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Chapter Fourteen - Was it Legal or Illegal?

Absent Justice - Legal or Illegal

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

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

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

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

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

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

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

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

Another Telstra document referred to the need for:

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

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

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

Absent Justice - False Documents

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

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

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

Three months after my arbitration was declared final, the elusive comprehensive log of my fault complaints that had been concealed from the technical unit (refer Arbitrator File Nos/29 and 30) by either the arbitrator or the resource unit, re-emerged. The concealment of this important fault log – possibly the most important document in the whole arbitration process – means that there had to be a sinister motive behind it. If this was not gross misconduct on top of criminal conduct, then what is?

Behind all this deception is a smoking gun that links together all the crimes that were committed against the claimants; crimes that began even before the signing of the arbitration agreements; crimes that continued throughout the arbitrations and crimes that were even committed after those arbitrations had been labelled as ‘complete’.

For years I could not bring myself to believe the rumours that were floating around Melbourne while the TIO was administering the COT arbitrations. I heard that the Institute of Arbitrators Australia, the Commercial Arbitration Act 1984 and the confidentiality clauses in the COT’s arbitration agreement were being used as a shield to hide behind during the COT arbitrations. This would mean that the only way to challenge the arbitrations would be through a formal, legal appeal process, which, according to the Act, is almost unachievable.

Absent Justice - The Injustice Continues

Various interested parties looking at my story have suggested that the concealment of a document like my comprehensive log of fault complaints, during a litigation process like my arbitration, is considered a jailable offence in many Western democracies. Here in Australia however, this crime was concealed under the confidentiality clauses in my arbitration agreement even though it is now clear that the arbitration was not administered according to the agreed ambit of the Australian Arbitration Act 1984. If the Arbitration resource unit had provided this log for assessment, as they should have, it would have instantly been obvious that the telephone and fax problems were STILL occurring, even as my arbitration proceeded

In connection with these problems, in August 1994, George Close, my technical advisor, produced an arbitration report using Telstra’s own data showing that, between December 1993 and February 1994, two of my main service lines suffered blockage periods of up to 47%. George could not report occurrences between February 1994 and April 1995 because Telstra refused to supply any data for that period, even under the official arbitration discovery process. Even if we had received that extra data, however, the deletion of the arbitrator’s technical consultants’ request for an extension of time to investigate the ongoing billing issues meant it is unlikely this period have been inspected anyway.

Garry Ellicott reported the two RVA faults to Telstra on 27 May 1994 and I reported these faults to both AUSTEL and the TIO. My main complaint to the TIO was that I should not even have been in arbitration while these faults continued to destroy my business AND also interfered with the preparation of my claim. The TIO however would not listen to these valid points, but informed me that the arbitration technical unit would investigate these matters when they visited Cape Bridgewater as part of the arbitration process. As Open letter File No/46-F to 46-l) shows, and we discuss elsewhere, the arbitrator stopped the technical unit from carrying out that investigation at all. In a 16 February 1996 letter to the then-president of the Institute of Arbitrators Australia, the arbitrator states:

 “Mr Smith’s assertion on page 4 that a technical expert refused to discuss technical information at his premises on 6 April 1995 is correct – in this regard, the technical consultant was acting in accordance with his interpretation of my direction which prohibited him from speaking to one party in the absence of the other party at any site visit”. (See Open letter File No/45-A to 45-I and more importantly Open letter File No/45-G page 2, bullet 2)

Absent Justice - TIO Investigation

I am sure, if Garry Ellicott and Senator Barry O’Sullivan had known the arbitrator would stop the technical consultants from investigating most of the $51,000-worth of work they had prepared on my behalf, they would have demanded an investigation into the arbitrator’s refusal of the extra weeks his own technical resource unit requested to investigate my claims properly. Barry and I both signed each of the 16 pages of my official arbitration agreement. I believe, if Barry had known that none of the ongoing problems with my service lines would be addressed during my arbitration, despite those issues causing billing problems and interfering with my arbitration claims, and if he had known the arbitrator would have ‘no control over the process’ because it was going to be ‘conducted entirely outside of the agreed ambit of the arbitration procedures’ then he would have refused to sign the agreement at all, and probably would have advised me not to sign it either.

So why did the arbitration project manager stop the TIO from investigating my valid claim that the billing faults had been included in my elusive comprehensive list of fault complaints? What was the project manager so worried about that led him to write something he knew was an outright lie (see Open letter File No/45-A)? Why did he infer that I only submitted my billing claim documents in April 1995 (late in the arbitration) when arbitration documents show AUSTEL and Telstra was discussing these same billing faults as early as October and December 1994 (see Open letter File No/46-A to 46-l?  M Rundell (Arbitration Project Manager) his character, like Charles Dickens’ notorious character, Fagin, is more than just questionable. This one deliberate lie cost me a proper transparent investigation. Sadly, the COT story is not a stage play, it is real. The villains appointed to run the process were hand-picked from among Australia’s business and government executives, which is probably why my claims have never been properly investigated. It seems also, sadly, that the scale of the power held by this small, but elite circle of influential people is growing, year by year.

Scrambling through this maze of deceit and deliberately misleading advice, continually takes us back to one important question: Why? Why would highly paid professionals like the arbitration project manager to decide to mislead and deceive an ombudsman? He must have known that, if he had not misled the TIO, my ongoing 008/1800 problems might finally be addressed as an amendment to the arbitration process that had been facilitated by the government regulator to address these type of ongoing problems.

I provided the TIO with enough evidence to suggest my faxes were either being intercepted en route to the arbitrator’s office or the arbitrator’s office was not passing them on to Telstra’s defence unit so they could be addressed as part of the arbitration procedure. This ‘non-legalistic’ arbitration was cursed with confusion and complications from the very beginning and even now no one seems willing to explain why so many of my claim documents disappeared during the process. When I found out that the technical resource unit only assessed my phone and fax faults from February 1988 to the start of 1994 I became even more convinced of a conspiracy of immense proportions. A conspiracy that not only involved the arbitrator, Telstra and those who administered the procedure, but also involving people higher up within Telstra; people who had the power to hide evidence. How can an Australian-owned corporation like Telstra fabricate reports and why are there no safeguards in place to check and prevent this from happening?

PLEASE NOTE: when Telstra provided their submission to AUSTEL on 16 October, 1995 Open letter File No/46-L they provided no advice of the date they had rectified this RVA message.  AUSTEL’s Chief Engineer, Cliff Mathieson, is fully aware I was still complaining about this RVA message affecting the viability of my business up until late 1996.  From December 1996 through to March 1997, I was still getting second and third-hand information from Singles Club patrons, (who were aware of this RVA fault), they continually persisted until they got through.  Their comments were that it took two or three times to get through.  Sadly, it is apparent that many customers would not bother having to try a second or third time!

Dr Hughes wrote to the TIO on 23 January 1996, noting:

“I enclose copy letters dated 18 and 19 January 1996 from the Institute of Arbitrators Australia. I would like to discuss a number of matters which arise from these letters, including:

(a) the cost of responding to the allegations;

(b) the implications to the arbitration procedure if I make a full and frank disclosure of the facts to Mr James.”. (See Open letter File No/45-D)

Absent Justice - 24000  documents not  viewed

It is confirmed from Chapter Three in our Prologue page (see below) that not only were these 24,000 documents not viewed by Dr Hughes and his resource unit it was he who refused me the extra time I had requested to submit two reports (into arbitration) which I had collated from these late received 20,000 FOI documents aware because they actually were supposed to have been freighted to Brisbane airport instead of the Portland airport 1,200 miles in the wrong direction. Dr. Hughes lies to Laurie James cost me dearly and continues to cost me dearly until these lies are investigated.

Had Dr. Hughes sidestepped John Pinnock, and instead made a full disclosure of the true facts surrounding my claims, the matters I am discussing on absentjustice.com would have been addressed in 1996. By reading all of Open Letter File No/51-A to 51-G and Chapters One to Four in our Prologue page, you can decide for yourself who is telling the truth concerning these late-released 24,000 alleged-read documents.

A further letter from Dr Hughes to the TIO on 15 February 1996 states:

“I would appreciate your confirmation that there is nothing in the proposed letter which would embarrass your office or jeopardise the current arbitrations.

“You may consider it appropriate for you to provide an independent letter of support. This is of course a matter for your discretion.” (See Arbitrator File No/43)

If Dr Hughes had conducted my arbitration in accordance with the ambit of the arbitration procedures, why would he seek confirmation from the TIO?

Introduction File No 1-E confirm John Rundell advised the TIO, on 13 February 1996, the arbitration financial report, addressing my losses and which he was responsible for ensuring was factual in every detail, was not a complete report when submitted into arbitration for response by both Telstra and my financial adviser. In his same letter, the project manager states, “You should be aware that the Brighton CIB to interview Mr Smith in relation to criminal damage to my property…” When I read this comment, six years after it was written, I contacted the Brighton CIB (Victoria Police) who said they never intended to interview me regarding this matter and, in fact, they had no record of me being a suspect in any criminal matter at all.

On 17 February 1996 Dr Hughes wrote to to Laurie James, President of the Institute of Arbitrators (see point 3 above) attaching a copy of John Rundell’s letter of 13 February 1996 to the TIO). In this letter Dr Hughes advised Lauie James that:

“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 were 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 1 January 1996 (see Arbitrator 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 File No/45-G and Arbitrator 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 FOI material after my claim was finalised and that I “did not have the ability to examine these documents” in order to add to my claim.

John Wynack, director of investigations for the Commonwealth Ombudsman’s Office, and Tony Morgan, national chief adjuster for GAB Robins (Australia), are fully aware that most of these 24,000 documents were not related in any way to the previously withheld briefcase documents as well as having no identification or schedules from whence they were sources, while others belonged to the Fortitude Valley and Lutwyche telephone exchanges in Brisbane, more than 1,200 kilometres from my exchange. How could I submit this Fortitude Valley and Lutwyche technical documentation into my own Cape Bridgewater Holiday Camp arbitration claim when it belonged to Brisbane COT case members Ann Garms and Maureen Gillan?

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, were sent to me when they clearly belonged to Ann Garms and Maureen Gillan.

On 5 May 1995, Dr Hughes wrote,

“I refer to your telephone message of 4 May and your facsimiles of 4 and 5 May 1995 and advise I do not consider grounds exist for the introduction of new evidence or the convening of a hearing at this stage.” He also reiterated his previous instructions: “any comments regarding the factual content of the Resource Unit reports must be received … by 5:00pm on Tuesday 9 May 1995” (See Call For Justice Arbitrator File No/88).

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.

How does an ordinary citizen expose the truth about a high-profile arbitrator like Dr Gordon Hughes, who allowed his wife’s name to be used in a letter from John Pinnock (the then Telecommunications Industry Ombudsman) to the President of the Institute of Arbitrators Australia, stating that: “Mr Smith has admitted to me in writing…” ‘… to telephoning the arbitrator’s wife at 2 o’clock one morning’ (see ‘Lies by the TIO’ below) when no such phone call and no such admission ever took place? Even worse, Dr Hughes received a copy of Mr Pinnock’s letter so he was well aware that this 2 a.m. statement was false, and had been written with the sole aim of discrediting my character and so preventing the President of the Institute of Arbitrators Australia, Laurie James, from investigating my claims against Dr Hughes. When Dr Hughes allowed his wife’s name to be dragged into a situation such as an investigation by the Institute, particularly when he knew that what was being said about that alleged 2 a.m. phone call was not true, shows that it is not me who is lacking in good character, it is Dr Hughes. So why didn’t Mr Pinnock just provide Mr James with a copy of my so-called ‘admission’? Because he couldn’t: because NO such ‘admission’ was ever made. To discover why it was so important for Dr Hughes and Mr Pinnock to discredit me and to stop Mr James from investigating this matter, go to Tampering With Evidence/Chapter 2.

In simple terms, even though I chose what I believed was the most appropriate avenue to raise my concerns about the unethical way my arbitration had been conducted, i.e. through the Institute of Arbitrators Australia, that avenue was closed by the very people who had so much to lose if there was any chance of the truth actually being uncovered and exposed by the Institute.

Lies by the  TIO

On 27 February 1996, John Pinnock wrote to Laurie James President of the Institute of Arbitrators Australia (see point 4 above), attacked my credibility. The TIO deliberately misinformed Mr James that I had telephoned the arbitrator’s wife at 2 am one morning:

“Mr Smith has admitted to me in writing that last year he rang Dr Hughes’ home phone number (apparently in the middle of the night, at approximately 2.00am) and spoke to Dr Hughes’ wife, impersonating a member of the Resource Unit.” (See page 3, Arbitrator File No /49)

Absent Justice - Prologue

Who advised the TIO that I telephoned at approximately 2am? The telephone account for the evening in question (also in Arbitrator File No /49) confirms I called at 8.02 pm. It is bad enough to see the lies told regarding the actual time that I made this telephone call, but it is perhaps even worse to discover that my reason for making that call was concealed from Mr James. I phoned the arbitrator to alert him I had, that day – 28 November 1995 – received vital arbitration documents that I should have received during my arbitration and these documents definitively proved Telstra’s TF200 EXICOM arbitration defence report was manufactured to pervert the course of justice.

It was exciting to read that Telstra staff proved beer could not have stayed wet and sticky for 14 days – the time between the TF200 EXICOM leaving my premises and arriving at their laboratory. It was already evening but, in the heat of the moment, I rang the arbitrator’s home number. His wife answered and told me he was overseas and not due home for some days.

I was caught on the back foot; in my excitement, I had not considered the arbitrator would not answer the phone. I assumed the arbitrator had discussed the Parliament House rumours, concerning his use of a non-credible agreement, with his wife. I thought if she knew who was calling, she might be afraid I was ringing to accuse the arbitrator. Impulsively, I gave her another name: one I knew the arbitrator was familiar with – that of the FHCA project manager.

Later, I informed the TIO about my exciting find and that I tried to contact the arbitrator to pass on the news. I also explained I gave the arbitrator’s wife the FHCA project manager’s name, instead of my own, to prevent her from being alarmed. I asked him what he would do with this proof that Telstra had fabricated the beer in the phone story. The TIO responded flatly that my arbitration had run its course and he did not intend to involve his office in any further investigation. He said I should go to the Supreme Court of Victoria if I wished to take it further.

If I did write to the TIO, as he alleges in his letter to Laurie James, why didn’t the TIO produce my letter? The reason is, of course, that I never wrote any such letter. Just as deceitful as claiming I wrote such a letter, is the fact that the TIO’s letter to Laurie James was copied to the arbitrator.

Surely the arbitrator would have discussed my telephone call with his wife and been told by her that I had telephoned at 8.02 pm and I was, at all times, courteous and respectful.

Researching the following 24 June and 25 June 1997 Senate Hansards has caused me much grief. These two Hansards show many senators found heavily against Telstra employees for their unethical practices, not just towards the COT cases and our families but also against fellow Australian citizens, as the people of Australia fully owned Telstra when this rorting by Telstra employees flourished. Our website shows it was not just rank and file members within Telstra who acted unethically towards the COT cases: this conduct was sanctioned by Telstra executives – who were also on the Telstra and TIO board – as the following COT strategy shows.

On 24 June 1997 (the day before this COT Strategy was exposed), the ex-Telstra employee turned whistleblower, Lindsay White, advised a Senate estimates committee that, while he was assessing the relevance of the technical information requested by the COT claimants, two Telstra officials gave him instructions.

Mr White: “In the first induction – and I was one of the early ones, and probably the earliest in the Freehill’s [Telstra’s Lawyers] area – there were five complainants. They were Garms, Gill and Smith [me], and Dawson and Schorer. My induction briefing was that we – we being Telecom – had to stop these people to stop the floodgates being opened.”

Senator O’Chee: “What, stop them reasonably or stop them at all costs –or what?”

Mr White: “The words used to me in the early days were that we had to stop these people at all costs.” (See Front Page Part One File No/6, also pages 36 and 38 of Senate – Parliament of Australia)

Four months into my arbitration, I informed the arbitrator that Telstra was refusing to supply me with any more FOI documents because I had given sensitive FOI documents to the Australian Federal Police to assist their investigations into Telstra’s interception of my telephone conversations. I received not one single response concerning these threats – from neither the arbitrator nor the TIO.

Thus, the threats became a reality. What is so appalling about the withholding of relevant documents is that no one in the TIO office or government has ever investigated the disastrous impact this had on my overall submission to the arbitrator. Material, which could further support my claims before the arbitrator, was denied me.

On 25 June 1997, the day after the Senate committee were told we five COT cases had to be stopped at all cost from proving our claims, a number of senators discussed Telstra’s legal firm and its COT strategy, dated 20 September 1993. This strategy advises how Telstra can conceal technical information from the four COTs under Legal Professional Privilege, even though the documents were not privileged (see SENATE Hansard, page 5169). The COT strategy is available at Prologue Evidence File No/1-A.

The author of this COT strategy is the same lawyer with whom I was forced to register each of my phone complaints, in writing, before Telstra would address these problems. NONE of the fault information I provided to this lawyer, concerning ongoing telephone problems and Telstra’s response to those problems, were ever released to me during my arbitration.

To add further insult to these injustices, on 12 September 1994, as part of the arbitration process, I was obliged to meet with Telstra’s consulting forensic psychologist in Portland’s Richmond Hotel so he could analyse my mental health as part of Telstra’s defence of the arbitration process. One of the most important issues I raised with him was the trauma I suffered at the hands of the legal firm that hired him. He appeared to listen carefully to what I described and he said being directed to register phone complaints, in writing, with Telstra’s lawyer, before they would be investigated, was most disturbing. I provided confirmation that losing six incoming calls in a single day was common. Writing to a lawyer, explaining lost calls, was more than just soul destroying, it just about broke my willpower to carry on. He said he was shocked Telstra and its legal firm forced this on me and agreed this would certainly affect my mental state over the many months I had to do this.

Absent Justice - Forensic Psychologist Meeting

However, when Telstra’s lawyers, which the government assured us would not be used in our arbitrations (see Prologue Evidence File No/2), provided this clinical psychologist’s witness statement to the arbitrator, it was only signed by a lawyer from this legal firm. It bore no signature of the psychologist and didn’t contain his concerns regarding me having to first contact this legal firm, in writing, before Telstra would address my telephone problems. The witness statement includes comments such as, “In my professional opinion his preoccupation has become a clinical obsession.”

The most alarming points about this unsigned witness statement are:

  1. Before the psychologist met with me, Telstra’s lawyers provided him with a copy of the Cape Bridgewater Bell Canada International (BCI) addendum report stating 13,590 test calls were carried out, over a five-day period, into the Cape Bridgewater RCM exchange, using the TEKELEC CCS7 monitoring equipment. This report stated the test calls had a 99 per cent success rate.
  2. Neither the psychologist nor the arbitrator were told tests through the Cape Bridgewater exchange were impracticable: the nearest exchange that could accommodate the TELELEC CCS7 equipment was the Warrnambool exchange, 120 kilometres from Cape Bridgewater (see Telstra’s Falsified BCI Report ‘masked identities’)

Had the psychologist known the 13,590 tests calls, allegedly carried out by BCI, could not terminate through the TEKELEC CCS7 monitoring system at Cape Bridgewater, his assessment of my mental state would have been somewhat different. He, too, might have been distressed if he had been aware Telstra misled and deceived him prior to him assessing my mental state.

In the same Senate Hansard, dated 24 June 1997, in which Lindsay White says he was told to “stop these people at all costs”, similar injustices COT case Sandra Wolfe experienced during a Mediation Process in 1997 are discussed. These injustices included her having a warrant executed against her by Telstra employees under the Queensland Mental Health Act (see pages 82 to 88, Introduction File No/9). Had Sandra not acted in the manner she did, it is possible she could have been lost in an institution for the insane. Addressing Telstra, Senator Schacht says:

“No, when the warrant was issued and the names of these employees were on it, you are telling us that it was coincidental that they were Telstra employees.” (p87)

Is this warrant issued under the Queensland Mental Health Act, against Sandra Wolfe, akin to the false information provided by Telstra to the clinical psychologist before he assessed my mental health? In my case, the consultation by this psychologist was not conducted in a private surrounding, but in the Richmond Henty Hotel’s saloon bar!

When Telstra’s lawyers (whom the government assured us COT cases would not be used in our arbitration) provided the witness statement prepared by this clinical psychologist, it was only signed by a lawyer Wayne Maurice Condon, from this legal firm Freehill Hollingdale & Page on 6 December 1994, and bore no signature, of the psychologist, Ian Jobin.

This never-ending saga

Absent Justice - My Story Never Ending Saga

As I continue to write about all that really transpired, not just during my own government-endorsed arbitration but also during the other COT arbitrations, I am left floundering; I still struggle to understand why our arbitrations were conducted outside the agreed ambit of the arbitration procedures (see TIO Evidence File No 4-A to 4-B.  Every time I go back to finalise various parts of this combined COT story, and I re-read all the complex details that make up this whole, terrible situation that the Telecommunication Industry Ombudsman, the Arbitrator and his Resource Unit allowed us to struggle through, my anxiety levels instantly begin to rise alarmingly.

The situation gets worse, though, because I also find I am just struck with sheer unbelief that this happened in a democratic country like Australia; I seem to be unable to find the right words to finish off this dreadful saga. It seems that, no matter what I do, I just can’t find a way to adequately explain this disaster that we have all struggled with for so many years. One part of the problem is, of course, that none of the COT cases – all honest Australian citizens – should ever have been forced into a situation that would eventually leave us all dealing with so many still-unaddressed crimes: crimes that were committed against us while we were officially part of a government-endorsed, legal, arbitration process. There are two parts to this problem for the COTs. Firstly, there are those who are now identified below, who worked with Telstra to carry out those still-unaddressed crimes. And secondly, there is Telstra, an organisation with so much power that it could stop any authority (including government authorities) from investigating those crimes, as the many stories are shown in the above menu bar so clearly show.

Absent Justice - Our Story

This is the story of a group of ordinary small-business people fighting one of the largest companies in the country. For years, the then-government-owned Telstra (in the early days called Telecom) refused to address the many phone problems affecting the ability of the COT Four to run their businesses, while telling them ‘No fault found.’

Our story shows:

Absent Justice - Our Story

Together, these travesties spell a breakdown of justice, way out of proportion to the issue we began with: people asking that their phone services be guaranteed to work to a reasonable standard, so they can reliably conduct their businesses.

What sort of faults are we are talking about? Customers, or potential customers, trying to ring in, only to get a deadline, or for the phone to ‘ring’ without being picked up, as if no one was there, or to be met by a recorded announcement saying the number is not connected at all. And when calls did connect, the connection dropped out, as might happen today on a mobile, but we are referring to landlines. Faxes also went missing in the network, or only blank sheets arrived.

Each COT member assumed, as most telephone users would, that Telstra’s skilled technicians would easily find and fix their phone faults; however, ‘No fault found’ was the constant refrain and the problems continued unabated throughout the course of our arbitrations and for years afterwards, with disastrous effects on our businesses. This seemed incomprehensible: everyone had a phone and the system is supposed to work for everyone. What was going on?

And why did it seem that everyone was protecting Telstra and turning a blind eye to unlawful behaviour?

Someone within Telstra must have authorised this criminal conduct.

Despite being promised the documents we needed if we agreed to arbitration, our FOI-requested documents have never been made available, and we still do not have those documents to this day.

In my case, the Schedules of Material received by the arbitration process does not list 42 separate sets of correspondence, which were faxed to the arbitrator’s office (some with attachments). Front Page Part One File No/1 shows the arbitrator’s secretary advised Tony Watson (of Telstra’s arbitration defence unit) that, on 23 May 1994, six of my claim documents were not received at the arbitrator’s fax machine. It is clear from my Telstra account that I was charged for those six faxes leaving my office, yet, when this matter was exposed, no one from the arbitrator’s office nor the TIO’s office allowed me to amend my claim so that these proven “non received” claim documents could be valued by the arbitrator in support of my claim.

These collusive acts destroyed normal life for me and my partner, Cathy. A secret, concealed report, prepared by the government concerning my valid complaints but withheld from the arbitrator, found at least one local Portland technician concealed, from other Cape Bridgewater customers and me, the true extent of our phone problems. Point 76 in this report states,

“One disturbing matter in relation to Mr Smith’s complaints of NRR [not receiving ring] is that information on other people in the Cape Bridgewater area experiencing the problem has been misrepresented from local Telecom regional manager to a more senior manager.” (See Manipulating the Regulator).

The fact that this person misled senior Telstra management concerning the truth of the real situation at Cape Bridgewater is serious enough. However, even worse is that when Telstra presented its arbitration defence of my claims to the arbitrator concerning the Cape Bridgewater problems, the sworn statements given under oath on these NRR issues were based on the incorrect information this Telstra employee gave management. Therefore, the arbitrator relied on false advice supplied by Telstra management, who were perhaps unaware they were submitting incorrect information (under oath) concerning the Cape Bridgewater telephone exchange.

That this Telstra employee’s disgraceful conduct was concealed by the government communications regulator during an arbitration process is serious enough, but had the arbitrator and I been advised on what the regulator had uncovered, we could have ensured this local Telstra employee’s witness statement was taken out of the arbitration process altogether. I have since proven this same Telstra employee person lied under oath in his witness statement, about another totally different matter altogether, yet the wording in the arbitrator’s award confirms he accepted this person’s statements.

Many bureaucrats who commented on our fight for justice branded the members of COT as frivolous and vexatious litigants, but they missed a number of important facts. Firstly, most bureaucrats have never attempted to run a small business of any sort, particularly a business where the loss of four or five telephone calls a day is enough to completely destroy that business (especially if those lost calls continue to occur). The arbitrator handed down his findings based on Telstra’s claim, sworn to under oath, that the complaints raised during arbitration were fully rectified. This was not the case.

Those same bureaucrats also fail to understand that my ongoing telephone problems were not investigated or fixed, even though the Australian government promised me that ALL the problems would be fixed as part of the arbitration process. The matters discussed on this website absentjustice.com are said according to my interpretation of the  Public Interest Disclosure Act 2013

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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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“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

“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

“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

“…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

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

Hon David Hawker

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

– Edmund Burke