, made it quite clear the technical consultants appointed to the process (under the direction of the assessor/arbitrator) would investigate all ongoing problems. This process should ensure that Telstra rectified all the faults before a finding could be handed down. The many exhibits in our absentjustice.com download attachments show that the arbitrator, the TIO and the TIO-appointed resource unit had a different agenda to the arbitration agreement. We, the COT Cases, were forced to proceed with without the necessary information we needed to fully support our claims.

In my case, if Telstra had not deliberately withheld important network documents and/or provided them too late, I could have clearly impressed the arbitrator to hand down an interim award before he left for Greece, but he could NOT publish the final version of that award until the arbitration technical consultants properly determined the reasons for the lines continually locking up after calls terminated.

I didn’t receive AUSTEL’s covert 69-page report from the Australian Communications & Media Authority (ACMA) until it was provided to me under FOI on 27 November 2007. This was twelve years after the TIO issued a media release (12 May 1995) publically declaring that I had received natural justice (see Arbitrator File No/79). That statement was made more than two hours after the TIO received a letter (also dated 12 May 1995) from the arbitrator advising that the arbitrator’s findings in relation to my case had been based on an agreement that was not credible and needed revising for the following claimants. This TIO was sworn in as a minister in the new Australian Liberal Coalition Government, 10 months later, with a front bench seat and a portfolio to match.

Returning to the removal of liability from the resource unit and special counsel, despite advice by the official administrator to the arbitration that they had to incur some liability (see Open letter File No 54-A to 54-F). Why did the arbitrator allow the arbitration agreement to be altered to suit the resource unit and special counsel?

Absent Justice - Secret Meetings

This leads us to examine the following events: First we have the 22nd March 1994 covert, pre-arbitration meeting that was attended by these three characters (the TIO, the TIO’s Special Counsel and the arbitrator), so they could discuss the arbitration agreement with Telstra’s Arbitration Liaison Officer and Telstra’s Legal Counsel. They met, without advising the claimants about that meeting, with the defendants and their lawyers, and then we also have those same three gentlemen, all qualified lawyers, agreeing to allow the Resource Unit and the TIO’s Special Counsel to be completely exonerated from any liability at all, in connection with the arbitrations.

What sort of collusion was going on behind closed doors unbeknown to the claimants, and how many other clandestine agreements were made without our knowledge? As the administrator to our arbitration, the TIO should have ensured that before any party signed the arbitration agreement, both the claimants and the defendants were provided with the amended form to acknowledge and sign that they agreed to the changes made. What really prompted these three parties, the TIO, the TIO Special Counsel and the arbitrator, to ensure the removal of these liability clauses? In the government communications regulator’s AUSTEL COT Cases Report that was provided to Communications Minister, the Hon Michael Lee MP (see point 5.67, Arbitrator File No/89), it is clearly stated that:

“the arbitrator is to be a person of clear impartiality, independence and integrity with expertise in relevant legal, technical and accounting issues or access to them and with experience in commercial assessment and arbitration”

 That fact alone should have been enough for the TIO and the government communications regulator to declare our arbitrations null and void. That my arbitrator was NOT of clear impartiality or independent, should also have been enough to declare the process a grave miscarriage of justice. This arbitrator, in fact, had been Graham Schorer’s business AND legal advisor for a number of years, as well as an official legal advisor for Mr Schorer’s earlier claim against Telstra in the Federal Court, in relation to the very same telephone fault issues that the arbitrator was now assessing, for a second time, as the impartial and independent arbitrator. See this conflict of interest issue further on in our story. I am not implying that the arbitrator had no relevant legal, technical or accounting ability, or access to or experience in commercial assessment. However, we know that he was not experienced in arbitration at that time, despite the government regulator officially advising the minister and the public that he had to be in order to arbitrate complex matters like the COT arbitrations. It was therefore a risk for all concerned to appoint an arbitrator who was NOT properly qualified (graded), and it is clear now that both the government communications regulator and the President of the Institute of Arbitrators Australia were aware of this fact.

11 April 1994: This letter, from me to Telstra’s CEO (later returned to me by the Australian Federal Police [AFP], marked Protected) states:

“Would you please instruct the management team within Telstra that can be respond to this request. How does a conversation I had with a former Prime Minister Mr Malcolm Fraser, end up in s Telecom document as common knowledge. I spoke with Mr Fraser yesterday of this matter. He has made it very clear he did not talk to anyone within Telecom about our conversation in the month of April last year”. (See also Main Evidence File No 31)

AFP transcripts (see Australian Federal Police Investigation File No/1) show this particular issue was also discussed during my second interview with the AFP on 26 September 1994. Telstra was unable to give either the AFP or I a feasible answer regarding how they learned of this phone conversation with Mr Fraser. Chapter two in Hacking – Julian Assange provides further details on the extent of the privacy breaches.

 

 

The Arbitration (Deception) Continues

Absent Justice - Deception Continues

When the four COT cases signed our government-endorsed arbitration, we were unaware the confidentiality clauses would be used against us to stop us exposing criminal conduct perpetrated against us by the defendants and others associated with the administration of the process. This confidentiality agreement successfully stopped a proper, transparent investigation into why the arbitrator had not control over the arbitration process and why the arbitrations were conducted outside of the ambit of the arbitration procedures (see below). As the following link, Is a non-disclosure agreement legal if it is utilized to cover a, shows, Telstra, the previous arbitrator and the TIO allowed a secret deal to be implemented into the agreement as Chapter Seven below shows. This covert deal benefited Telstra, to the detriment of the claimants. These people should not be permitted to hide behind that confidentiality agreement, as has been the case these past two decades.

21st April 1994, six months later and still with NO discovery documents, we signed the Fast Track Arbitration Agreement despite the lack of the promised documents we would need to prove our claims. This was later confirmed on 23rd March 1999: after the Senate Estimates Committee Hearing into why Telstra withheld so many documents from the COT Cases had been concluded. The Australian Financial Review (an Australian weekly newspaper) reported that the Chairman of the Committee, Senator Alan Eggleston, had stated:

“A Senate working party delivered a damming report into the COT dispute. The report focussed on the difficulties encountered by COT members as they sought to obtain documents from Telstra.

The report found Telstra had deliberately withheld important network documents and/or provided them too late and forced members to proceed with arbitration without the necessary information. Senator Eggleston said:

“They [Telstra] have defied the Senate working party. Their conduct is to act as a law unto themselves”.

Senator Eggleston’s statement that “The report found Telstra had deliberately withheld important network documents”, is quite clear. The TIO board and council definitely hid two important issues from the Senate Estimates Committee: (1) The board and council knew that the TIO-appointed resource unit ALSO stopped the COT claimants from receiving relevant documents during the arbitration process, and (2) The TIO and the defendants (Telstra) allowed this to happen by secretly placing the resource unit in charge of deciding what documents they thought were relevant for the arbitrator to view and which documents they thought should be withheld from the arbitration process. (See Chapter Seven, A Secret Deal, below)

The resource unit failed to disclose to the arbitrator, during my arbitration, the ongoing problems that my business was experiencing, with lockup faults on my 1800 service line preventing calls from coming in and incorrect charging for calls that arrived at the Portland exchange 20 kilometres away but never arrived at my business. As shown in  Arbitrator File No/53, although the resource unit advised the arbitrator and TIO 15 months after my arbitration that they had withheld this vital information from the arbitration process, it was of little assistance to me, because the TIO failed to follow up on why this had been allowed to happen.

What might have happened, if the Senate Estimates Committee had been aware of these facts during their two-year investigation into the non-supply of documents to the COT claimants? Would the TIO have been officially brought before the Senate and made to explain why the TIO and defence via the resource unit had secretly been allowed to act as a secondary arbitrator, with the power to decide which documents reached the arbitrator and claimants, and which were withheld? Remember, there was no mention of this in the arbitration agreement we signed.

In mid-April 1994, the TIO (the arbitration administrator) knew that the four claimants had registered various FOI requests in November and December 1993, asking for discovery documents. All four, including me, had still not received anywhere near the amount of information needed to mount our individual claims. I, like Senator Eggleston, use the word forced because the TIO was very clear when he told the COT cases that if they did not sign for the TIO arbitration process (which, he said would allow the arbitrator access to the documents they were all asking for) then he would not continue to administer the already-signed Fast Track Settlement Proposal. If this sort of pressure applied by the TIO was not placing a claimant under duress to sign a document he or she does not want to sign, then what is? A Telstra internal email dated 2 March 1994 (Arbitrator File No/86) that discusses a number of proposed COT arbitration issues, between a number of Telstra’s executives, includes the comment:

“My course therefore is to force [the arbitrator] to rule on our preferred rules of arbitration.”

The rules referred to here are the very same Telstra-designed “Preferred Rules of Arbitration” the TIO’s office secretly used for the COT arbitrations, while at the same time telling various government ministers and the claimants that the rules they were about to sign had been drawn up by the arbitrator and the President of the Institute of Arbitrators Australia. Therefore, not only did Telstra get the structured legal arbitration process they wanted, but they also managed to force the arbitrator to use the arbitration agreement that was eventually branded ‘not a credible agreement to have used’. Of course, by then, he had used it anyway – for my arbitration.

Senator Ron Boswell made an astonishing statement in the Senate on 20 September 1995, raising his concern regarding Telstra’s statement: ‘My course therefore is to force [the arbitrator] to rule on our preferred rules of arbitration.’ Quite emotionally, Senator Boswell added that:

“These COT members have been forced to go to the Commonwealth Ombudsman to force Telecom to comply with the law. Not only were they being denied all necessary documents to mount their case against Telecom, causing much delay, but they were denied access to documents that could have influenced them when negotiating the arbitration rules and even in whether to enter arbitration at all”. (See Senate Evidence File No 1)

It now seems that no-one can explain, or perhaps no-one is prepared to explain, where the arbitrator was when the first four COT claimants were ‘forced’ to go to the Commonwealth Ombudsman in the hope that the Ombudsman would force Telstra to comply with the law. One of the hardest things to understand is that although the arbitrator was somehow forced to use Telstra’s proposed rules of arbitration instead of an independently drafted agreement, even though many senators on both sides of Australian politics were told that the agreement had been independently drawn up when it had not, those responsible for this deception have never been brought to account for what they did and almost as alarming is the way I, the first to go through arbitration, was discriminated against when the three claimants whose arbitrations followed mine received so much more time (years in one case) to submit their claims and answer Telstra’s defence of those claims than I had been allowed.

Documents Will Be Supplied?

The arbitrator, the administrator, and special counsel assured the four COT parties that the Telstra documents they required for their cases would begin to flow through to them once their signatures were on the agreement (see Crimes Act 1958 Evidence File No 9). This was stated before we signed the agreement. By May 1994, one month before the deadline to submit claims, the flow of documents stopped. (See Senate Evidence File No 1) Therefore, I personally arranged to go to Melbourne on the 14 May 1994 to look at some FOI documents that Telstra had stated they would show me in their offices.

These two officials supplied me with some of the documents that I should have received under my December 1993 FOI requests. One of these officials provided 30-odd heavily blanked out documents plus approximately 56 fax coversheets with attached documents. One of these documents referred to the MELU (Melbourne) exchange, which had caused me massive problems between August 1991 and March 1992, (see Crimes Act 1958 Evidence File No/1). I asked one of the officials if he could supply the document without the blanking out. This official went away for some time while I continued to check the documents provided.

I had some documents that Telstra had previously supplied with me, and while this official was away from the room, I examined some fax coversheets I had seen before. They now had different material attached. Nothing seemed to match. For example, documents relating to a fault in 1991 were attached to a fault record dated 1993 that stated that no fault had been found. I was so alarmed at this discovery that I phoned Detective Superintendent Jeff Penrose of the Australian Police and described the situation to him. At his suggestion, I prepared a Statutory Declaration (see Crimes Act 1958 File No/3), which I provided to both the TIO and the arbitrator. Even though the TIO was acting as the administrator to my arbitration, the TIO office refused to send anyone to accompany me back to Telstra’s FOI viewing-room. Considering that, as already noted in my absentjustice.com for this date period, Telstra documents show Telstra’s arbitration liaison officer wrote to the TIO regarding the TIO-appointed resource unit and AUSTEL censoring Telstra documents before the four COT claimants were allowed to use them to support their claims. We have to wonder, is this why no one from the TIO’s office would help to investigate this discovery further?
I needed to know how I could safely submit those records to the arbitration, while maintaining my patrons’ privacy. The TIO thought I should raise this matter with the arbitrator, who could make provisions to have this material viewed in complete security.

Transcripts from my arbitration hearing on 11 October 1994 (see Main Evidence File No 46) confirm that, under pressure from the defendants (Telstra), the arbitrator refused my request to submit this information. He claimed that it was not relevant. Two significant people thought that information was very relevant to my case; my original Fast Track Settlement Proposal claim advisor Selwyn Cohen, of Low Lipman Melbourne Accountants and my later Fast Track Arbitration Procedure claim advisor, Barry O’Sullivan (now Senator Barry O’Sullivan).In May 1994, accompanied by Ms Claire Allston, I met with the TIO in his office in Exhibition Street, Melbourne. I explained that I needed to submit records of my singles club patrons to the arbitration, to support my claim regarding revenue losses I sustained from that part of my business. This was on top of the revenue losses from the holiday camp patronage – all as a direct result of phone and fax problems. I told the TIO I was extremely concerned about the burglaries and break-ins at the premises of COT members Graham Schorer and Garry Dawson, plus an unexplained loss of relevant claim material from my own business. I was also anxious about the security of names and addresses for my singles club patrons and apprehensive they may be made public. If that did occur, I might be held responsible.

It is important to note that some of the registered faults recorded with Telstra, before my arbitration, were deleted/removed from some of documents I studied in Telstra’s FOI viewing room (see Crimes Act 1958 Evidence File No/1File No/2File No/3 and File No/4). I have since provided many exhibits (part of the COT cases chronology of events) to the Australian Prime Minister’s office and the AFP, which prove the existence of the faults that I registered over the six years covered by my arbitration claim. Those documents, however, appear to have never arrived at the arbitrator’s office.

22 April 1994:  This fax from AUSTEL to me, which is dated the day after I signed the arbitration agreement, explains that AUSTEL had received three blank faxed pages (from my fax line – 55 267 230. AUSTEL determined these three faxes had come from my office by checking their fax journal. On this occasion all three pages had a very small outline of a square at the top left side of each page. AUSTEL’s fax journal shows transmission times for these blank page of 01.40, 02.13, and 2.22 minutes and my fax account includes charges for these pages, even though there was no identification on the pages that AUSTEL received to show where they had come from. It was important to discuss this blank-page episode at the beginning of my arbitration because I continued to report, to the arbitrator, the ongoing problems I was having with faxes and my suspicion that faxes I had sent to the Arbitrator had never arrived.

I faxed Dr Hughes further claim material

23 May 1994: This fax billing account confirms I made five attempts from my office to fax this information to Dr Hughes failed. Telstra’s B004 defence document stated the fax couldn’t get through because Dr Hughes’s fax machine was busy. If this is so, why was I charged for the five calls?

MISSING FAXES

After numerous faxes sent from my office to Dr Hughes did not get through, I became more and more agitated. I had no idea where these faxes might be disappearing to, or why.

Documentation obtained from Ferrier Hodgson Corporate Advisory (FHCA) and the TIO-appointed arbitration resource unit confirm numerous documents forwarded to Dr Hughes’ office did not appear on their list of documents as being received.

COMMENTARY:

Between me signing the Fast Track Settlement Proposal, 23 November 1993, and realising Dr Hughes’ office was not getting all of his transmitted faxes, I participated in these official inquiries and investigations:

Question

How could anybody believe that it was reasonable to expect the COT Cases to successfully prepare their claims while they were involved in the above investigations?

27 May 1994: Trying to produce a claim in some readable form when the story was so complex, multi-layered and further complicated by long-delayed access to necessary information, was extremely difficult. My phone and fax lines became lifelines to Garry Ellicott in Queensland. When Garry attempted to ring me on 27 May 1994 on my 1800 service, he twice reached a recorded announcement telling him my number was not in service, before he was finally connected. When Garry rang the Telstra fault centre to complain about the recorded messages, the operator told him she could not register the fault because the complaint had to come from the customer. Garry’s response was understandably blunt. How, he asked, can the customer complain if he doesn’t know I’m trying to reach him? How can he complain if he is not aware that his incoming callers believe he’s no longer trading? When my telephone account arrived I had, of course, been charged for both failed calls. These 27 May 1994 recorded voice messages were quietly investigated by the government regulator AUSTEL (now ACMA) instead of the arbitrator.The arbitration process appears to have been set up to investigate only some issues, with the more important ones addressed in camera. Of course, the claimants were never advised of these facts, before they signed for the arbitration.

15 June 1994: In the claim I lodged with arbitrator, I made it very clear that:

The arbitration agreement states quite clearly that the arbitrator would pass the claim to Telstra once it has been completed. Then, he was to allow Telstra one month to submit their defence. George Close (my technical advisor) wasn’t able to submit his report until late in August 1994. Various documents indicate that Telstra had received my interim claim by 21 June 1994. However, since it was only an interim claim and my formal claim wasn’t complete until George’s report had been submitted, this meant that the arbitrator allowed Telstra at least three months in which to prepare their defence. The timing obviously began when they received my interim claim. Telstra did not submit their defence until 12 December 1994, almost six months after receiving my interim claim. The arbitrator allowed them that extra time. None of the claimants knew that the arbitrator was not a properly graded arbitrator, but that he was actually in the process of attaining his grading, while he was arbitrating on the extremely complex COT cases. Unfortunately, the arbitrator failed his grading exams on this occasion. Then-president of the Institute of Arbitrators Australia (Mr Nosworthy) wrote to me on 10 April 2002 noting:

“Dr Hughes  has written to me expressing uncertainty as to whether he was a member of the Institute of Arbitrators Australia at the time of the arbitration. Although our records indicate that he was a member, he was not at the time a graded arbitrator within the Institute, and was not included on the Register of Practising Arbitrators until well after he delivered the award in your matter on 11 May 1995.” (See Arbitrator File No/87)

So why have the TIO (the process administrator) and the government (who endorsed the first four COT arbitrations) never held the arbitrator to account for misleading all parties involved in the arbitration into believing that he was a properly qualified arbitrator? This is particularly pertinent when it is examined in the context of a letter dated 28 September 1996, from Mr J.J Muirhead, as president of the Institute of Arbitrators Australia, to me (see Arbitrator File No/88). He commented that not appointing an arbitrator from the Institute means “there is always a risk in these circumstances”. How can an arbitrator write to the president of the Institute of Arbitrators Australia, “expressing uncertainty as to whether he was a member of the Institute of Arbitrators Australia at the time of the arbitration”? Why have the TIO and the person who appointed this ungraded arbitrator never been brought to account for not ensuring he was fully graded.

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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.

Quote Icon

“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

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

Sister Burke

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

Senator Carr

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

– Edmund Burke