Chapter Five - Who benefited from exonerating FHCA, DMR and Special Counsel?

Although the 19th April, 1994 Arbitration Agreement issue was addressed previously, it is important to link it to the issues raised by Amanda Davis, when Caroline Friend, secretary to Dr Hughes, faxed a copy of the FTAP Agreement to lawyers, Mr Goldberg and William Hunt. Mr Hunt was seeking a legal opinion on the agreement before Graham Schorer and Alan Smith were to sign it on 21st April 1994.  The following three clauses are included on page 12 of this version of the agreement received via Caroline Friend:-

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.

In the agreement presented to the COT claimants for signing two days later, on 21st April 1994, clauses 25 and 26 were removed and only some of the wording was added to clause 24

The final version of Clause 24 reads: “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…”

Clause 24 now had a different meaning to that presented by the original three separate clauses and it freed Peter Bartlett and Minter Ellison from any risk of being sued for misconduct in their role as Legal Advisors to the process and thereby provided no incentive for them to ensure the COT claimants were involved in a fair and just process.

The altered clause 24 also has the original $250,000 liability cap against FHCA and DMR removed from the Arbitration Agreement faxed to Mr Goldberg and William Hunt on 19th April 1994.

It is important to consider:

• Graham Schorer sought a legal opinion from Mr Goldberg, through Mr Hunt, regarding what the COT claimants were led to believe was the final version of the Arbitration Agreement. Changes were later made to that agreement: i.e., the removal of clauses 25 and 26 and alterations to clause 24.  This meant the legal opinion given to Graham and Alan was provided on a document that was later secretly altered, apparently by the Legal Counsel who would most benefit from the alterations.
• On 19th April 1994, when Mr Goldberg and Mr Hunt were assessing the not-yet-altered version of the agreement, they could not have known alterations would be made AFTER they had completed their assessment, neither did they know that another clause, 10.2.2, had already been changed by the removal of the words “each of the Claimants’ claims”. Neither Graham Schorer nor Alan Smith knew of this change either.
• On 21st April 1994, the day Graham Schorer and Alan Smith signed the FTAP in the Special Counsel’s office, no reference was made to the alterations by Mr Bartlett or anyone else. The claimants were told they had to sign the agreement before the close of business that day because Mr Bartlett’s instructions were that the TIO would not administer the already-signed Fast Track Settlement Proposal – the earlier commercial agreement.

Questions:

• Would Mr Hunt have advised Graham and Alan to sign the altered agreement, had he received that document instead of the one faxed by Caroline Friend?
• Would Dr Hughes have advised Graham and Alan to sign the altered agreement, had he been aware it was not the agreement he and Caroline Friend, believed he was to arbitrate under?

20th February 1996:  Telstra provides Dr Hughes, with a list of the names of the 48 telephone exchanges that routed through the North Melbourne exchange, which serviced Golden Messenger. (GS-CAV Exhibit 216 to 257 - See GS-CAV 237)

11th March 1996:  At point 11, on page 15 of Telstra’s Briefing Document B003 report (Appendix E) is noted:-

“On 11 March 1996 the Claimants’ complained of receiving 3 different recorded voice announcements (RVA’s) when calling mobile 019 925xxx and 041xxxxx. The Claimants’ advised of the exchange code heard at the end of the RVA’s. The exchange code given appeared to be a Mobile Network exchange. Clear codes indicate that the fault existed in privately maintained equipment. Ref: J05314 to J05315 & J05137 to J05141” (GS-CAV Exhibit 216 to 257 - See GS-CAV 238)  

18th March 1996:  Oren Zohar, from FHCA (the TIO-appointed arbitration resource unit), sends a fax to Dr Hughes stating:-

“Telstra has proposed that the meetings be held on Monday, Wednesday and Friday week commencing 25 March 1996. Graham Schorer has yet to confirm whether these dates are acceptable and he has advised that he will contact me once he has spoken with George Close and his solicitor, Bill Hunt.” (GS-CAV Exhibit 216 to 257 - See GS-CAV 239)

21st March 1996:  Dr Hughes responds to Oren Zohar’s fax, stating:

I am prepared to be present at the proposed informal meeting

I do not consider the meeting should be transcribed. (GS-CAV Exhibit 216 to 257 - See GS-CAV 239)

• Why was Dr Hughes concerned about a simple directions hearing being transcribed?
• Was Dr Hughes worried because Alan Smith was raising the arbitration issues with Laurie James, the President of the Institute of Arbitrators Australia?

On 18th and 19th January 1996, Alan Smith raised a number of complaints with Laurie James concerning the unethical way in which his arbitration was conducted (see Dr Hughes Target file for this date).

In the Alan Smith CAV – Dr Hughes Target file for the date of 16th February 1996 it is shown that Dr Hughes’ letter of 16th February 1996 misled Laurie James concerning Alan’s arbitration.  There is also no reference in this letter from Dr Hughes admitting he had advised the TIO, on 12th May 1995 the Arbitration Agreement was not credible (GS-CAV Exhibit 216 to 257 - see also GS-CAV 239-D).

The fact that Dr Hughes was seeking advice from Mr Pinnock, on what he should or should not disclose to Laurie James, (about the conduct of the COT arbitrations) during the time he was arbitrating on Graham arbitration raises more questions about Hughes’ independence.

19th March 1996:  William Hunt’s file note states:-

“At or about the same time Bell Canada had Telstra doing reports on its service in relation to Golden’s receipt of same.  At or about the same time similar tests were being done on the Telstra equipment  relating to Smith and the results of thoses [sic] cover the demonstration that they could not have been done. …”

“As to the second Bell Canada test Schorer has on disk the [sic] Telstra abandoned certain tests as to part from certain exchanges. One can only assume that the reports were unsatisfactory to Telstra or supportive of Schorer.”(GS-CAV Exhibit 216 to 257 - See GS-CAV 240)

25th March 1996:  George Close, Graham’s Technical Advisor informs Graham:-

“You are aware, I have been assisting a number of CoT members in preparing their technical submission that demonstrates reasonable causal link between telephone service difficulty and faults experienced to call losses to be used in support of their claims being processed under arbitration. …”

“Telstra’s Use Of Final Testing Results As Evidence:

Telstra has only employed successful final test call run results as a defence in response to all CoT claim submissions made under Arbitration.

These final tests comprise over 50% of the Telstra defence evidence to establish the Integrity of Telstra equipment, bearers, network performance and the degree of congestion. …”

“(b)Prior to performing final testing, a series of pre-dial test are carried out and subject to the resulting grade of service experienced, a decision is made to either run the final tests, fix the fault(s) or block out the offending service (for future fixing).”

“Thus by Telstra using only final test runs as defence evidence attesting to be proof of service levels provided in response to a complaint made without including the pre-dialled test results places Telstra in a classic win-win situation as the final test runs by design are meant to produce a successful result once the complaint has been fixed. …”

“In essence, the use of Telstra’s final test results should be totally disregarded as evidence unless pre-dial information, tests and faxes accompany the final test results attested under statutory declaration.” (GS-CAV Exhibit 216 to 257 - See GS-CAV 241)

It’s interesting to note that in the AUSTEL COT Case Report, at point 5.48, is stated:-

“Telecom’s approach to the required testing regime was also less than positive. AUSTEL had required the testing to occur in business hours. Telecom maintained that it interpreted this requirement according to the nature of the business and, had it done so in good fault, it would have been acceptable. That was not, however, the outcome. In one case (Mr Schorer of Golden Messenger) only 15% of the test calls related to the complainant’s business hours, an approach scarcely consistent with Telecom’s advice that it wanted to establish the ‘fundamental integrity’ of the approach and that it wanted the results to be ‘beyond’ reproach.”

27th March 1996:  Mr Pinnock assists Dr Hughes in his letter to Laurie James, President of the Institute of Arbitrator (Australia).  Mr Pinnock also attacks Alan’s credibility by knowingly misinforming Mr James regarding Alan ringing Dr Hughes’ wife one morning, noting:-

“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.” (AS-CAV Exhibit 181 to 233 - See AS-CAV 209)

Who advised Mr Pinnock that Alan telephoned at approximately 2.00 am?  The telephone account for the evening in question confirms Alan called at 8:02 pm (AS-CAV Exhibit 181 to 233 - See AS-CAV 210).

Questions:

• Why did Mr Pinnock not send Laurie James a copy of the alleged letter from Alan to him admitting Alan telephoned the arbitrator’s wife at 2.00 am in the morning?
• Did Mr Pinnock deceive Mr James (because this letter never existed) because he and Dr Hughes did not want any investigation by the Institute of Arbitrators into issues that should have been addressed (but were not) during Alan’s arbitration?

28th March 1996:  Mr Pinnock writes to David Hawker MP in response to Alan’s allegations to Mr Hawker, that the incorrect billing issues he raised in his claim were not investigated, addressed or fixed during his arbitration. Mr Pinnock states:-

“It is incorrect for Mr Smith to assert that the TIO has avoided dealing with over-charging practices. My office refers questions of general charging practices to AUSTEL and deals with particular problems itself. Mr Smith’s allegations of over-charging for his service formed part of the claim submitted to the Arbitrator. Consequently, this matter was dealt with in his arbitration.” (AS-CAV Exhibit 181 to 233 - See AS-CAV 211)

Of course, the matter was not dealt with in Alan’s arbitration and AUSTEL advised Mr Pinnock so, on 3rd October 1995 by giving the TIO a copy of AUSTEL’s letter to Telstra, which stated the billing faults Alan raised in his claim were NOT addressed (AS-CAV Exhibit 181 to 233 - See AS-CAV 201).  Mr Rundell of FHCA also admitted, in writing, to John Pinnock that he asked DMR and Lanes, (the Technical Resource Unit), NOT to investigate or address the billing documents Alan Smith submitted in his claim (AS 104).  Mr Pinnock has not behaved independently or impartially in Alan’s matters.  Knowingly lying to David Hawker MP, Alan’s local Federal Member of Parliament, is beyond contempt.

Telstra disconnected Alan’s Gold Phone in December 1995, even though they knew that he was refusing to pay only the refuted faulty part of this account that originated in the exchange at Cape Bridgewater.  Alan arranged for Telstra to disconnect his 008/1800 number in December 1997, because of the endless billing and short duration calls generated on that line which apparently could not be fixed.

Brief Billing Summary

Alan jumps 18 months in this particular billing summary to show it took from Mr Pinnock’s letter to Mr Hawker of 28th March 1996 until October 1997 to convince Mr Hawker to investigate the continuing billing problems, which were twofold.

• The lines often locked-up for periods unnoticed. It was quite common for Cathy and Alan, after terminating a call, to lift the receiver only to find the line still open.
• This billing fault also disallowed intended calls to receive an engaged signal.

27th May 1996:  Mr Pinnock writes to Alan noting:-

“If you have complaints about the conduct of your arbitration procedure, I suggest you seek legal advice on the availability of review or an appeal. …”

“In your letter of 3 May 1996, you request that I ask Telstra why they chose not to defend allegations raised in your claim regarding your 008 service. As this matter was raised in your claim, it would have been considered by the Arbitrator, regardless of Telstra’s failure to respond. …”

“I advise that any further request by you for a review or investigation of (or comment on) the substantive issues in your completed arbitration will not be answered.” (AS-CAV Exhibit 181 to 233 - See AS-CAV 215)

As with AS-CAV Exhibit 181 to 233 - See AS-CAV 213, Telstra waited until five months after Dr Hughes deliberated on Alan’s claim before attempting to address the 008 billing arbitration issues.

25th June 1996:  Alan writes to Mr Pinnock noting:-

“Your statement to Mr Laurie James, President of the Institute of Arbitrators, regarding a telephone call to Dr Hughes. ..”.

“To date I have had no response from you, personally, as to why you chose to tell Mr James that I phoned Dr Hughes’ residence at 2.00am on 29th November 1995 and that, in making this alleged call, I behaved unethically.” (AS-CAV Exhibit 181 to 233 - See AS-CAV 216)

When Alan later received a copy of this letter back from the TIO’s office, a handwritten note had been added, stating:-

“John, we are still waiting on a response from Gordon [Hughes] on this.”

Although Mr Pinnock apologised, in a roundabout way, for writing to Laurie James in this manner, Alan has never received any reason as to why Mr Pinnock was intent in blackening Alan’s name as he did.

It would be reasonable to conclude that the Institute of Arbitrators, would believe an Ombudsman, (the TIO) over Alan, who was making a number of allegations against the conduct of his arbitration.

Why isn’t anyone listening to Graham and Alan?

26th June 1996:  Alan pens another letter to Mr Pinnock, in disgust:-

“I find it very sad to be in possession of so many FOI documents which support my allegations that many, many copies of internal correspondence I forwarded to Dr Hughes during the FTAP was never seen by the Resource Unit or Telstra.”

“It is equally sad that copies of Telstra letters, which were also part of the FTAP, were not forwarded to me.” (AS-CAV Exhibit 181 to 233 - See AS-CAV 217)

When this letter was later returned from the TIO, it also had a handwritten note stating:

“These are quite serious allegations. We need to respond to specific letters Smith says weren’t forwarded or received and provide answers on each.”

Exhibit AS 64 is a letter dated 25th March 1994 from Philippa Smith to Mr Blount.  This is important because, in the third paragraph on page three, Ms Smith confirms Mr Bartlett and Warwick Smith knew Telstra were holding up the settlement/arbitration process at that stage.  Even after Graham and Alan had signed the settlement (FTSP) agreement, when Alan approached Warwick Smith regarding FOI documents Telstra was not providing, he advised Alan that, as long as he submitted the documents into arbitration, this would help facilitate the process and assist the arbitrator.

It is now obvious many of the documents that Dr Hughes, Graham and Alan should have seen, may well have been vetted and discarded by FHCA.

11th July 1996:  Sue Harlow from AUSTEL writes to Senator Richard Alston, Minister for Communications. She notes:-

“I am pleased to provide AUSTEL’s sixth status report on Telstra’s progress in implementing the recommendations of AUSTEL’s April 1994 The COT Cases Report. …”

Also included in AUSTEL’s report is a report by the Telecommunication Industry Ombudsman (TIO) on the Status and Progress of the Fast Track, Special and Standard Arbitration Procedures. “The TIO is critical of Telstra’s behaviour and attitude in relation to these arbitrations.”

Sue Harlow, Deputy TIO (during Alan’s arbitration), left a note for Warwick Smith on 16th May 1994 saying:-

“Attached is a fax received from Alan Smith regahttps://www.absentjustice.com/wp-admin/edit.php?post_type=pagerding access to FOI documents at Telecom.”

“Smith is alleging that documents are not in chronological order and blanking done for earlier FOI inspections has made the collection of appropriate documentation uncertain and diminished the opportunity for him to satisfactorily present his case.”

“Mr Smith has demanded a TIO member be present at today’s examination of papers by him at Telecom. …”

“He left an example of this with us…” (AS-CAV Exhibit 48-A to 91 - See AS-CAV 78)

No one came from the TIO’s office the next day to assist me in inspecting the documents.

On page 12 of AUSTEL’s report, under the heading Conduct of the Arbitrations, is:

“The TIO believes some comment on the behaviour and attitude of Telstra in the conduct of these Arbitrations is warranted. …”

“The TIO believes that Telstra has, in all claims, responded in an overly legalistic manner. It has shown a tendency to deny liability under every potential clause of action on the basis of perceived statutory and contractual immunities. It has provided large and detailed defences, often out of proportion to the size or complexities of claims. It has lodged lengthy and detailed request for further and better particulars in most arbitrations. In short, while the arbitration procedure has sought to relax the legal burdens, Telstra’s conduct has certainly not. …”

“There have also been considerable delays in the provision of claim and defence materials and further information from both claimants and Telstra. Telstra has taken excessive time in the provision of material requested under FOI.” (GS-CAV Exhibit 216 to 257 - See GS-CAV 242)

22nd July 1996:  Dr Hughes writes to William Hunt, noting:-

“I have considered the submission of the parties in relation to the request by the claimant for an adjournment of this arbitration until January 1997.”

“The essence of the claimant’s request is that: …

• Telstra has not been co-operative to date in responding to FOI requests but (as I understand how the argument is put) further information might be usefully produced it Telstra is granted an adequate period of time to produce it.”

“Telstra has responded by asserting:

• the arbitration agreement provides for the completion of steps within agreed time frames;
• the history of this arbitration demonstrates that Telstra has taken all reasonable steps to provide the claimant with relevant information; …”

“After considering the matters raised by both parties, I have come to the following conclusion: …

• it is not, however, essential that all relevant information be available to the claimant at the time the Statement of Claim is submitted; …
• I do not believe the claimant would be prejudiced by submitting a claim based on information presently available to him;” (GS-CAV Exhibit 216 to 257 - See GS-CAV 243)

Please note: the FTAP agreement, at clause 10.2.2, states:-

“The Arbitrator will make a finding on reasonable grounds as to the causal link between the alleged service difficulties, problems and faults in the provision to the Claimant’s telecommunication services and the losses claimed.”

As mentioned previously, on 20th February 1996, Telstra provided Dr Hughes with a comprehensive list of the 48 separate exchanges that were routed through to the North Melbourne telephone exchange servicing Golden Messenger

If Telstra wouldn’t provide Graham Schorer with the CENTOC-TRAXE congestion data for those 48 exchange routes, how could Dr Hughes expect Graham to be able to prove call losses associated with those 48 exchanges? For example, if 15 of the 48 exchanges suffered 14 per cent congestion during peak hours (en-route to the North Melbourne exchange) and 18 of the remaining 33 exchanges suffered eight per cent congestion in peak hours, how could Graham differentiate between a reasonable causal link for the lost calls without the CENTOC-TRAXE data for all 48 exchanges?

30th July 1996:  Mr Pinnock drafts a letter intended for Alan (AS-CAV Exhibit 181 to 233 - See AS-CAV 219).  Alan did not see a copy of this letter until 2001/2.  The handwritten list in the top right corner of this letter included dates that coincided with a number of arbitration letters that were withheld from both Dr Hughes and Alan during his arbitration AS 129).

COMMENTARY:

1. The letters referred to are attached at Exhibit AS 127 to Exhibit AS 129.
2. The handwriting exhibit (AS-CAV Exhibit 181 to 233 - See AS-CAV 219) looks to be the same as Ms Di Mattina’s handwritten note referring to “opening a can of worms”, on the TIO document (AS-CAV Exhibit 181 to 233 - See AS-CAV 184).
3. Alan only received these letters under the TIO Privacy Policy Act, late in 2001 and early in 2002.

Ms Sussan Hodgkinson’s Memorandum to Dr Hughes

2nd August 1996:  In this memo, Ms Hodgkinson knowingly misinforms Dr Hughes when she states:-

“I refer to your letter dated 31 July 1996 (received 1 August 1996) concerning Mr Smith’s letter dated 25 June 1996. I have not received a copy of Mr Smiths [sic] letter however I have reviewed Matt Deeble’s summary and provide the following information concerning Mr Smith’s allegations: …”

“At the time of the letter from Austel, Mr Smith’s telephone problems were being addressed in the Arbitration. Due to a number of factors including confidentiality, it was felt not appropriate to answer Austel’s comments in detail, in particular the issue was under consideration in the Arbitration. As agreed the Resource Unit did not response to the AUSTEL letter.” (AS-CAV Exhibit 181 to 233 - See AS-CAV 220)

One of the documents, dated 16th December 1994 in this memorandum was addressed to Dr Hughes and had three AUSTEL and Telstra billing documents attached (AS-CAV Exhibit 128 to 180 - See  AS-CAV 129).

The Arbitration Agreement’s clause 6 is clear regarding the supply of documents to the defence and claimants.  “A copy of all documents and correspondence forwarded by a party to the Arbitrator shall be forwarded by the Arbitrator to the Special Counsel and the other party.” (AS-CAV Exhibit 128 to 180 - See AS-CAV 130)

Mr Deeble, who Ms Hodgkinson refers to, was a lawyer seconded from Minter Ellison to the TIO’s office.  Why didn’t Mr Deeble provide Ms Hodgkinson with a copy of Alan Smith’s letter to Mr Pinnock on 25th June 1996?  Also, when Mr Deeble received a copy of Ms Hodgkinson’s letter of 2nd August 1996 why didn’t he immediately advise the TIO and Dr Hughes that Ms Hodgkinson was incorrect when she wrote only one AUSTEL letter was withheld from Dr Hughes?  Alan Smith provided examples of numerous letters sent by Telstra to Dr Hughes that were withheld during Alan’s arbitration.  The evidence included handwritten notes by John Pinnock regarding how serious this withholding of documents from Graham and William Hunt was, during Graham’s arbitration.  This evidence was not released until 2001 when Mr Pinnock provided documented proof to Alan confirming how seriously the TIO saw these issues.

16th August 1996:  Mr Pinnock writes to Alan re his concerns that Mr Paul Howell, author of the DMR and Lane Technical Report, didn’t sign off on the report.

“I note that the Arbitrator was not obliged to forward a copy of this covering letter to you, as it did not, strictly speaking, form part of the Technical Evaluation Report.” (AS-CAV Exhibit 181 to 233 - See AS-CAV 221)

Alan does not believe Paul Howell signed this letter on 30th April 1995.

Exhibit (AS-CAV Exhibit 181 to 233 - See AS-CAV 222), is a copy of a Statutory Declaration Alan provided Senator Helen Coonan’s office 23rd February 2006.  Alan states:-

“I collapsed with a suspected heart attack and was rushed to hospital by ambulance. On my return, five days later, Mr Paul Howell of DMR Canada telephoned me at home. I had not spoken to Mr Howell before, but he told me he had heard that I had been in hospital and was phoning to wish me well. Mr Howell then went on to tell me that my arbitration was the worse process he had ever been associated with and that, had it been conducted in North America, it would never have been allowed to continue under such an atrocious administration. I told him I appreciated his concern, but was disappointed with his technical report and asked him why he had not signed it off. He relied in words to the effect that he hadn’t signed the report.”

Question:

If Paul Howell was telling Alan the truth – that he did not sign off his report – then who wrote the 30th April 1995 letter and forged Mr Howell’s signature?  The 30th April 1995 letter was attached to the 16th August 1996 letter provided to Alan by Mr Pinnock (AS-CAV Exhibit 181 to 233 - See AS-CAV 223).

15th October 1996:  Dr Hughes writes to William Hunt, noting:-

“I agree with Telstra that it is important for this arbitration to be brought to a conclusion. Whilst I express no view as to the adequacy of otherwise of the claim documentation, Telstra is accurate in its assertion that any lack of particularity in the claim documentation may be to the disadvantage of the claimant. …

“On the question of the production of further particulars by the claimant as requested by Telstra, and the production of further documentation by Telstra as foreshadowed by the claimant, I find it unnecessary to express any view at this stage. It should be emphasised that the Arbitration Agreement does not provide for discovery but I do have the power under 7.6 to require either party to produce further documentary information.” (GS-CAV Exhibit 216 to 257 - See GS-CAV 245)

Telstra’s Minutes of 17th February 1994 Arbitration Hearing confirm after Mr Schorer stated, “that he needed documents from Telecom to prepare his case and without this material, he could not go into arbitration”, Dr Hughes advised Mr Schorer (in front of Peter Bartlett, TIO legal counsel) that:-

• the procedure is put on hold until all the documents are exchanged in accordance with the FOI procedure;
• the arbitration procedure commences and then the arbitrator gives appropriate directions for the production of documents.

These Minutes then go onto state:

“Mr Hughes indicated that one party can ask for documents once the arbitration has commenced. Mr Hughes advocated this course of action as more effective and that as arbitrator he would not make a determination on incomplete information.”

It is most relevant that we compare Dr Hughes’ statement to William Hunt:-

“I should emphasise that the Arbitration Agreement does not provide for discovery,” (GS-CAV Exhibit 216 to 257 - See GS-CAV 245)

with his previous statement made to Warwick Smith on 12th May, 1995:-

“we did not allow sufficient time in the Arbitration Agreement for inevitable delays associated with the production of documents, obtaining further particulars – request for further particulars are, I think, unavoidable – although the emphasis in the arbitration process is upon a quick resolution of the dispute,” – and – “It is my view that if the process is to remain credible, it is necessary to contemplate a time frame for completion which is longer than presently contained in the Arbitration Agreement.”  

Surely, by now, Dr Hughes would have realised that he should have refused to continue with an Arbitration Agreement that was not credible because it did not allow enough time for discovery.

28th October 1996:  William Hunt responds to Hughes’ letters of 15th October and 22nd July 1996, noting:-

“In your letter of 22nd July 1996 you stated:–

‘It is not however essential that all relevant information be available to the claimant at the time the statement of claim is submitted. …”

“‘I do not believe the claimant would be prejudiced by submitting a claim based on information presently available to him.’ …”

“As you are aware, the claimant has been making, for a considerable time, requests to Telstra pursuant to the Freedom of Information Act to supply information about its various service faults and difficulties upon which his claim is based.”

“According to our instructions those requests for information have either not been complied with, or inadequately complied with.”

“We note further that in your letter dated 15th October 1996 you state that you find it unnecessary to express a view on the question of the production of further documentation by Telstra at this stage. …”

“The claimant has ascertained that Telstra holds on four discs an index of all information held by it relating to service difficulties and faults and technical matters. He has made a request for the discs pursuant to the Freedom of Information Act but they have not been forthcoming. The information indexed on the discs would, the claimant believes, cover the matters which form the technical basis of his claim. …”

“According to our instructions it is believed the four discs would have been easily located within the Telstra organization, and there is no valid reason why they should not be made available promptly.” (GS-CAV Exhibit 216 to 257 - See GS-CAV 246)

1st November 1996:  Dr Hughes writes to William Hunt, noting:-

As indicated previously, I may well exercise my discretion under rule 7.6 to require the production of further documentation from Telstra. I am most reluctant to do so, however, until I have at least received Telstra’s defence. This will enable me to assess the parameters of the claim and form my own view (perhaps after receiving submissions from the parties) as to what further documentation, if any, should be provided.” (GS-CAV Exhibit 216 to 257 - See GS-CAV 247)

Please note the phrase used by Dr Hughes:-

“This will enable me to assess the parameters of the claim and form my own view”,

should be compared with the phrase he used in his letter to Warwick Smith, 12th May 1995 when he states:

“In summary, it is my view that is the process is to remain credible, it is necessary to contemplate an time frame for completion which is longer than presently contained in the Arbitration Agreement.”

Dr Hughes should have disclosed his view regarding the inadequate timeframes in the Arbitration Agreement to all parties associated with the arbitration.  This is the very reason Graham was still unable to submit a complete claim.

1st November 1996:  John Pinnock puts William Hunt on notice, stating:-

“I understand that you have responded to the Arbitrator in relation to his directions of 15 October 1996. I understand that a copy of this correspondence was provided to Telstra but not to this office or to Mr Peter Bartlett, the Special Counsel to the Administrator.”

“I advise that clause 6 of the Fast Track Arbitration Rules provides that a ‘copy of all documents are correspondence forwarded…by a party to the Arbitrator shall be forwarded to the Special Counsel’. The common practice in other arbitrations has been for a copy of documentation and correspondence to also be provided to the TIO as Administrator of the procedure.

“In future, would you please provide copies of your formal correspondence in this matter to the Arbitrator, Telstra, the TIO and the Special Counsel.” (GS-CAV Exhibit 216 to 257 - See GS-CAV 248)

27th November 1996:  John Pinnock writes to William Hunt, stating:-

“I enclose two copies of Telstra’s Defence in the above matter consisting of six sealed boxes. These documents were received by my office on 26 November 1996.

“I also enclose a copy of Telstra’s covering letter setting out the volumes contained in these boxes. Would you please advise me if you have not received all the documents set out in that letter.”

“Please note that Telstra is still to provide certain documents. They will be forwarded to you as soon as they arrive at the TIO.” (GS-CAV Exhibit 216 to 257 - See GS-CAV 249)

Please note: clause 6 of the Arbitration Agreement only states:-

“A copy of all documents and correspondence forwarded by the Arbitrator to a party or by a party to the Arbitrator shall be forwarded to the Special Counsel. A copy of all documents and correspondence forwarded by a party to the Arbitrator shall be forwarded by the Arbitrator to the Special Counsel and the other party.”

28th November 1996:  William Hunt’s file note records:-

“I rang Mr Pinnock to ask why he is writing me letters, why matters are coming to me through him. I rang about 4.15 pm and was told by the receptionist that he wasn’t available. …”

“I later spoke to Mr Pinnock who rang me back and told me that it was part and parcel of the requirements under the arbitration procedure whereby Telecom had to send up things through him and he wouldn’t be reading it all unless he was required to for some person. Ditto with Ferrier Hodgson.” (GS-CAV Exhibit 216 to 257 - See GS-CAV 250)

Why was it so important for the TIO to receive the claim and defence documents before Dr Hughes?  In Alan Smith’s arbitration, numerous claim and arbitration procedural documents disappeared en route to Dr Hughes office, before he was able to assess this material.  Were similar documents about to disappear in Graham Schorer’s arbitration as well?

In his letter of 11th July 1994 to Warwick Smith, Steve Black wrote:-

“If the resource unit forms the view that this information should be provide to the arbitrator, then Telecom would accede to the request.”

Telstra and the Resource Unit were working together and the Resource Unit had access to Telstra information before it was actually released into the arbitration process.  The Resource Unit made decisions about the relevance of the material before they directed Telstra to provide the information to the arbitrator.

Exhibit 13, in Graham Schorer’s CAV Relevant Information file, contains 14 letters between Steve Black, Warwick Smith, AUSTEL and the Commonwealth Ombudsman’s office, showing Graham had good reason to question the TIO’s office.

10th January 1997:  John Pinnock writes to Alan Smith:-

“I refer to your letter 31 December 1996 in which you seek to access to [sic] various correspondence held by the TIO concerning the fast Track Arbitration Procedure.

The arbitration of your claim was completed when an award was made in your favour more than eighteen months ago and my role as Administrator is over.

I do not propose to provide you with copies of any documents held by this office.” GS-CAV Exhibit 216 to 257 - See GS-CAV 251)

15th January 1997:  Graham submits his reply to Telstra’s defence, stating:-

“Because of the format of the Telstra defence as it is in narrative style, it is difficult to distinguish between that which is argument or proposition (as distinct from factual evidence) and that which is a formal statement of defence. In consequence the Claimants in this reply refer only to Telstra’s ‘Principal Submissions’ and to its ‘Legal Submissions’.” (Graham Schorer – CAV Relevant Information file exhibit 12)

24th January 1997:  Graham Schorer writes four startling letters (GS-CAV Exhibit 216 to 257 - See  GS-CAV 252) to the three people mentioned here.

“I enclose my correspondence to

• Mr Ted Benjamin (our Ref. 3060) re Bell Canada documents not discovered identified and supplied.
• Mr John Pinnock (our Ref. 3057 and Ref. 3059) re Arbitration costs and other related matters.
• Ms Melanie Bleazby (our Ref. 3058) re FOI requests. …”

“Based upon Telstra’s current response to my recent FOI application (already requested under Arbitration and covered within the scope of my 21 April 1994 FOI application), it would appear Telstra had introduced another new face to add to the confusion while their conduct goes from bad to worse.” (GS-CAV Exhibit 216 to 257 - See GS-CAV 252)

Dr Hughes knew some of the information Telstra did not supply to Graham related to the Bell Canada International test results, in relation to the North Melbourne telephone exchange.

Dr Hughes’ letter of 2nd May 1994 shows Telstra gave the BCI Report to Dr Hughes and he supplied it to the Resource Unit to assess as part of the arbitration procedural information.  In his award concerning Alan’s matter, Dr Hughes refers to accepting both reports into evidence during Alan Smith’s arbitration

As mentioned previously, Dr Hughes, Mr Pinnock, Mr Benjamin and Ms Di Mattina were all provided with evidence proving that, when Telstra used the BCI Cape Bridgewater Addendum Report as defence material, they already knew that the tests were fundamentally flawed.  Although the information concerning the flaws in the BCI Cape Bridgewater Report was received after Alan’s arbitration, Dr Hughes should have immediately instructed Telstra and the TIO Legal Counsel to withdraw all the BCI information from all of the arbitration procedures.

4th February 1997:  Dr Hughes writes to William Hunt, stating:-

“I have now had an opportunity to peruse the claim, defence and reply documentation.”

“A number of outstanding matters must now be addressed in order that this arbitration can proceed. Each party had foreshadowed in previous correspondence that it requires information from the other; in addition, I pointed out in my letter of 15 October 1996 that, upon receipt of the initial submissions of the respective parties, I would be in a position to make my own assessment as to whether further documentation (if any) should be produced by either party. …”

“I accordingly invite each party to advise me within seven (7) days as to whether it still requires the production of information or other material from the other party and, if so, I require a full description of that information or other material.” (GS-CAV Exhibit 216 to 257 - See GS-CAV 253)

Who’s kidding who?

4th February 1997:  John Pinnock writes to Alan Smith, stating:-

“I reject completely your assertion that Dr Hughes and David Read ‘conspired to breach the rules of the Arbitration’”.

“Similarly, I reject your assertion that there was or ever has been a conflict of interest between Mr Benjamin’s membership of the TIO Council and any role he may have had in relation to the supply of FOI documents.” (GS-CAV Exhibit 216 to 257 - See GS-CAV 254-A)

Exhibit GS-CAV Exhibit 216 to 257 - See GS-CAV 254-B shows Dr Hughes did breach the arbitration rules by corresponding with Telstra during the COT arbitrations without copying that correspondence onto the claimants.

Although Mr Pinnock rejected Mr Benjamin’s membership of the TIO Council created a conflict of interest, this is not the way Senator Schacht saw the situation (see Senate Hansard records of 26th September 1997 discussed shortly).  This conflict of interest was also evident when Mr Benjamin, on 30th November 1993 during the COT Fast Track Settlement Proposal, chose to relay various COT issues, discussed during a TIO Council Meeting he attended, back to his colleagues at Telstra’s Head Office.

12th February 1997:  Exhibit GS-CAV Exhibit 216 to 257 - See GS-CAV 255 is a 12-page letter from Telstra to Dr Hughes mirroring a similar request for the production of documents and further better particulars in Alan Smith’s arbitration.  It was the same production of documents, obtaining further particular issues, that concerned Dr Hughes when he wrote to Warwick Smith 12th May, 1995 stating:-

• “the time frames set in the original Arbitration Agreement were, with the benefit of hindsight, optimistic;
• In particular, we did not allow sufficient time in the Arbitration Agreement for inevitable delays associated with the production of documents, obtaining further particulars and the preparation of technical reports;

“In summary, it is my view that if the process is to remain credible, it is necessary to contemplate a time frame for completion which is longer than presently contained in the Arbitration Agreement.”

And here he was, still troubled about the production of documents and obtaining further particulars using the same Arbitration Agreement he condemned 15 months prior.

14th February 1997:  William Hunt responds to Dr Hughes’ letter:-

“We refer to your letter of 4th February, 1997 herein. Prior thereto on 24th January last, Mr Schorer on behalf of the Claimants herein, had sought an immediate meeting with the Administrator (Mr Pinnock) to discuss, inter alia, matters affecting the FTSP and the FTAP which prevent the Claimants from obtaining essential information from Telstra through FOI procedures. …”

“Alternatively and preferably it is requested a Directions Hearing be scheduled for that day (or later as may suit you or Telstra’s convenience) to discuss and make submissions to you on the problems created for the Claimants by the continuing lack of material being made available to the Claimants under FOI procedures.” (GS-CAV Exhibit 216 to 257 - See GS-CAV 256)

14th February 1997:  Graham Schorer’s letter to Telstra’s John Armstrong, copied to John Pinnock, Dr Hughes, Peter Bartlett, Ferrier Hodgson, Lane Telecommunications, John Wynack and William Hunt, states:-

“Further to our correspondence dated 24 January 1997 Ref.3060, it is drawn to Telstra’s attention that after 23 November 1993, Mr Ian Campbell, on behalf of Telstra, undertook to Graham Schorer to arrange the immediate supply of the documents, working papers, work orders, instructions, memos etc created by Telstra employees who were involved in supporting and/or performing the tasks devised by Bell Canada to test specific parts of the Telstra network that formed the basis of the first of the Bell Canada Reports.” (GS-CAV Exhibit 216 to 257 - See GS-CAV 257)

This letter would have made it quite clear to all those who received it that the TIO should never have allowed Telstra to submit this report to the arbitrator.  Dr Hughes and John Pinnock, who were among those receiving this letter, also received a letter dated 20th June 1995, from Alan Smith, confirming Telstra also used the BCI Cape Bridgewater Addendum Report as defence material despite knowing it was fundamentally flawed.  It remained in the COT process and then, on 14th February 1997, 44 months after Dr Hughes and John Pinnock were alerted to the flaws in the report, it is again being challenged by another COT claimant.

Once Alan Smith’s letter of 20th June 1995 reached Mr Pinnock and Dr Hughes, they should have immediately told Telstra it was illegal to use a material known to be flawed and to withdraw all the Bell Canada reports relating to the remaining COT claimants until an independent audit of the BCI reports could be conducted.  Had Mr Pinnock and Dr Hughes directed Telstra to withdraw the BCI reports, then they would have reduced some of the problems associated with the poor timeframe issues related to Graham’s discovery matters. Since neither Mr Pinnock nor Dr Hughes ordered the withdrawal of the flawed BCI reports, they both contributed to the problems with Graham’s discovery process.

18th February 1997:  Dr Hughes responds to William Hunt’s letter of 14th February 1996 noting-:

“In its response of 12 February, Telstra submitted that it had no case to answer; in the alternative, it requested the production of further specified information from your client.

In the absence of a submission by your client relating to the production of further information from Telstra, I propose to proceed with a ruling as to what documentation, if any, must now be produced by each party.”

“My determination could be along any of the following lines:

• one or both parties are to produce additional material, as specified by me. In relation to your client, this may or may not be the documentation requested by Telstra in its letter of 12 February 1997. In the case of Telstra, I would take into account past submissions by your client; or
• neither party need produce further documentation, and the Resource Unit to now proceed with its own assessment of the financial and technical issues; or
• neither party need produce further documentation, no Resource Unit involvement is required and the matter will proceed to a final award forthwith; or
• in accordance with Telstra’s submission, there is no case to answer and the claim is dismissed.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 258)

24th February 1997:  Mr Pinnock writes to Alan, noting:-

“Since the Arbitrator delivered his award, you have written many letters to me asserting, variously, that the Arbitrator, and/or the Resource Unit, erred in their duties under the Arbitration agreement.” (AS-CAV Exhibit 181 to 233 - See AS-CAV 225)

25th February 1997:  William Hunt responds to Dr Hughes’ letter of 18th February 1997, stating:

“The FTSP arose from an acceptance by Austel that the Claimants had cause for complaint against Telstra, that reasonable proof of the nature and extent of the complaint could come only from within Telstra, and that it was reasonable in Telstra’s interest for the sorting out of the dispute and the amount of compensation payable (if any) to be kept confidential. …”

“In your letter of 4th February to the parties in dispute, and to others you wrote thus:

‘I am prepared to make a ruling on this matter but would prefer the parties to reach agreement. In any event, I require submissions from each party as to what documents or other material should now be produced.’”

“Based on long running and fruitless experience in dealing with Telstra about the provision of necessary information under FOI procedures the Claimants feel it would be impossible to reach any even faintly useful agreement with Telstra about ‘what further documentation (if any) should be produced’…”

“Because of the continual lack of information being provided by Telstra (whether or not under FOI procedures or as indicated by you) the Claimants simply cannot at present usefully supply you with a list of all the documentation it requires or provide you with ‘a full description of that information or other material’.”

“The Claimants again respectfully request you re-consider your rulings contained in your letters of 4th and 18th February, and schedule a Directions Hearing for 11th March or later as you may consider appropriate to enable submissions to be made to you on the problems created for the Claimants by the continuing failure of Telstra to supply information in breach of the basis on which the FTSP and FTAP were entered into.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 259 to 323)

Continued on Consumer Affairs Victoria (CAV) Part 3

For the purpose of this report, I shall refer to myself as either Alan Smith or Alan. It is also important to point out that Part 3 of our CAV reporting is still being edited as of April 2020:- thank you

Part 3

26th February, 1997:  A 54-page transcript of a meeting held on this day is attached to the Graham Schorer Relevant Information document, at exhibit 7.  John Pinnock, Graham Schorer, William Hunt, Peter Bartlett, Lucy McCullagh (Minter Ellison) and John Armstrong (Telstra) attended the meeting, regarding a variety of issues associated with the FTSP and the FTAP.

Page 15 records Graham telling Mr Pinnock:

“Now, also at that meeting, it was disclosed for the first time, it was # # disclosed on the previous day, on 20th [20th April 1994], that Ferrier Hodgson and DMR Australia refused to accept the appointment as the Resource Unit under the FTAP, while having indemnified Telstra for amounts awarded as penalties of whatever for failure to act impartially – I don’t know the correct wording, but it was in the draft up the left column.

Please note

On 20th April 1994 Graham and Alan Smith met with Graham’s solicitor, William Hunt, to discuss the latest FTAP agreement (dated 31st March 1994) which was faxed to Mr Hunt the previous day by Caroline Friend, Dr Hughes’ secretary (see Graham Schorer’s Relevant CAV Information file exhibit 17).  Graham, Alan and Mr Hunt discussed whether the $250,000 liability cap for FHCA and DMR (Australia) was enough, considering the size of the claims, and finally agreed it was better than no amount at all.  Graham and Alan cannot recall why the Special Counsel was not named in the agreement (nor had a liability cap for conscious or deliberate negligence or wrongdoing), but they believed the Special Counsel’s role, as the Legal Advisor to the process, worked similarly to the arbitrator’s liability. See 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 the Arbitrator (but not the Administrator) shall be liable for any conscious or deliberate wrongdoing on the Arbitrator’s own part.”

Pages 21 to 24, of the 26th February 1997 transcript records Graham raising concerns regarding the impartiality of some people involved in the process, particularly the close relationship between Telstra representatives and certain members of Ferrier Hodgson Corporate Advisory (FHCA) as correspondence to the arbitrator, was passing via the TIO’s office to FHCA without being copied to the COT claimants.  On page 24, Graham explains to Mr Pinnock, “That’s correspondence between either the Resource Unit, Telstra and/or the arbitrator without the COT 4 being a recipient of that correspondence.

Mr Pinnock maintains that according to his knowledge, all the material passed through his office (at least since he was appointed as Ombudsman) was copied to the other party when it was appropriate unless human error had been involved.  Graham does not hold Mr Pinnock responsible for anything occurring before Mr Pinnock was appointed, but he is most concerned about information not being correctly passed on now (including documents requested under FOI)

Finally, Mr Pinnock admits that he knows of at least one letter Telstra addressed to Dr Hughes in August 1994 that was not copied on to Alan Smith.  He states:-

“It certainly is not cc’d to Alan, at least on the face of the document, whether Gordon Hughes subsequently sent it to Alan I couldn’t tell either, I mean that would depend on looking at his files, the point of it however, and I’ve noted this myself the Telecom letter actually seeks a direction from Gordon Hughes as to a procedure or process issue under the arbitration and if such a direction was sought and Gordon was prepared to give he certainly wouldn’t have given it without first inviting Alan Smith to comment on it.”

The discussion continues:

Graham: “Not necessarily, and what I’m also saying is if Telstra had sought a direction of the arbitrator it should have been cc’d to Alan it should be cc’d.”

Mr Pinnock: “I understand that but you’re saying that it is selective.”

Graham: “Of course I am.”

Mr Pinnock: “All right now, well what’s your example to show that it is selective as opposed to an oversight?”

This discussion raises the following questions about this meeting:

1. Why didn’t Mr Pinnock admit he knew Alan Smith’s arbitration was totally derailed by FHCA withholding relevant inter-procedural arbitration billing claim documents from AUSTEL to Dr Hughes and/or Telstra and from Telstra to Dr Hughes, during December 1994? 
2. Why didn’t Mr Pinnock admit that, between November and December 1994, Telstra sent Dr Hughes a letter that incorporated three separate attachments, regarding the billing faults Alan raised in his claim, and which confirmed Telstra advised AUSTEL they would address these faults in their arbitration defence? Ultimately, they only addressed these faults secretly with AUSTEL, on 16th October 1995 five months after Alan’s arbitration was deemed to be complete. 
3. Why didn’t Mr Pinnock admit the 16th October 1995 submission to AUSTEL was accompanied with a witness statement, dated 12th December 1994 which Telstra knew was flawed?
4. Why didn’t Mr Pinnock admit he added his own handwritten note to one of the letters Alan Smith had written to him in relation to the withholding of these very same documents (see 26th June 1996), noting:-
   • “These are quite serious allegations. We need to respond to specific letters Smith says weren’t forwarded or received and provide answers on each”? 
5. Why didn’t Mr Pinnock admit he knew FHCA wrote to Dr Hughes (copied to the TIO’s office), on 2nd August 1996 admitting to withholding the aforementioned letters from both Dr Hughes and Alan Smith? 

Had Mr Pinnock made these admissions during this meeting, particularly with Telstra’s Legal Representative (John Armstrong), the TIO’s Legal Representative (Peter Bartlett) and Graham’s Schorer’s solicitor (William Hunt) all present, then a proper investigation would have had to have been convened – and such an investigation would have validated Graham’s concerns.

27th February 1997:  It appears from William Hunt’s file notes, he believes even Mr Pinnock is now wondering where the discovery and production of document issues are heading:-

“In support of Pinnock’s own views as well as what was put to him by me, he will ring Gordon Hughes to advise that with Telstra’s and his permission, I am to ring Hughes on Thursday or Friday afternoon – the idea being that the problem of obtaining information from Telstra via FOI is to be abandoned in effect by getting it specifically under directions from Dr Hughes and that there will be a need to get certain information first before usefully any further information can be obtained.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 260)

Dr Hughes responds to William Hunt’s letter of 25th February 1997 (incorrectly referring to 26th February 1997).  In this response Dr Hughes notes:-

“At this stage, I am not inclined to hold an oral hearing to discuss ‘the continuing failure of Telstra to supply information in breach of the basis on which the FTSP and FTAP were entered into’.”

It appears Dr Hughes forgot the commitment he made to Graham and the other COT cases, on 17th February 1994 “that as arbitrator, he would not make a determination on incomplete information’. (GS-CAV Exhibit 258 to 323 - See GS-CAV 261) 

3rd March 1997:  Ted Benjamin writes to Dr Hughes, re Schorer Arbitration – Golden Messenger:

“I refer to your letter 18 February 1997 and the Claimants’ letter dated 25 February 1997. …

Considering the options you outlined in your letter dated 18 February 1997Telstra does not propose, at this stage, to respond in detail to the Claimants’ request for documents as such a response may be irrelevant.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 262)

5th March 1997:  Dr Hughes replies to Ted Benjamin, noting:-

“As foreshadowed, I propose giving directions regarding the production of documents by each party. This may or may not involve a direction that Telstra produce documents.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 263)

12th March 1997:  Ted Benjamin writes to Dr Hughes, stating:-

“I refer to your letter dated 5 March 1997 in which you foreshadowed giving directions in relation to the production of documents, and allowed the parties until today to provide you with their submissions by way of comment.”

“As Telstra has not completed its submission, I propose that subject to your consent, the parties be allowed until close of business this Friday 14th March 1997.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 264)

14th March 1997:  While misleading Graham, in regards to the type of information that should be readily available to him, i.e., the CENTOC – TRAXE exchange congestion data information, Mr Benjamin states:

“I understand the tables of data at page 137 of the AUSTEL Report to have been compiled from Traffic Observation (TROB) data, which was specifically extracted and analysed for AUSTEL in the course of preparing its report of April 1994.”(GS-CAV Exhibit 258 to 323 - See GS-CAV 265-A)

Various official Senate Hansard recordings of March 1999 show Senators Alan Eggleston, Kim Carr and Chris Schacht all damned Telstra for withholding these types of important technical documents from the COT cases during their arbitrations.

Attached as Exhibit GS-CAV Exhibit 258 to 323 - See GS-CAV 265-B is page 30 of an Excel spreadsheet, marked Legal Professional Privilege – Telecom Confidential, listing an array of technical fault information associated with Alan Smith’s complaints raised with Telstra in February 1993.  Telstra only supplied this Excel information and numerous similar files to Alan in October 1997, under pressure applied by the Senate.  At points 755 and 758 in this document, is evidence confirming TRAXE – CENTOC – Traffic Data Acquisition Report half-hour summaries were in existence during Alan’s arbitration.  However, like much of the technical information relevant to Alan and Graham’s arbitrations, this was withheld from them under Legal Professional Privilege.

14th March 1997:  Ted Benjamin writes to Dr Hughes noting:-

“I refer to your letter dated 5 March 1997 in which you indicated that you proposed giving directions in relation to the production of documents. …”

“The above information/documents have been the subject of Freedom of Information requests made by the Claimants. …”

“These files are clearly subject to a claim for legal professional privilege as they were prepared at Telstra’s solicitors [sic] request, for the sole purpose of use in this arbitration. Telstra has not waived its privileged [sic] in these files and is not prepared to release the whole files to the Claimants. However, Telstra is concerned that the Claimants are using these files (amongst other things) as an excuse for not progressing the arbitration.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 266) 

17th March 1997:  Graham Schorer writes to Dr Hughes:-

“ Enclosed herewith please find a List of Documents now sought from Telstra if you, as Arbitrator, are prepared to direct same to be made available.”

“Please note that this list is part only of the documents required. As soon as I complete the List I will forward same to you.”

“Based on experience, and especially that of other CoT members, I anticipate that when certain documents are made available, it may be then necessary to seek additional documents as the documents supplied might indicate ought to be released.” (GS-CAV Exhibit 258 to 323 - See ​GS-CAV 267)

1st April 1997:  Dr Hughes writes to Ted Benjamin:

“I have perused the submissions of each party in relation to the production of further documents by the other.”

“I have noted the offer by Telstra, in its letter of 14th March 1997, to make available certain computer disks requested by the claimant, subject to specific conditions. In this regard, I note Telstra asserts the disks are subject of legal professional privilege.”

“I presume Telstra maintains the position espoused in its letter of 12 February 1997, namely, that there is no basis for making an award in the claimant’s favour and that I should find accordingly. …

“I am not in a position to judge whether Telstra’s claim of legal professional privilege is well founded. I do believe, however, that there is no reason why the disks should not be made available under the conditions proposed by Telstra. This will clearly be the most expeditious manner of progressing this arbitration.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 268)

Dr Hughes addresses a mirrored copy letter to William Hunt.

2nd April 1997:  Graham Schorer writes to Dr Hughes:

“I note Telstra still asserts that the requested disks are the subject of legal professional privilege.”

“I still maintain Telstra are wrongly claiming these disks are the subject of legal professional privilege which is in accordance with the legal advise [sic] I have received. …”

“I understand you are only prepared to direct Telstra to supply the requested disks to myself if I totally accept your qualifications which are:

prior to release of the disks to the claimant, the claimant (through his representatives) must acknowledge in writing that by releasing these modified files, Telstra has not waived its privilege in relation to the whole files or any subsequent versions and that the claimant will not raise any argument to the contrary; and
the claimants will treat the files and the information contained in them as confidential and shall only use them for the purposes of this arbitration.

“In order to enable me to finalise my claim and progress my arbitration, I accept the Arbitrator’s qualifications and undertake to treat the files and the information contained in the disks as confidential and shall only use the information contained in the disks for the purpose of this arbitration.”(GS-CAV Exhibit 258 to 323 - See GS-CAV 270)

9th April 1997:  Ted Benjamin raises his concerns with Dr Hughes, stating:

“I am not satisfied that the undertaking provided by Mr Schorer in his facsimile of 2 April 1997 adequately responds to the issues raised in your letter of 1 April 1997.

“While Mr Schorer states that he accepts the qualifications set out in your letter he does not positively state that he acknowledges that Telstra is not waiving its privilege in relation to the whole files or any subsequent versions of that he acknowledges that he will not raise any argument to the contrary.

“This matter could be simply addressed by Mr Schorer or Mr Hunt writing to you and stating that, further to Mr Schorer’s letter of 2 April 1997, Mr Schorer:

1. Acknowledges that by releasing the modified files, Telstra has not waived its privilege in relation to the whole of the files or any subsequent versions and that Mr Schorer will not raise any arguments to the contrary; and
2. that Mr Schorer will treat the files and the information contained in them as confidential and shall only use them for the purposes of this arbitration.”

(GS-CAV Exhibit 258 to 323 - See GS-CAV 271)

15th April 1997:  Dr Hughes writes to Mr Benjamin:

“I acknowledge receipt of your letter 9 April 1997. I do not necessarily agree that the claimant’s response is inadequate. I would be prepared to accept that the intention of his letter dated 2 April 1997 is to accept the conditions initially proposed by Telstra.

“Given that you have raised concerns, however, I shall ask Mr Hunt to seek a brief written confirmation from his client that he is willing to provide an acknowledgment and undertaking in the terms set in your letter of 9 April 1997.”(GS-CAV Exhibit 258 to 323 - See GS-CAV 272)

17th April 1997:  Graham writes to Dr Hughes. Graham reluctantly agrees to Telstra’s terms of 9th April 1997:

“This letter is not to be taken as an acknowledgement that Telstra does have the privilege it claims nor is this letter to be taken as an acknowledgment to my detriment or the detriment of any of the claimants in this arbitration in respect of any matters the subject of FOI procedures already set in hand or which may later be set in hand.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 273)

18th April 1997:  Dr Hughes writes Ted Benjamin:

“Assuming Telstra is stratified with the claimant’s acknowledgment, I would expect Telstra to make the disks available to the claimant within 48 hours as directed in my letter of 1 April 1997.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 274-A)

Ted Benjamin responds

“On the basis of the acknowledgement set out in that letter and in Mr Schorer’s letter of 2 April 1997, Telstra will make the disks available to Mr Schorer, by no later than close of business 21 April 1997.”(GS-CAV Exhibit 258 to 323 - See GS-CAV 274-B)

Graham Schorer writes to Dr Hughes:

“I am concerned that Telstra will supply Golden disks with data deleted as suggested in Telstra’s 14 March 1997 correspondence to the Arbitrator.”

“Golden’s discovery upon Telstra does encompass all of the data contained within the disks that Telstra have in their possession.

“Telstra has contested Golden’s right to discovery by claiming legal professional privilege. …

• Golden has never agreed to Telstra’s condition for Telstra to delete data from the unabridged disks,
• nor are Golden prepared to accept disks containing an abridged version of the data contained in the original disks.
• Golden has met all of Telstra’s undertakings on the basis that Golden are provided with the unabridged mirrored copy of the original disks.”(GS-CAV Exhibit 258 to 323 - See GS-CAV 275)

William Hunt’s file note says:

“On 21st April several times attending Schorer who phoned having sent an example of the disk discovery. Two columns were heavily blacked out rendering the disks of no value at all. Extrapolated from the computer disks on to type they turn out to be useless for this purpose

I suggested that he consider an application to the Court or to the Appeals people.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 276-A)

24th April 1997:-  Graham Schorer writes to Dr Hughes in disgust concerning what he received under the Fast Track Arbitration discovery process (GS-CAV Exhibit 258 to 323 - See  GS-CAV 277-C).

“The Telstra disk supplied to GOLDEN in accordance with your directive has had 9 columns of data deleted, leaving only 6 columns of data of little relevance to GOLDEN.”

Mr Benjamin writes to Dr Hughes, setting out Telstra’s further concerns about Graham Schorer:

“The letter of 14 March 1997, which was copied to Mr Schorer, made it clear that only the modified files would be released to the Claimant.”

“It is therefore incorrect for Mr Schorer to contend that he has met all of Telstra’s required undertakings and should therefore be provided with an unabridged version of the disks.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 277)

28th April 1997:  William Hunt drafts an FOI request for Graham

“The suggested alterations to the draft are:

“Re: Paragraph 1

All agenda and minutes of Telstra meetings related to identifying various methods or ways by which Telstra could investigate and maintain electronic (or other) surveilance [sic] of CoT members’ activities.”

“Re: Paragraph 2

All E-mail messages, notes, diary entries of or to Mr Frank Blount, Mr Doug Campbell, Mr Paul Rizzio, Mr David Krasnostein, Mr Jim Holmes, Mr Michael Montalto, Mr Charlie Zoi and any other Telstra personnel which relate or refer to engagement and/or use by whatever means by Telstra of services by INGE Detective Agency.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 278-A)

8th May 1997:  Graham Schorer’s request (under FOI) for all documentation regarding Telstra’s employment of Inge Detective Agency Pty Ltd, re their surveillance of the COT cases, was the result of information the COTs received regarding Telstra having or compiling a file on the COT cases for their internal intelligence network. (GS-CAV Exhibit 258 to 323 - See GS-CAV 278-B)

Exhibit GS 278-c comprises two pages from the Graham Schorer & Alan Smith Fax Interception Exhibit 3 file, prepared for Allen Bowles in January 2007.  It is quite clear from reading these two pages that Alan and Grahams’ business and/or private residences were under electronic surveillance via Telstra’s unauthorised fax-screening process, at least up to 1999.  The actual documentation that was intercepted via this screening process is attached to Exhibit 3.  It is ironic that the only documents that were intercepted, before being sent to the original destinations are only Telstra-related information

The CAV John Pinnock – Interception of facsimile transmissions LGE 2 targets show electronic surveillance was still in progress in December 200

20th May 1997:  Mr Benjamin writes to Dr Hughes:

“On 4 February 1997 you requested submissions from the parties as to the further documentation they required to be produced.

“Mr Schorer has also sought a direction with respect to the provision of the entire version of the disks 1Schorer.xls, 2Schorer.xls and MGSchor2.xls. Telstra responded to the concerns raised by Mr Schorer on 24 April 1997. However, no ruling has been made.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 279)

22nd May 1997:  Dr Hughes responds to Ted Benjamin’s letter:

“I acknowledge receipt of your letter 20 May 1997.”

“On 1 April 1997, I directed that Telstra provide specified computer disks to the claimant, subject to certain qualifications. The qualifications included an undertaking to be provided by the claimant.

“The claimant subsequently provided an undertaking which acknowledged that Telstra had not waived its privilege in relation to the contents of the diskettes. …

“The claimant suggested that Telstra should make an unbridged version of data available to me so that I could decide whether Telstra was entitled to claim legal professional privilege. …”

“The claimant’s query relates to whether the claim of legal professional privilege is well founded. …”

“I propose directing that Telstra produce the disks to me in an unabridged form and provide such co-operation as necessary to enable me to inspect the contents and determine whether the claim for legal professional privilege is well founded.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 280)

27th May 1997:  John Pinnock advises Graham Schorer:

“I have recently been advised that Lane Telecommunications business has been purchased from Pacific Star by Ericsson Australia.”

“Lane Telecommunications will remain an independent telecommunications consultancy, forming part of the Services Corporate Business Unit of Ericsson Australia.” 

Comment:

The Ericsson ARE, ARF and AXE inter-exchange equipment used by Telstra to service the exchanges that COT cases’ businesses connected to was the root cause of most of their telecommunications problems. How fortunate was it for Ericsson to have COT cases’ claim fault material readily available, after the purchase of Lanes?

30th May 1997: Ted Benjamin responds to Dr Hughes’ letter of 22nd May 1997.

“As stated in my letter of 24 April 1997, the entire disk was prepared at the request of Telstra’s solicitors for the sole purpose of the arbitration. Telstra claims privilege for the entirety of the disk. Telstra is not, and has never asserted that only parts of the disk are privileged. …”

“The analysis was performed for the purpose of assisting Telstra in the preparation of its Defence in this arbitration.”

“In these circumstances, neither Telstra nor its independent legal advisors can see how there can be any serious argument as to whether privilege has been properly been claimed. …”

“However, Telstra is concerned that if you were to view the material you may find it difficult in practice, to put the material wholly out of your mind in making your Award in this arbitration. I am advised that it is for this reason the judges are generally most hesitant to review the documents where a claim for privilege is made, unless these is legitimate cause to doubt the validity of the claim. …”

“Notwithstanding the above, in order to expedite the matter I enclose:

1. Masked disk sent to Mr Schorer;
2. Unmasked disk;

I look forward to receiving your ruling.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 282)

12th June 1997:  Dr Hughes responds to Ted Benjamin’s letter and states:

“Clearly I need to be satisfied that the diskettes in question were prepared at the request of your solicitors for the sole purpose of this arbitration. Are you able, and do you wish, to provide further evidence in support of your contention that this was the sole purpose for which the diskettes were prepared?” (GS-CAV Exhibit 258 to 323 - See GS-CAV 283)

13th June 1997:  William Hunt writes to Dr Hughes concerning his letter to Mr Benjamin:

“We are in receipt this morning of your copy letter dated 12th June, 1997…”

“On information supplied by our client, we believe that Column E of the printout of the diskettes as made available by Telstra is not privilege from disclosure.”

“It would appear that the description is simply a description of documentation which already was in existence before there was any arbitration proceedings on foot.”

“As such it should not be privileged from production.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 284)

18th June 1997:  Telstra’s Corporate Secretary, Mr Montalto writes to Alan:

“In those letters you have made allegations as to Telstra’s conduct in relation to a report prepared by Bell Canada International. I am advised that you raised these same allegations in your arbitration claim made against Telstra. I am advised further that you again raised these allegations with the Arbitrator after an award had been delivered and referred those matters to the Telecommunication Industry Ombudsman. Telstra responded to the Ombudsman’s queries in relation to this matter.” (GS-CAV Exhibit 216 to 257 - See AS-CAV 230)

Telstra to appear before the Senate Estimates Committee – Arbitration

19th June 1997:  Telstra’s Legal Directorate, on behalf of Ted Benjamin, writes to Mr Schorer under the heading, “Confidentiality Waiver for Senate Estimates Committee”:

“Telstra is to appear before a Special Parliamentary Committee of the Senate on 24 June 1997.”

“Telstra will be asked questions relating to the ‘Casualties of Telecom’ cases. You may have been invited to appear before the committee. …”

“Telstra views its obligation of confidentiality seriously. Telstra will not disclose any confidential information regarding the arbitration process before the parliamentary committee unless you, and the Arbitrator and the Administrator specifically agree.”

The above statement by Mr Benjamin, “Telstra views its obligation of confidentiality seriously,” would be laughable if it wasn’t so serious, considering it was Mr Benjamin, who on 30th November, 1993, freely supplied confidential TIO council COT case information to Telstra’s hierarchy after a TIO Council Meeting. (GS-CAV Exhibit 258 to 323 - See GS-CAV 285)

23rd June 1997:  Dr Hughes writes to Ted Benjamin in response to the letter of 19th April 1997, under the heading “Confidentiality Waiver For Senate Estimates Committee Schorer Arbitration.” He states:

“I consider it would be inappropriate for me to waive the requirements for Telstra to comply with its confidentiality obligations in this arbitration.

“I consider the requirements for confidentiality to be a fundamental feature of this arbitration and the other COT Case arbitrations. A waiver for the purpose outlined would potentially undermine both the integrity of past rulings and my ability to continue the present arbitration involving Schorer.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 286)

Comment:

It appears Dr Hughes didn’t understand the integrity of the COT arbitrations were already compromised when he continued to use an Arbitration Agreement he had previously deemed ‘not credible’ (12th May 1995)

Roger Levy (Telstra Consultant) provides a Statutory Declaration stating:

“one of the things that needed to be done, before work could substantially begin in preparing Telstra’s defence, would be to organise the vast quantities of documentation pertinent to Mr Schorer’s complaints which had been provided to Mr Schorer under the Freedom of Information Act.  Leo Gore, the solicitor of FHP then responsible for this Arbitration, directed me to arrange for this documentation to be indexed in an Excel spreadsheet…” (GS-CAV Exhibit 258 to 323 - See GS-CAV 287)

Comment

When Mr Levy refers to documents “which had been provided to Mr Schorer under the Freedom of Information Act”, he does not indicate Graham actually received all the documents under FOI that Mr Levy provided to Freehill Hollingdale & Page, i.e., all the information Mr Levy used to produce the Excel files

In Alan Smith’s case, CENTOC – TRAXE data was entered into Excel files (confirming Telstra had sourced that data from somewhere), which also confirms the CENTOC – TRAXE data was available to Telstra’s lawyers when they prepared their Excel files.  Alan only received the Excel files on disk because of intervention by the Senate, 28 months after the end of Alan’s arbitration, and he was never provided with the actual CENTOC –TRAXE data documents, only information indicating the data exist somewhere but was being withheld under Legal Professional Privilege.  Had Alan been given the Excel disk when Telstra conducted their Service Verification Tests, he would have been able to compare the SVT data with the actual CENTOC – TRAXE data.  That comparison may have helped him prove Telstra used Statutory Declarations, sworn by two Senior Telstra Executives, despite those Statutory Declarations containing information known to be false (see  Telstra's Falsified SVT Report ).  Instead, the false Statutory Declarations were used in Alan’s arbitration and were not challenged, to the serious detriment of Alan’s claim

24th June 1997:  Dr Hughes receives a letter from Telstra’s Legal Directorate, on behalf of Ted Benjamin:-

“I enclose a confidential Statutory Declaration of Roger Laurence Levy.”

“This statutory declaration relates to the circumstance of the creation of the Schorer disks. As such, the statutory declaration should not be provided to Mr Schorer. A copy of this letter has been sent to Mr Schorer without the statutory declaration.”

“Given the time that has elapsed since the disks were created, Mr Levy is most appropriate person currently retained by Telstra to make the declaration. For your information, the Group General manager, Mr Steven Black and Ms Joy Geary Special Counsel Dispute Resolution are no longer employed by Telstra. Mr Gore, the solicitor at Freehill Hollingdale & Page (FHP) primarily involved in the matter is no longer employed by FHP.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 288)

In 2001, renowned Australian FOI Associate Professor Suzanne McNicol provided a legal opinion to the COT cases, stating Telstra’s use of legal professional privilege in these COT technical issues was spurious and illegal.

A Senate Hansard exhibit (GS-CAV Exhibit 258 to 323 - See GS-CAV 289), on page 77, confirms Senator Carr stated to Ted Benjamin:

“In terms of the cases outstanding, do you still treat people the way that Mr Smith appears to have been treated? Mr Smith claims that, amongst documents returned to him after an FOI request, a discovery was a newspaper clipping reporting upon prosecution in the local magistrate’s court against him for assault. I just wonder what relevance that has. He makes the claim that a newspaper clipping relating to events in the Portland magistrate’s court was part of your files on him.”

Senator SHACHT – “It does seem odd if someone is collecting files. That is a matter that has nothing to do with his telecommunications business. It seems that someone thinks this is a useful thing to keep in a file that maybe at some stage can be used against him.” 

Senator CARR – “Mr Ward, we have been through this before in regard to the intelligence networks that Telstra has established. Do you use your internal intelligence networks in these CoT cases?

As shown, on 15th March and 8th April 1993 Telstra was already involved in internal intelligence networking in 1993, when Freehill Hollingdale & Page employed Equity Investigators to investigate Graham’s Schorer’s business affairs.  Facsimile interception files confirm someone with access to Telstra’s network was still electronically intercepting legal correspondence between Graham and his lawyer as late as 199

30th June 1997:  Graham Schorer writes to Dr Hughes, regarding Roger Levy’s Statutory Declaration letter he received from Telstra 24th June, 1997:

“The contents of Mr Levy’s Statutory Declaration contradicts what I have directly been told by the person who alleges to have created the Excel spreadsheet file.” 

“The delay in my ability to obtain a Statutory Declaration from this person is due to an event taking place before this person will sign a Statutory Declaration.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 290)

7th July 1997:  Dr Hughes’ letter to Mr Benjamin shows he is blind to the fact that he has already compromised the integrity of the arbitrations.  Dr Hughes’ statement to Ted Benjamin:-

“Accordingly, I direct that Telstra make available to the claimant, in unabridged form, the materials described in my direction of 1 April 1997,”

appears to have been the reason Mr Levy alters his previous statutory declaration. (GS-CAV Exhibit 258 to 323 - See GS-CAV 291)

11th July 1997:  Ted Benjamin writes to Dr Hughes:-

“I attach a supplementary statutory declaration of Roger Levy.

“The declaration corrects the period for which Mr Levy has been a consultant to Telstra and seeks to clarify the time at which work on the disks commenced.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 292-A)

“I, ROGER LAURENCE LEVY … do solemnly and sincerely declare:

I commenced at Telstra on 15 November 1994, not in October 1994 as stated in paragraph 2 of my earlier declaration. …
When I commenced at Telstra, rudimentary work had already commenced compiling the Excel spreadsheet. I do not know precisely when that work commenced.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 292-B)

Ted Benjamin was no stranger to discrepancies in Statutory Declarations signed off by Telstra witnesses during the COT arbitrations.  On 21st March 1997 Mr Pinnock wrote to Mr Benjamin stating

“I would appreciate your advice concerning the matters raised by Mr Smith, in particular and arising out of your letter of 23 December 1994 to Dr Hughes:

• any explanation for the apparent discrepancy in the attestation of the witness statements of Ian Joblin
• were there any changes made to the Joplin statement originally sent to Dr Hughes, compared to the signed statement?”

(GS-CAV Exhibit 258 to 323 - See GS-CAV 293-a)

The matter concerning why Telstra allowed Freehills, its external lawyers, to sign a Statutory Declaration without the witness being present was never addressed by Dr Hughes during Alan’s arbitration.  That this serious breach of law was never correctly investigated, in Alan’s arbitration, left the door open for Telstra and its lawyers to offend again.  Could some Telstra witness statements, submitted during Graham’s arbitration, have also been signed by Freehills, before being forwarded onto the witnesses to sign

Exhibit (GS-CAV Exhibit 258 to 323 - See GS-CAV 293-B) is a letter dated 26th June 1998 from Senator Bill O’Chee to Telstra’s Graeme Ward, regulatory and external affairs, stating

“I note in your letter’s last page you suggest the matter of the alteration of documents attached to statutory declarations should be dealt with by the relevant arbitrator. I do not concur. I would be grateful if you could advise why these matters should not be referred to the relevant police.

There was no transparent outcome to this

15th July 1997:  William Hunt responds to Dr Hughes’ letter to Telstra of 7th July 1997 requesting Dr Hughes to grant more time for his client to “make appropriate submissions”. (GS-CAV Exhibit 258 to 323 - See GS-CAV 294)

16th July 1997:  Ted Benjamin writes to Dr Hughes stating:

1. “Telstra notes your direction and that you will provide the unabridged version of the disk to the Claimant;
2. “In making that direction you have not made any ruling as to whether Telstra’s claim that the three computer files, namely 1schorer.xls, 2schorer.xls and mgschor2.xls are privileged is well founded. You have further made no judgement as to whether the individual documents described in those files are relevant to the proceedings or whether the individual documents could be subject to a claim of legal professional privilege.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 295)

16th July 1997:  John Pinnock explains his concern to William Hunt:

“Lane is presently involved in arbitrations between Telstra and Bova, Dawson, Plowman and Schorer. The change of ownership of Lane is of concern in relation to Lane’s ongoing role in these arbitrations.

“The first area of concern is that some of the equipment under examination in the arbitrations is provided by Ericsson.…

“The second area of concern is that Ericsson has a pecuniary interest in Telstra. Ericsson makes a large percentage of its equipment sales to Telstra which is one of its major clients.

“It is my view that Ericsson’s ownership of Lane puts Lane in a position of potential conflict of interest should it continue to act as Technical Advisor to the Resource Unit. …

“The effect of a potential conflict of interest is that Lane should cease to act as the Technical Advisor with effect from a date shall [sic] be determined.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 296-A)

On 9th March 1995 the TIO appointed Lane as the Technical Resource Unit for the TIO-administered COT arbitrations (GS-CAV Exhibit 258 to 323 - See GS-CAV 296-B).  During the next two years, Lane assessed the COT claimants’ technical claims but, during the same period, Lane was purchased by Ericsson as stated previously.  Alan and Graham maintain that, once this contact with Ericsson had occurred, the TIO was obliged to arrange for the COTs’ technical claims to be re-assessed to ensure Lane had not hidden any known problems with the Ericsson AXE exchanges Graham and Alan’s businesses were routed through.

Lane prepared the draft of their Cape Bridgewater Report on 6th April 1995 before Paul Howell of DMR Canada arrived in Australia.  In the final DMR and Lane Cape Bridgewater Report (dated 30th April 1995), 22 of the 23 faults discussed relate to problems Alan experienced before 1994 even though, when David Read of DMR had visited Cape Bridgewater on 5th April 1995 Alan showed him Telstra’s list of 72 complaints registered by various Cape Bridgewater residents between February and August 1994.  None of Alan’s up-to-date 1994/95 evidence of the ongoing billing problems associated with the Cape Bridgewater RCM system, which routed through the Portland Ericsson AXE exchange equipment, were ever addressed.  What was the point of the TIO commissioning a Technical Unit to view the ongoing problems experienced by claimants like Alan and Graham, if the Technical Consultants only addressed historical problems and not the problems still affecting the COT cases

17th July 1997:  Freehill Hollingdale & Page provides its legal opinion to Sue Laver, Telstra’s Legal Directorate, stating:

“We refer to your instructions to advise whether the database of information produced for the purpose of preparing Telstra’s defence in the Schorer Arbitration and which is contained on computer disk (the ‘Telstra Disk Document’) is subject to legal professional privilege.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 297)

24th July 1997:  Graham and Alan are not the only ones with a nagging doubt about the true independence of Lane Telecommunications.  In John Pinnock’s letter to Ann Garms, he states:

1. “By letter dated 14 November 1995 I advised you that I did not have the power to dismiss the Arbitrator or the Resource Unit. I advised that pursuant to the Commercial Arbitration Act 1984 (Vic) the Supreme Court has the power to remove an arbitrator in certain circumstances. …”
2. “In November 1995 you had concerns regarding the independence of Lane. By letter dated 6 November 1995, having made considerable enquiries of the relevant parties on the issue of independence, I advised you of my view that your concerns regarding the independence of Lane were unfounded. …”
3. “On 8 March 1995 you advised the TIO that Mr David Read of Lane was unacceptable on the basis that he was a former employee of Telecom. However on 13 March 1995 you advised the TIO that ‘after meeting with Mr David Read I feel confident that he and his company Lane Telecommunications Pty Ltd possess the necessary integrity, professionalism and expertise to do justice to the assessment of our Claim.’” (GS-CAV Exhibit 258 to 323 - See GS-CAV 298)

Mr Pinnock did not reveal to Ms Garms that Alan Smith had provided him irrefutable evidence confirming David Read acted either on his own volition or in concert with DMR (Canada), when addressing only 23 of Alan’s 200 claims (fault) documents.  (See Alan Smith CAV Chronology file).

25th July 1997:  Dr Hughes writes to Ted Benjamin

“Taking into account the matters which you raised, I direct that in addition to the files embraced by my direction of 7 July 1997, Telstra make available to the claimant its current version of those files on or before 29 July 1997.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 299)

Dr Hughes also writes to William Hunt:-

“I refer to your letter of 15 July 1997 and would be pleased to receive your submission regarding my proposal for the future conduct of this arbitration by 5.00pm on 30 July 1997.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 300)

29th July 1997:- Ted Benjamin supplies Dr Hughes with the Excel disk and states:-

“I note that there may be duplication in the summaries contained in the disk. Like the earlier disk supplied to Mr Schorer these files are Telstra’s working summaries of the documents. Those summaries do not stand in the place of any formal document provided to you in the course of this arbitration.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 301)

7th August 1997:  Graham Schorer faxes William Hunt a number of printout samples extracted from the first and second disks received from Telstra.  These examples (GS-CAV Exhibit 258 to 323 - See GS-CAV 302-A), do not compare with the original Excel disk information (GS-CAV Exhibit 258 to 323 - See GS-CAV 302-B) Alan Smith downloaded when he received his files in October 1997, and which confirm Telstra regularly checked Alan’s service provided by using the CENTOC – TRAXE traffic reports

Comparing his material to Graham’s, Alan believes Telstra provided Alan with the correct, complete Excel spreadsheets because they were released 28 months after his arbitration and so Telstra did not feel they posed any sort of threat.  The comparison between Alan and Graham’s spreadsheets reveals Alan’s spreadsheets include more details than Graham’s. Alan’s spreadsheets include columns recording when the fault was logged, who responded to the fault and when, while Graham’s spreadsheets don’t include this information, indicating Graham’s may have been edited before release.  If Telstra had revealed it was using CENTOC – TRAXE reports to measure the traffic through the 48 exchanges routed through to the North Melbourne exchange, these reports might have shown how bad the congestion still was.

18th August 1997:  Sister Maureen Burke, IBVM, principal of Loreto College, Ballarat, writes to Alan:

“Thank you for the opportunity to read the working draft of your book and to view your promotional video.

“Only I know from personal experience that your story is true. 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.” (AS-CAV Exhibit 181 to 233 - See AS-CAV 231-A)

Alan first met Sr Burke in March 1992, when she was attempting to organise a trip to the holiday camp for a group of underprivileged children from the Ballarat region. When she had been unable to contact Alan by phone, over a couple of weeks, she decided to drive the three hours to visit instead.  She arrived just after Alan’s partner (at that time), Karen Gladman, handled a phone call from an irate singles club patron who had also been trying to ring the camp for weeks.  Karen had just worn the full brunt of this man’s fury and was in the office, in tears.  After speaking to Karen, Sr Burke suggested Karen needed to see a counsellor and that it would be in the best interest of both of them if Karen left Cape Bridgewater.  Sr Burke believed she could arrange counselling for Karen in Warrnambool.  Over the next two or three years from then on, Sr Burke was instrumental in keeping Alan calm and helping him control his anger towards Telstra

Twelve months after Sr Burke’s charity camp, another sister from Loreto College (Sr Karon Donnellon) attempted, unsuccessfully, to phone Alan to arrange another camp. She finally wrote

“During a one week period in March of this year I attempted to contact Mr Alan Smith at Bridgewater Camp. In that time I tried many times to phone through.

“Each time I dialled I was met with a line that was blank. Even after several re-dials there was no response. I then began to vary the times of calling but it made no difference.”(AS-CAV Exhibit 181 to 233 - See AS-CAV 231-B)

Alan received some similar 80-plus letters over the years, from people with similar complaints to Sr Donnellon, but they appear to have been withheld from DMR and Lane (the TIO-appointed consultants) during Alan’s arbitration, even though he submitted them to the arbitrator as supporting material.  He also covered his Letter of Claim with a Statutory Declaration as per clause 6 of the Arbitration Agreement, which states

“All written evidence shall be in the form of an affidavit or statutory declaration.

Why would DMR and Lane state, in their report, “A comprehensive log of Mr Smith’s complaints does not appear to exist”? (AS-CAV Exhibit 282 to 323 - See  AS-CAV 322-C )

If DMR and Lane did not see the letters and Alan’s comprehensive log of fault complaints, who withheld this information from them?

11th August 1997:  On behalf of Telstra’s John Armstrong, Telstra’s Legal Directorate writes to the Commonwealth Ombudsman, John Wynack, stating:-

“Further, as directed by the Senate, Telstra has sought advice as to its claim for privilege.  A copy of that advice is enclosed…” (GS-CAV Exhibit 258 to 323 - See GS-CAV 303-A)

In an advice document, Rod Kearney states, at point 3:

“As the FOI delegate making the decision, I considered the spreadsheets were privileged for two reasons, firstly, because they were created solely for the purposes of developing Telstra’s defence to Mr Schorer’s claim under the Fast Track Arbitration Process, and secondly, because the spreadsheets were new documents which had been created to provide advice to Telstra’s solicitors as to the content and relevance of the documents in the context of Telstra’s defence. … I decided that legal professional privilege applied.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 303-A)

We do not know whether Mr Kearney is qualified to make such legal professional privilege decisions but exhibit GS-CAV Exhibit 258 to 323 - See GS-CAV 303-B is an internal Telstra memo, dated 21st January 1994, and notes, under the heading, “Request for Telecom Records”:-

“The attached request is referred for your action. The author of the request, Simon Chalmers, is from Freehill Hollingdale & Page, Telecom’s solicitors. I suggest that you action this request not just for the two customers mentioned but also for Mr G Schorer and Mr A Smith. Information that has previously been sent to the Viewing Room will be accessed from there. It is important to note that material that is not produced for this request cannot be used in Telecom’s defence.

Exhibit GS-CAV Exhibit 258 to 323 - See GS-CAV 303-C is an earlier internal Telstra fax, dated 17th January, 1994 from Simon Chalmers to Duncan Wallace stating, under the heading “Requests for Telecom records – Mr Alan Smith/Mr Graham Schorer”

“I need your assistance to ensure that all documents, memos, notes, outputs of network monitoring or testing, and all other records (‘records’) concerning Mr Alan Smith’s or Mr Graham Schorer’s telephone services…

When Rod Kearney wrote to Mr Wynack (see 11th August 1997), it seems he was not aware of technical information, regardless of who prepares it, does not fall under legal professional privilege.  Graham should have had access to the same technical information Telstra’s solicitors used to prepare Telstra’s defence

14th August 1997:  Dr Hughes writes to William Hunt

“Mr Schorer has commented that at best an interim technical evaluation could only proceed ‘on the evidence submitted to date by Telstra’. I do not agree with this observation. …

“The first step in the process would be for the resource unit to assess the nature and content of material submitted to date, prior to referral to the technical expert for evaluation.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 304-A)

“Accordingly, Idirect that

1. the evidence submitted by the parties to date now be referred to the Resource Unit;
2. the Resource Unit examine the materials submitted to date and inform me whether, in their opinion, further material should be produced by either party before a technical evaluation takes place;
3. subject to (b), or may the materials submitted by the parties be referred to Mr Howell for technical evaluation;
4. noting that Mr Howell may not be able to reach a conclusive opinion the progress of this matter be reviewed by me upon receipt of an interim technical evaluation report from Mr Howell;
5. in the meantime, Telstra advise me by 20 August 1997 whether any modifications to the disks enclosed with its letter to me of 29 July 1997 involved the deletion of any material and, if so, specifying what material was deleted.”

COMMENT:

To the casual observer, Dr Hughes’ letter may seem quite reasonable, but to the COT claimants who suffered because Dr Hughes was too weak to ensure Telstra acted honestly and the Resource Unit remained independent, it is a smokescreen.  Dr Hughes and the people this letter was copied to (except, perhaps, Ted Benjamin) must have known that, in his incomplete Draft Report dated 30th April 1995, Paul Howell advised Dr Hughes

“One issue in the Cape Bridgewater case remains open, and we shall attempt to resolve it in the next few weeks, namely Mr Smith’s complaints about billing problems. Otherwise, the Technical Report on Cape Bridgewater is complete.

Mr Howell added he would “attempt to resolve it in the next few weeks”. (See CAV Relevant Information file, Alan Smith, exhibits 5 and 6.)  Dr Hughes forwarded the same report to Alan Smith, with the same date but without the reference to the report being incomplete, and instructed Alan to respond within five days

Dr Hughes’ statement that “Mr Howell may not be able to reach a conclusive opinion…” would also be laughable, if it was not such a hollow statement

18th August 1997:  Dr Hughes’ instructs Sue Hodgkinson:

“You have previously been forwarded a copy of my letter to Mr Hunt dated 14 August 1997.

“I now wish to formally instruct you to examine the material submitted to date with a view to submission, as soon as practicable, of the technical materials to Mr Howell for technical evaluation.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 304-B)

As shown above, see 2nd August 1996, Ms Hodgkinson knowingly misled Dr Hughes in her memo regarding Alan Smith’s arbitration.  It is unbelievable the TIO’s Office did not severely reprimand Ms Hodgkinson for her gross misconduct in Alan’s arbitration, and it is beyond contempt for the TIO to compound this incident by allowing Ms Hodgkinson to assess the validity of inter-procedural documents in Graham’s arbitration.  Did Ms Hodgkinson hide relevant documents from Dr Hughes in Mr Schorer’s arbitration at the detriment of his claim

GS-CAV Exhibit 258 to 323 - See GS-CAV 304-C is a combined list comprising only one-third of Alan Smith’s claim documents submitted into arbitration and a list of Telstra’s defence documents (that assessed those claim documents on this restricted list).  This list was attached to the DMR and Lane report of 30th April 1995 and provided as a draft for Dr Hughes to assess

GS-CAV Exhibit 258 to 323 - See GS-CAV 304-D is the same list of documents but includes an additional 13 of Alan’s claim documents, which were supposed to have also been assessed by Telstra in their defence and DMR and Lane in their evaluation of Alan’s claim and Telstra’s defence of his claims.  This second list was provided to Alan to convince him that FHCA passed ALL of Alan’s claim documents on to Telstra, DMR and Lane, when the list at exhibit GS-CAV Exhibit 258 to 323 - See GS-CAV 304-C proves otherwise

Alan Smith’s CAV Relevant Information file shows that in both DMR and Lane reports, dated 30th April 1995, all the technical information is exactly the same – word for word.  A further comparison of these two reports (when reading in conjunction with Telstra’s defence) confirms none of the 13 extra documents was assessed. Someone from FHCA acted unconscionably in withholding Alan’s documents from being addressed by Telstra and DMR and Lan

Alan has matched these lists to his Telstra fax/phone account to determine which claim documents he faxed to Dr Hughes and which were then copied on to Telstra under the agreed rules of supply.  He discovered Telstra did not receive at least 41 separate sets of information that Alan faxed to Dr Hughes’s office

GS-CAV Exhibit 89 to 154(b) - See GS-CAV 136 confirms an arrangement existed between Telstra, Warwick Smith and FHCA, to vet arbitration documents prior to being delivered to Dr Hughes.  Are we to assume that some of the 41 documents were vetted and then destroyed before reaching Dr Hughe

Again, Mr Pinnock acted unethically when he allowed FHCA, DMR and Lane to continue as the official Resource Unit in Graham’s arbitration, once Alan provided the evidence he did

20th August 1997:  John Pinnock writes to Graham

“At the TIO meeting held at Minter Ellison on Tuesday 29 July 1997, it was agreed that a new technical advisor to the Resource Unit would have to be appointed to your arbitration, to replace Lane Telecommunications. The new advisor will assist Mr Paul Howell.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 305)

Alan says Derek Ryan first suggested he see lawyer Ben Dunn.  After that first visit, Mr Dunn decided he would help Alan, pro-bono, to prepare a brief for presentation either for Senator Alston or the Telstra Board

20th August 1997:  Ben Dunn writes to Alan confirming his belief that Alan was “less than fairly dealt with by Telstra and the arbitrator”.

Not long after he wrote this letter, Ben Dunn would not agree to meet Alan, nor would he return Alan’s phone calls.  Even his office secretary seemed to be annoyed with him on one occasion when Alan had travelled from Portland only to discover that Mr Dunn couldn’t be found. (AS-CAV Exhibit 181 to 233 - See AS-CAV 231)

Alan passed a copy of Mr Dunn’s letter to Steve Boswell (Senator Boswell’s son), who was working at the time as a young solicitor in Minter Ellison’s Sydney office.  Steve later phoned Alan to offer assistance, but Alan decided not to accept, as by this time, Senator Boswell and Senator Alston had left him off the Senate’s litmus test A-list investigation (discussed in October below) into the COT arbitrations and he didn’t want to cause issues between father and so

25th August 1997:  Dr Hughes appears to have given up regarding the disk issues when he states to Ted Benjamin

“Following my letter to Mr Hunt of 14 August 1997, a copy of which was forwarded to you, I had subsequent discussions with Mr Hunt in which he requested on behalf of his client that the unmodified original diskette, which was the subject of my order of 7 July 1997, be made available. The purpose of the request is to enable the claimant to compare the original diskette as supplied which was subjected to modification by Telstra.

“In view of my directions of 14 August 1997, which I consider to be adequate, I do not propose directing that you comply with this request. At the same time, it may assist in the arbitration process if you were to comply with the request.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 306)

27th August 1997:  Graham writes to John Wynack of the Commonwealth Ombudsman’s Office

“It would appear that the Arbitrator has failed to grasp the significance to GOLDEN in not being supplied by Telstra with the unabridged, unmasked, unmodified original diskette containing the Excel files in accordance with his original directive.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 307)

John Wynack responds to Mr Schorer

“I did, however, inform Ms Laver that I would pass on to you the above information and also Ms Laver’s opinion that she believes that Telstra has complied with the Arbitrator’s directions in respect of the computer files.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 308)

16th September 1997:  Graham Schorer writes to John Pinnock.  This letter is one of a number of letters refusing the TIO’s pressured to accept Paul Howell of DMR Group, Canada, as the TIO-appointed Technical Advisor to Graham’s arbitration. (GS-CAV Exhibit 258 to 323 - See GS-CAV 309)

John Pinnock responds to Graham

“I look forward to receiving a nomination from you for a replacement for Lanes, as soon as possible

I remind you, however, as noted in the Arbitrator’s letter of 14August 1997 to your solicitor, that the Resource Unit currently comprises Mr Paul Howell.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 310)

John Pinnock addresses the Senate, Part 

26th September 1997:  Mr Pinnock writes to The Senate Environment, Recreation, Communications and the Arts Legislation Committee, regarding many deficiencies in the COT arbitration process

“[O]ne of the potential deficiencies should have been obvious from the outset. …

“In the process leading up to the development of the Arbitration procedures, the Claimants were told that documents would be made available under the Freedom of Information Act. …

“For present purposes, it is enough to say that the process was always going to be problematic, chiefly for three reasons 

“Firstly, the arbitrator had no control over the process, because it was conducted entirely outside the ambit of the Arbitration Procedures. …

“Finally, as I have remarked previously, the Arbitrations have been bedevilled by the inability of the parties to treat the disputes as matters of a commercial nature and to put behind them the atmosphere of mutual suspicion and mistrust that had built up over a long period of time.” (AS-CAV Exhibit 181 to 233 - See AS-CAV 232-A)

Exhibit AS-CAV Exhibit 181 to 233 - See AS-CAV 232-B contains pages 109 and 110 from the Senate Hansard of 26th September, 1997 – the day Mr Pinnock discussed these issues.  Observe the following questions raised by Senator Schacht at this Senate Hearing and the answers given by both Ted Benjamin and Mr Pinnock

Senator SCHACHT – “Are you also a member of the TIO board?

Mr Benjamin – “I am a member of the TIO council

Senator SCHACHT – “Were any CoT complaints or issues discussed at the council while you were present

Mr Benjamin – “There are regular reports from the TIO on the progress of the CoT claims.

Mr Pinnock addresses the Senate, Part

From 23rd November 1993 when Graham Schorer signed the Fast Track Settlement Proposal (FTSP), he continued to lodge FOI requests for all of Bell Canada International’s (BCI) working notes, data and test information related to the two Telstra-co-ordinated BCI tests of the North Melbourne and associated telephone exchanges.  No relevant material was ever provided during his arbitration.  The Alan Smith CAV Chronology file and supporting material also show that although Alan lodged numerous similar FOI requests, he was never provided with any CCS7 data for 055 267211 (Cape Bridgewater PTARS) or working notes showing how BCI arrived at its findings in the Cape Bridgewater study during his arbitration, either

Exhibit 8 in Graham Schorer’s CAV Chronology file is a copy of a Senate Hansard Report, from pages 94 to 152.  On pages 99 to 100 (see also GS-CAV Exhibit 258 to 323 - GS-CAV 312-A to 323 & GS-CAV 312-B), Mr Pinnock discusses the problems the COT claimants encountered when they attempted to access documents from Telstra.  Yet, he fails to mention Alan Smith proved to Mr Pinnock’s predecessor, Warwick Smith, there were many instances of Telstra’s unethical behaviour during the COT arbitrations, including altering and changing the information on requested documents in an attempt to minimise Telstra’s liability.  This Senate Hansard Report is relevant to Graham’s arbitration, as well as Alan’s because it shows Mr Pinnock was very selective regarding what he chose to reveal to the Senate.  In relation to problems with the arbitration, the TIO implied, wherever possible, that the COT claimants were as much at fault as Telstra

On page 100 of the Hansard report, in relation to arbitration technical reports – the most important issue in the entire COT arbitration process – Mr Pinnock states:

“Those delays have also been exacerbated by extensive arguments by both sides, but particularly by the claimants, as to the accuracy and merits of the technical evaluation and financial evaluation of reports produced by the resource until, so much so, I might say, that the resource unit has almost been in danger of being dragged into the fray when the original intention of the process was for it to be exclusively and really a matter for advice to the arbitrator.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 312-B)

All the health and financial problems that followed for 10 years after the Schorer and Smith arbitrations may well have been avoided if Mr Pinnock had told the Senate, on 26th September 1997, that:-

• Someone with access to the arbitration agreement secretly altered some sections of the document, after the original version was provided to Graham’s legal advisors for assessment, without ever advising any claimants of these changes, and
• These alterations exonerated the resource unit and the special counsel from any liability arising from conscious negligence, to the detriment of both Alan Smith and Graham Schorer. This removed any incentive for the resource unit and the special counsel to look after Graham and Alan’s common interests.

QUESTION 

Why did Mr Pinnock tell the Senate the resource unit was “in danger of being dragged into the fray”?  He knew, on 11th July 1994, the TIO and Telstra agreed together, without consulting the claimants, the resource unit would assess arbitration documents and decide which were relevant before passing them (or not) to the arbitrator (see Telstra’s letter Exhibit 590 in File  AS-CAV Exhibits 589 to 647 ). This decision immersed the resource unit in the arbitration process (i.e., “the fray”) almost from the very beginning

For the TIO to allow Telstra to use the resource unit as a second arbitrator for the vetting of what information the arbitrator should see and/or not view, contravenes the Commercial Arbitration Act 1984 (see GS-CAV Exhibit 258 to 323 - GS-CAV 313 unless all parties have agreed to this in writing).

QUESTION 2

How could Mr Pinnock tell the Senate

“perhaps the most difficult issue, and one that has bedevilled the arbitrations almost from the beginning, was the inability of the parties to treat these disputes as matters of a purely commercial nature” and the parties to the arbitration “were unable to put behind them the attitude of mutual suspicion and mistrust”

His predecessor, Warwick Smith, was advised on 18th April 1995:-

“It is unfortunate that there have been forces at work collectively beyond our reasonable control that have delayed us in undertaking our work.” (See Prologue page  Chapter 1 - The collusion continues )

QUESTION 3

Why didn’t Mr Pinnock inform the Senate that if his predecessor had investigated who “these forces at work” were, that were interfering in this Government-facilitated arbitration process, and eliminated those forces in 1995, the COT arbitrations might have stood a better chance of bringing some sort of justice to the claimants!

QUESTION 4

When Mr Pinnock was addressing the Senate in relation to Alan Smith’s case, why didn’t he advise the Senate he knew Commonwealth Ombudsman Ms Philippa Smith wrote to Frank Blount, Telstra’s CEO, on 6th May 1994 noting:

“it was unreasonable for Telecom to impose a condition for release of certain documents that the participants needed to make further assurances that they will participate in the FTSP; and

“it was unreasonable for Telecom to require the participants to make the assurances while Telecom was considering the agreement related to the FTSP (the Agreement) and thereby denying the participants the opportunity to consider the rules that Telecom wished to have included in the Agreement.” (GS-CAV Exhibit 155 to 215 - See GS-CAV 188)

QUESTION 5

Why didn’t Mr Pinnock tell the Senate that:

1. Derek Ryan of DMR Corporate wrote to Mr Pinnock, as the administrator of Alan Smith’s arbitration, on 2nd December 1995 advising

“I worked all day Saturday and Sunday with Alan Smith trying to interpret the FHCA report. After this work I considered that the report was incomplete as the calculations of the FHCA loss figures were not included in their report. …

“On 17 May I telephoned John Rundell and he stated that he was unable to discuss anything with me until the appeal period had expired. During that telephone conversation I told him that I was unable to recalculate the FHCA figures and that I felt that the report was deficient in this regard, he then stated that he understood my problems and that FHCA had excluded a large amount of information from their final report at the request of the arbitrator.”

1. John Rundell later wrote to Mr Pinnock (13th February 1996) confirming he advised Mr Ryan “that the final report did not cover all material and working papers”

QUESTION 6

Why didn’t Mr Pinnock tell the Senate he knew the technical resource unit’s draft report regarding Alan Smith’s case stated extra weeks were needed to complete the work and this request was mischievously deleted from the draft, and the draft was presented as a final report (in the same way that the FHCA Financial Report was presented as a final report

Mr Pinnock also states

“On an objective and dispassionate analysis in my view of the procedures, there are nevertheless benefits that have been derived, particularly for the claimants, although I am the first to admit that they do not necessarily agree with my view on these matters”

QUESTION 

Why didn’t Mr Pinnock tell that Senate that, long after the arbitration process was supposed to fix the claimants’ telecommunications problems, the businesses of at least two of the claimants, Graham Schorer and Alan Smith, continued to suffer from exactly the same problems that led them to arbitration

QUESTION 

In Alan Smith’s case

1. Telstra’s Peter Gamble’s witness statement noted:-“The SVT, carried out in September 1994, showed that the service passed the Customer Specific Line Tests and the Public Network Call Delivery Tests. My overall conclusion based on the analysis of the selected performance parameters outlined above is that in the periods covered by these investigations (which commenced in July 1991 and concluded in September 1994), Mr Smith’s service met appropriate performance levels and therefore appeared, in my opinion, to be operating satisfactorily” and,
2. On page 23 of the arbitrator’s award, at point (j), the arbitrator states:-

“Another important statement on behalf of Telecom is made by Peter Henry Gamble who was involved between July 1991 and September 1994 in a series of investigations and analyses of the claimant’s complaints. His overall conclusion was that during the period in question, the claimant’s service ‘… met appropriate performance levels and therefore appeared, in my opinion, to be operating satisfactorily’.” 

What would the arbitrator have put at this point in his award if he had known Mr Gamble’s opinion was based on information known to be false, including the fabricated September 1994 SVT tests

QUESTION 

On page 101 of this same Senate Hansard Report exhibit, Mr Pinnock notes

“Turning to what I regard as the benefits – firstly under the fast track arbitration procedure, the claimants had the significant benefit of Telstra effectively waiving any statutory immunity it may have otherwise been entitled to plead in legal proceedings.”

If Telstra were waiving their statutory immunity why, in Alan Smith’s case, on page 16 of the arbitrator’s award, at point (a), would the arbitrator note Telstra referred to statutory immunities, e.g.

“Statutory Immunities: In its defence documentation, Telecom makes reference to statutory immunities contained in the Telecommunications Act 1975 section 101 and the Australian Telecommunications Act 1989 section 30.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 314)

On page 127 of this same Senate Hansard Report Senator Boswell asks John Pinnock:

“Could Mr Schorer make a request that he wants disclosure of the documents?

Mr Pinnock – “Yes. As long as he can say, ‘I want the arbitrator to order Telstra to produce documents relevant to my arbitration’, he is entitled to make such an application. It would have to have some degree of specificity, obviously. The arbitrator is not going to be able, with confidence, to make an order that Telstra produce all relevant documents. One would need some boundaries to the request. However, the power has always been there. I might say, Senator, that in the early days when Mr Schorer and I were discussing this matter, we clashed very much on this point.”

Senator BOSWELL – “In what way

Mr Pinnock – “I put to Mr Schorer precisely what I put to the Senate committee today about the deficiencies of the FOI process. I said that I was of the strong view that applications for documents ought to be made under the arbitration procedures and, equally forcefully, Mr Schorer put to me that the CoTs had always been promised by all concerned that access to documents would be made and that the best way to do that was under FOI.

Senator SCHACHT – “I ask Mr Wynack: with all the requests that you have made to Telstra on FOI, have you felt that there has been any deficiency in your powers, even though it may be a belated process, to finally get the information that you need?

Mr Wynack – “I do not believe that there is any deficiency in our powers. I think that our extremely limited resources have limited the processes we can apply to investigations.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 315)

What Mr Wynack didn’t disclose to Senator Schacht, is that, on 22 April, 1997 he wrote to Telstra’s John Armstrong, Legal Directorate Office, stating

“I refer to your letter of 21 April 1997 to Alan Smith concerning the assessment of the amount of compensation payable to Mr Smith.

“I note with concern that you sent a copy of that letter to the TIO. Please inform me as soon as possible why you have made the TIO privy to what I understood to be a confidential process involving Mr Morgan, Telstra, Mr Smith and the Ombudsman.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 317)

It is clear from the content of Mr Wynack’s letter that John Pinnock was privy to confidential information that had nothing to do in his role as TIO.  Remember, Dr Hughes wrote to John Pinnock, on 21st June 1995 and attaching a letter from Alan Smith on 20th June 1995 confirming Telstra knowingly used flawed defence documents in Alan’s arbitration as we have shown throughout this website.

However, Dr Hughes 21st June 1995 letter of concern regarding this matter was only copied to Mr Pinnock and Telstra

It appears, from Mr Wynack’s letter of 22nd April 1997 and Dr Hughes’ letter of 21st June 1995, John Pinnock, Dr Hughes and Telstra had a three-way relationship that Mr Pinnock did not disclose to the Senate

4th October 1997:  John Wynack writes to Telstra regarding Alan’s FOI request of 18th October 1995 which has still not been fully responded to.  Mr Wynack asks Telstra to inform him “of the actions which Telstra has taken to ascertain the whereabouts of the specific the file which Ms Gill described as the ‘arbitration file’”. (AS-CAV Exhibit 181 to 233 - See AS-CAV 233)

8th October 1997:  The Hon Peter Costello writes to Alan

“I am quite seriously concerned about the allegations you make regarding the Telecommunications Ombudsman, Telstra Senior Management, the Arbitrators and the Resources Unit attached to the Arbitration. Any information you have of allegations of impropriety should be brought to the attention of Senator Alston and the Australian Federal Police.” (AS-CAV Exhibit 234 to 281 - See AS-CAV 234)

When Alan contacted the parties as suggested by Mr Costello, they all declined to become involved

23rd October 1997:  Senator Schacht’s office faxes Senator Ron Boswell the proposed terms of reference for the Senate Working Party, for their investigation into the COT arbitration FOI issues.  This document shows two lists of unresolved COT case FOI issues to be investigated:  five on Schedule A and 16 names of Schedule B.  Graham Schorer’s name is on Schedule A, while Alan Smith’s name is on Schedule B (GS-CAV Exhibit 258 to 323 - See GS-CAV 318-A). This list states:

“1.       The working party must develop a list (“List”) of all document which

• were reviewed by Telstra in the course of preparation of its defence;
• were brought into existence after Telstra prepared its defence, but which would in the opinion of Telstra’s solicitors have been reviewed by Telstra if it were preparing its defence today; or
• were lost or destroyed before Telstra prepared its defence, but which would in the opinion of Telstra’s solicitors have been reviewed by Telstra if they had been in existence at the time Telstra was preparing its defence,

including documents in relation to the:

• arbitration cases
• responses to requests under FOI; and
• appeals in respect of cases already decide

described in Schedule A to these terms of reference. 

• if the Working Party becomes aware of relevant case additional to those listed in the Schedule, or relevant documents, the Working Party will advise the Senate Environment Recreation, Communication and the Arts Legislation Committee in writing of these cases or documents and the reasons why the Working Party considers they are relevant. The Working Party will not proceed with any investigation of such additional cases or documents unless and until the Senate Environment, Recreation, Communications and the Arts Legislation Committee so agrees in writin
• the Senate Environment, Recreation, Communications and the Arts Legislation Committee reserves the right to amend the Schedules to this document.

It is important to point out in the heading of the Senate Schedule, the 16 other COT case names are shown in the Senate Schedule B as described below:

“Unresolved Matters, Including The Amount Of Settlement Offered Or Paid In Respect Of Persons Listed In Schedule B.”

Graham was told the five claimants in list A were to be investigated first, as they were to be used as a ‘litmus test’:  it would take too long to investigate all 21 cases, including the 16 on the B list, and that would impact on the privatisation of Telstra.  It has since been proved Graham never received anywhere near the number of FOI documents he should have received in response to his various FOI requests, even with the Senate Working Party’s involvement.  If the Government of an alleged democratic country couldn’t obtain documents from a Government-owned Corporation like Telstra, then what hope did any of the COT cases and the arbitrator have of obtaining documents?

IMPORTANT

Alan Smith travelled to Parliament House in Canberra before the A list was even formed and saw how shocked Mr Pinnock was when Graham Schorer introduced Alan to him during a breakfast meeting in the motel.  Alan believes his name was left off the A list as a direct result of his comment to Mr Pinnock (during this breakfast meeting) that he would, at last, be able to have the unlawful conduct by the arbitrator, Telstra and the resource unit properly addressed by the pending Senate investigation

Mr Pinnock could not risk a Senate investigation into Alan’s FOI issues, as that would have uncovered Mr Pinnock and Dr Hughes’ agreement, during January and February 1996, to hide the very same FOI issues from the Institute of Arbitrators and Graham Schorer’s Directions Hearing on 27th February 1997.  Mr Pinnock could not allow Alan Smith’s FOI issues to be investigated by the Senate because an investigation would show FOI documents Alan did not receive, during his arbitration, proved Telstra knowingly used flawed reports and test results to support their defence

24th October 1997:  John Pinnock writes to Ms Pauline Moore, Secretary Senate Environment, Recreation, Communications and the Arts Legislation Committee, noting:

“I refer to previous correspondence and discussions with the Committee’s Research Officer, Ms Ducker, concerning a series of questions put on notice by Senator Boswell and arising out of the Committee’s proceedings of 26 September 1997…” (AS-CAV Exhibit 234 to 281 - See GS-CAV 318-B)

“The COT Arbitration Procedures contain provisions relating to the confidentiality of the proceedings, which bind the parties. Those provisions also bind the Arbitrators, the Resource Unit, the Special Council and the TIO in my role as Administrator.

Please note: only Telstra and the COT claimants signed the Confidentiality Agreement.

Mr Pinnock also notes:-

“Accordingly, I ask that the answers given below to the questions on notice be treated as confidential by the Committee and not published:

1. In November 1995 I received correspondence from a COT member expressing concern about the Technical Resource Unit. The COT member:
   • expressed concern that the purchase by Pacific Star of Lane Telecommunications compromised the independence of the Technical Resource Unit;
   • stated that there were inaccuracies and biases evident in the Lane Telecommunications/DMR Technical Evaluation Report;
   • requested the Telecommunications Industry Ombudsman to dismiss the Resource Unit.
2. On 6 November 1995 I was advised by Steve Black of Telstra that Lane Telecommunications and Pacific Star had already worked together on several Pacific Star contracts in Queensland and Western Australia and for the Federal Government.” 

and at point 6, 8, 9 and 10

6. Apart from the evidence I gave to the Committee on 26 September 1997 concerning the purchase of Lane Telecommunications by Ericsson Australia. I have recently been advised by one of the Arbitrators (Dr Hughes) that he will be transferring his legal practice to Blake Dawson, Waldron, Solicitors. I am aware that that form is currently acting for Telstra in relation to a number of matters. Arrangements are being made to discuss with Blake. Dawson, Waldron any possible conflicts of interest. …

8. It is my recollection that I have never stated in person or by telephone to individual COT members and/or their representatives that the arbitration has failed.

9. Yes, from time to time I received complaints from foundation COT members, concerning a range of matters, including alleged non-compliance with the rules of the Fast Track Arbitration Procedure by Telstra and/or the Arbitrator and/or the Technical and Accounting Resource Unit. Identifying individual instances of complaints and detailing the response taken will require a huge amount of administrative resources in searching TIO files

10. Yes, I have refused to provide COT members with a copy of Telstra’s Preferred Rules of Arbitration. A copy of this document was not provided because it was of historical interest only, and the COT members did not advance any argument as to why it was relevant to their arbitration. A copy is provided for the information of the committee.

Mr Pinnock’s letters would take considerable time:  in this context, it is more useful to address specific statements, such as those pertaining to the non-compliance with the rules of the Fast Track Arbitration Procedure by Telstra and the arbitration units.  The situation regarding the financial unit is addressed in Alan Smith’s CAV Chronology of Events and elsewhere in this document.

Point 10 in Mr Pinnock’s letter is, however, most important and is addressed in the following list.

GS-CAV Exhibit 89 to 154(b) - See GS-CAV 153 is a letter dated 24th January 1994 from Mr Shelton of Minter Ellison to Dr Hughes, the arbitrator, noting:-

“Following our meeting on Thursday last, I now enclose revised Procedure for your consideration.

GS-CAV Exhibit 155 to 215 - See GS-CAV 171 is a letter dated 25th February 1994 from Mr Shelton to Dr Hughes, detailing amendments made to the Fast Track Arbitration Procedure by Mr Shelton.

GS-CAV Exhibit 155 to 215 - See GS-CAV 172 is an internal Telstra email dated 2nd March 1994 noting:

“My course therefore is to force Gordon Hughes to rule on our preferred rules of arbitration.”

GS-CAV Exhibit 155 to 215 - See GS-CAV 175, dated 22nd March 1994 is the transcript of a secret arbitration meeting attended by Telstra and their lawyers (Simon Chalmers and David Krasnostein from Telstra’s Legal Directorate), Dr Hughes (Arbitrator), Peter Bartlett (the TIO’s Special Counsel) and Warwick Smith (TIO).  The COT claimants were not represented and were not even aware of this meeting until late in 1998.  At point 2 in this transcript, Telstra notes:

“Mr Smith [the TIO] stated he would not endorse the rules as fair unless clause 10.2.2 repeated clause 2(f) of the Fast Track Settlement Proposal…

GS-CAV Exhibit 258 to 323 - See GS-CAV 319 is a copy of Telstra’s Preferred Rules of Arbitration, which was attached to Mr Pinnock’s letter to Ms Pauline Moore (see GS-CAV Exhibit 258 to 323 - GS-CAV 318-B).  With the exception of some minor cosmetic changes, this document is exactly the same as that allegedly drafted by Mr Shelton, proving Telstra’s threat to force Dr Hughes to use their preferred rules of arbitration, was no idle threat.

GS-CAV Exhibit 258 to 323 - See GS-CAV 320 is page two from the award Dr Hughes handed down on 11th May, 1995 in Alan Smith’s case.  In this document, at point (h), the arbitrator notes:-

“at my request, an arbitration agreement was prepared by Mr (now Judge) Frank Shelton of Messrs Minter Ellison and settled by Messrs Minter Ellison in consultation with me, Telecom and the four COT case members concerned;

It may be argued that Frank Shelton’s amended agreement was prepared collectively by Mr Shelton, Dr Hughes and the COT claimants and only included some clauses from Telstra’s preferred rules.  Although, it is clear that almost all of the amended FTSP agreement was based on Telstra’s preferred rules.  Page 9, point 8(a)(bb)(ii), was taken directly from the AUSTEL-facilitated Fast Track Settlement Proposal clause 2(f), i.e., “will make a finding on reasonable grounds as to the causal link between each of the Claimants claims and the alleged faults or problems”, which was also in Telstra’s preferred rules. (GS-CAV Exhibit 258 to 323 - See GS-CAV 319)

Did Warwick Smith and John Pinnock refuse to provide the COT claimants with a copy of Telstra’s preferred Rules of Arbitration because it would reveal Frank Shelton’s agreement was almost (except for some cosmetic changes) the same agreement as Telstra’s Preferred Rules (and that someone altered clause 10.2.2)?  Therefore Warwick Smith, the TIO, should have kept to his promise to withdraw his endorsement of the rules? (GS-CAV Exhibit 155 to 215 - See GS 175)

OR perhaps it was because Warwick Smith and John Pinnock were concerned the COT claimants and their advisors might compare Telstra’s FTSP rules, Minter Ellison’s Arbitration Agreement and the final FTAP Agreement Graham Schorer and Alan Smith signed, and discover yet another alteration was made to the version provided to Dr Hughes, so that Minter Ellison (as Special Counsel) and the two resource units (FHCA and DMR) were exonerated from any liability resulting from negligence or wrongdoing?

The original FTSP was originally based on the AUSTEL-facilitated commercial review (which was never intended to be a legalistic arbitration) and the TIO, Telstra, the TIO’s Special Counsel and the Assessor, Dr Hughes, were all involved to some degree in turning the commercial review into a highly legalistic and unworkable arbitration process.  After all this, Dr Hughes wrote to Warwick Smith on 12th May 1995, warning the TIO that the whole process was not credible and the TIO told the Senate on 26th September, 1997 that the arbitrator had NO control over the process.  This secret alteration to the Arbitration Agreement, either by Warwick Smith and Peter Bartlett alone, or with Dr Hughes’ assistance, took away the only life-raft the COT claimants had – the right to sue the Special Counsel, FHCA or DMR (Australia) for misconduct

Graham’s solicitor, William Hunt, showed concern in his file notes (see 8th December, 1997 below) because Mr Pinnock wouldn’t provide him a copy of Telstra’s preferred rules noting:

“Pinnock will not make available the first draft of the fast track arbitration procedure sent in early 1994 by the then TIO to Bartlett of Minter Ellison. Telstra has refused to make the first draft available under FOI. Schorer says Pinnock has a copy and made it available to the Senate on a confidential basis.

“Schorer is convinced that it will show a complete programme altering the intention of the fast track settlement proposal and commercial assessment which was the subject on the November 1993 arrangement

Please note: The Senator, who finally provided Graham with a copy of Telstra’s Preferred Rules, is not named here in order to protect his/her identity.

27th October, 1997:  Graham Schorer writes to John Wynack, attaching a letter dated 11th January, 1994 to AUSTEL from Telstra’s Paul Rizzio, Group Managing Director, Finance and Administration. (GS-CAV Exhibit 258 to 323 - See GS-CAV 321-A & GS-CAV 321-B).  In his letter, Graham provides Mr Wynack with evidence proving Telstra advised AUSTEL it would not provide documents for the COT claimants until the claimants formally entered the TIO-administered arbitration process.  Paul Rizzio’s letter, and letters to Warwick Smith.

The draft AUSTEL Report regarding Alan Smith, the Cape Bridgewater Holiday Camp and the local exchange was not released to Alan before or during his arbitration (although it was released to Telstra).  Alan finally received a copy in November 2007.  Even after Alan signed the Arbitration Agreement (which was one of the provisions under which the draft findings would be released), he still wasn’t provided with a copy of the draft.  If he had been correctly provided with a copy of the Draft Report before the end of his arbitration, (and if the arbitrator had seen it), the Arbitrator’s Award would have been quite different.

The letters from Telstra to AUSTEL and Warwick Smith state:

• “Information obtained from Telecom, in the course of AUSTEL’s regulatory functions, and relevant to any parties involved in a formal arbitration process with Telecom under the control of the Telecommunications Industry Ombudsman (TIO) will only be released after consultation with the TIO and Telecom.
• The AUSTEL draft report will be expedited to ensure that it is available at an early stage of the arbitration process.
• The AUSTEL draft report will be released to the parties involved in the fast track arbitration process for comment in accordance with a process agreed with the TIO, and only after each party has signed a formal document committing to keeping the contents of the report confidential and giving an undertaking not to comment either privately or publicly on the report until after it has been released publicly by AUSTEL.” (GS-CAV Exhibit 89 to 154(b) - See GS-CAV 136)

28th October, 1997:  Mr Pinnock writes to Ted Benjamin re Mr Alan Smith:  Dispute 1800 Charges, and notes:-

“For your information I enclose a copy of a letter received from Mr Smith.

“I would appreciate your detailed advice concerning call charges for Mr Smith’s 1800 line, in particular whether Telstra agrees that this matter was not addressed in Mr Smith’s arbitration.” (AS-CAV Exhibit 181 to 233 - See AS-CAV 212)

Alan has never seen a response to this letter, but Ted Benjamin wrote to AUSTEL’s Bruce Matthews on 11th November, 1994 confirming Telstra would address the billing faults raised by Alan Smith, in their defence of his claims lodged under the FTAP

Other correspondence provided to Mr Pinnock by AUSTEL on 3rd October, 1995 and referred to previously, shows he was advised Telstra had still not addressed the billing issues then, five months after Dr Hughes deliberated on Alan’s claim.  Telstra responded to AUSTEL’s letter on 16th October, 1995, again confirming that the 008/1800 billing issues were never addressed in Alan’s arbitration and also confirming Telstra was trying to address these same issues from Alan’s arbitration, including short duration and RVA calls, and fax faults in secret – outside the legal structure of the FTAP. (AS-CAV Exhibit 181 to 233 - See AS-CAV 213)

By AUSTEL allowing Telstra to address arbitration matters outside of the arbitration procedure, without giving Alan right of reply, has made a further mockery of the FTAP.  Was it unlawful, under the Victorian Commercial Arbitration Act, for the defendant Telstra to secretly address arbitration issues raised by a claimant outside the legal forum of the agreed-arbitration procedure?

Please note

In its attempt to convince AUSTEL Alan’s complaints about the billing issues were not valid, Telstra attached a Witness Statement to the 16th October, 1995 letter, which was originally signed by Ross Anderson, a local Portland technician on12th December, 1994 and attached it to Telstra’s legal submission provided to Dr Hughes.  Ross Anderson was the technician who collected Alan’s TF200 telephone from Alan’s premises on 27th April, 1994 – yet the phone did not reach Telstra’s laboratories until 10th May, 1994.  In Alan’s reply to Telstra’s Arbitration Defence, he provided evidence to the arbitrator that either Mr Anderson lied under oath, or his negligence as a technician attributed to the problems in the phone system. (AS-CAV Exhibit 48-A to 91 - See AS-CAV 73)  This raises another issue that has never been addressed – Telstra’s use of a tainted Witness Statement in an attempt to stop AUSTEL from further investigating Alan’s valid complaints

During this same period in October 1997, the Senate became involved and expressed outrage that Telstra had knowingly altered (blanked out) relevant sections of documents being supplied to the COTs under FOI.  Particularly in relation to Telstra’s Excel files that were being given to Alan, but which he had not sighted during his arbitration.  Under pressure from the Senate, Telstra provided some 200 previously unseen documents.  Commonwealth Ombudsman records support this

Alan prepared a report titled Telstra’s Falsified BCI Report, using many of the late received Excel files as support.  In 2016, eight copies of this report, along with supporting exhibits, were provided to members of Telstra’s Board.  As previously discussed, Technical Consultant Brian Hodge, BTech, MBA (BC Telecommunications) concluded BCI could NOT have generated the 13,000 (through the CCS7 system) because the unmanned Cape Bridgewater RCM could not facilitate this test call-trapping device

Fault data associated with Alan’s complaints should never have been withheld from him under the cloak of legal professional privilege.  Graham and Alan believe these few examples alone show how disadvantaged he was by not receiving the documents he should have received during his arbitration procedure.  If these documents had been provided, he would have had grounds to ask Telstra for Further Particulars

Put together the Excel files that Telstra didn’t supply under FOI or discovery, together with the documents that were not provided to DMR and Lane, by the TIO-appointed resource unit, and it is clear why Alan and Graham are still fighting for a correct assessment

This list of documents, produced by using Telstra’s schedules of Alan’s claim material (which it received from DMR and Lane), does not match up with the list of material Alan forwarded to arbitrator Dr Hughes for Telstra.  Alan matched these lists to his Telstra fax/phone account to determine which claim documents he faxed to Dr Hughes and which were then copied to Telstra under the agreed rules of supply and discovered Telstra did not receive at least 41 separate sets of information Alan faxed to Dr Hughes’s office.

Exhibit AS-CAV Exhibit 48-A to 91 - See AS-CAV 62-B confirms an arrangement existed between Telstra, Warwick Smith and FHCA, to vet arbitration documents prior to being delivered to Dr Hughes.

Telstra’s Arbitration Liaison Officer, Steve Black, wrote to the TIO Warwick Smith on 11 July, 1994 stating:-

“Telecom will also make available to the arbitrator a summarised list of information which is available, some of which may be relevant to the arbitration [sic]. This information will be available for the resource unit to peruse. If the resource unit forms the view that this information should be provided to the arbitrator, then Telecom would accede to this request.” (AS-CAV Exhibit 128 to 180 - See AS-CAV 179-B)

The statement, “If the resource unit forms the view that this information should be provided to the arbitrator”, confirms that both the TIO and Telstra were aware the TIO-appointed resource unit was assigned to vet most, if not all, the arbitration procedural documents en-route to the arbitrator.  If the resource unit decided a particular document was not relevant to the arbitration process, it would not be passed to the arbitrator or other parties.  This particular secret deal has been linked to further clandestine dealings.

Are we to assume that some of Alan’s 41 documents were vetted and then destroyed before reaching Dr Hughes?

Note: The TIO did NOT have the authority to introduce a separate deal into a process being conducted according to a written legal agreement.

Revisiting FHCA’s conduct

As previously discussed, on 6th December, 1995 Derek Ryan, Alan’s arbitration accountant from DMR Corporate, Melbourne, was so incensed with the inaccuracies in FHCA Financial Report that, without Alan’s knowledge, he wrote to Senator Alston to alert him to what Mr Ryan believed was a miscarriage of justice.  He notes:-

“The FHCA report was inaccurate and incomplete.  I have since been advised by a staff member of FHCA that a large amount of information was excluded from their final report at the request of the arbitrator.” (AS-CAV Exhibit 128 to 180 - See AS-CAV 177-A)

On 20th December, 1995 John Pinnock wrote to Mr Ryan refuting his allegations in his letter (AS-CAV Exhibit 128 to 180 - See AS-CAV 177-B).  Derek Ryan responds to Mr Pinnock, naming John Rundell as the FHCA person who advised of this incomplete report see (AS-CAV Exhibit 128 to 180 - See AS-CAV 178-B).

Also discussed previously, John Rundell wrote to Mr Pinnock on 13th February, 1996 stating:-

“I did advise Mr Ryan that the final report did not cover all material and working papers.” (AS-CAV Exhibit 128 to 180 - See AS-CAV 179)

Steve Black’s aforementioned letter to the TIO dated 11th July, 1994 appears to be relevant to most document issues being discussed here, i.e., FHCA altering reports, the removal of information from technical reports under the guidance of FHCA and the withholding of vital inter-procedural arbitration documents from Alan by FHCA.

Questions:

• What happened to the material Telstra supplied to FHCA, which, in FHCA’s opinion was not relevant to the arbitration?
• Why did Warwick Smith not advise Graham and Alan, prior to signing the Arbitration Agreements, that FHCA, as the Resource Unit, would be vetting material provided by the defence before it reached the arbitrator?
• Was it appropriate for Warwick Smith, as the Arbitration Administrator, to give FHCA technical priority over Graham and Alan’s own technical advisor George Close, as to what was of relevant technical importance and to be seen by the arbitrator, and what was not??
• Was FHCA’s involvement with the vetting of documents between Telstra, the claimants and Dr Hughes also related to why DMR and Lane’s list of Alan’s supposedly assessed claim documents were only added after they submitted their incomplete report as the Final Report?
• Is it usual in an arbitration process such as Alan’s, to have two incomplete reports (the FHCA financial report and the DMR and Lane report) provided to the claimant and their professional advisors for official written comment?

AS-CAV Exhibit 181 to 233 - AS 220 confirms FHCA wrote to Dr Hughes (copying the same to the office of TIO), on 2nd August, 1996 admitting to withholding a number of arbitration procedural documents from Alan Smith during his arbitration.  As can be seen from AS-CAV Exhibit 181 to 233 - AS 217, the TIO appeared concerned about this, but has never addressed this matter.

7th November, 1997:  John Pinnock again writes to Ms Pauline Moore, secretary to the Senate Environment, Recreation, Communication and the Arts Legislation Committee, noting:-

“I refer to your letter of 31 October 1997, seeking further advice, on behalf of the Committee, arising out of my answers to Questions on Notice. …”

“I also note that the Committee wishes me to identify any documents provided in response to questions from the Committee, that I request remain confidential and to provide reasons for my request. …”

“I set out my reasons for seeking confidentiality in relation both to information and documents supplied in that letter.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 321)

Question:

The TIO held his position as a privately funded ombudsman.  A substantial part of the funding for his position came from the party under investigation in the COT arbitrations.  His only role in the COT arbitrations was as administrator.  The arbitrations were supposed to have been conducted transparently according to the Commercial Arbitration Act 1984 (Victoria).  How could Mr Pinnock therefore ask that any information or documents ‘remain confidential’?

Alan Smith and Graham Schorer believe the Senate Environment, Recreation, Communication and the Arts Legislation Committee should be advised it has now been proved that:-

1. The TIO’s office knows – (at least in Alan’s arbitration, if not the other COT arbitrations) – the TIO-appointed Technical Resource and Financial Resource Units’ Reports either omitted important issues or were incomplete when they were provided to the claimant as if they were the Final Reports. The claimant was formally advised to respond to the incomplete versions of the reports, without being advised of the flaws in the reports.
2. The TIO’s Office and/or its Special Counsel were party to the removal of two important clauses from the Arbitration Agreement, after the agreement was provided by Dr Hughes’ office to Solicitors Hunt and Goldberg as the final agreement, for legal advice regarding whether or not Graham and Alan should sign the agreement.

The Senate Environment, Recreation, Communication and the Arts Legislation Committee should be required to provide all the documentation they received from the TIO’s Office between 1995 and 2000, regarding the COT arbitration process.

7th November, 1997:  Mr Pinnock writes to Ms Catelli, of the Department of Communications.  This letter is in response to Alan’s letter to the Minister alleging his arbitration wasn’t conducted in a transparent manner.  Mr Pinnock makes no reference to Dr Hughes continuing to arbitrate using an agreement he knew was not credible, but instead, advises he has “considered each and everyone [sic] of these various allegations which I have found to be without substance”. (AS-CAV Exhibit 234 to 281 - See AS-CAV 235) 

Important:

Mr Pinnock made this statement five weeks after he condemned the COT arbitration procedures to the Senate and the Minister’s Office, on 26th September 1997, and stated:-

“One of the potential deficiencies should have been obvious from the outset. This deficiency revolves around the vexed question of the best method of enabling the Claimants to obtain documents held by Telstra. For present purposes, it is enough to say that the process was always going to be problematic, chiefly for three reasons, firstly, the Arbitrator had no control over the process, because it was conducted entirely outside the ambit of the Arbitration Procedures.”

17th November, 1997:  Wally Rothwell, Deputy TIO, writes to Alan confirming Mr Pinnock wrote to Telstra on 28 October regarding charges related to his fax line. (AS-CAV Exhibit 234 to 281 - See AS-CAV 236)

21st November, 1997:  Graham writes to William Hunt:-

“Enclosed is a copy of the Preferred Rules of Arbitration Telstra provided to the then TIO, Mr Warwick Smith, on or before 12 January 1994, entitled “Telstra Corporation Limited – ‘Fast Track’ Proposed Rules of Arbitration”, plus an interesting letter.”

“When I have the time, I am going to check the Clauses and wordings of this document against the Clauses and wording in:-

1. the arbitration process mentioned in the AUSTEL letter of 18 November 1993 to Garms, Gillan, Smith and Schorer;
2. the “Draft” of the Fast Track Arbitration (FTAP) allegedly drafted by Sheldon of Minter Ellison forwarded to the C.o.T.s in early February 1994;
3. the Final Draft of the Fast Track Arbitration Procedure.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 322)

26th November, 1997:  Graham writes to John Pinnock

“Re: Dr Hughes’ transfer of practice to Blake Dawson Waldron creating potential conflict of interest. …”

“In order to protect my self interest, I can no longer support Dr Hughes being the Arbitrator in my arbitration against Telstra. …”

“As my arbitration has been declared, in effect, a “mistrial”, and the offer of professional mediation is on the Agenda, I agree to meet you and Telstra on Tuesday, 2 December 1997 to discuss this and the fall back positions to be adopted if it, for any reason, fails to produce resolution.” (GS-CAV Exhibit 258 to 323 - See GS-CAV 323)

Mr Pinnock removes Dr Hughes as Graham’s arbitrator.

Regarding Telstra’s non-compliance with the FOI Act, prior to and during the arbitrations, and their conduct (GS-CAV Exhibit 258 to 323 - See GS-CAV 318-A):-

1. In 1997, the Senate Environment, Recreation, Communications and the Arts Legislative Committee set up a Working Party to examine the COT arbitrations, with the assistance of the Commonwealth Ombudsman’s Senior Investigating Officer, Mr John Wynack. Even this intervention, by the Federal Government, could not force Telstra to supply all relevant FOI documents requested by Graham Schorer during this Senate investigation.  Therefore, what hope did Graham or any of the COT claimants have of acquiring the documents they were promised when they signed for arbitration?
2. On 26th September, 1997 Mr Pinnock advised the Senate Environment, Recreation, Communications and the Arts Legislative Committee:-

“In the process leading up to the development of the arbitration procedures – and I was not a party to that, but I know enough about it to be able to say this – the claimants were told clearly that documents were to be made available to them under the FOI Act.”  (GS-CAV Exhibit 258 to 323 - See GS-CAV 312-A, also see GS-CAV 311)

Even after this statement, still no public investigation was conducted into how Telstra (a Government-owned Corporation during Graham Schorer and Alan Smith’s arbitrations) were able to control the arbitration process to their benefit and the claimants’ detriment.

1. With all this information before them, why did the Federal Government condone the hiding of these FOI/arbitration matters, under the cloak of in-camera Senate Hansard privilege?
2. If the Senate Working Party found nothing wrong with how the COT arbitrations were conducted, why did Senator Alan Eggleston, (Chair of the Senate Environment, Recreation, Communications and the Arts Legislative Committee), write to Alan Smith, on 16th August 2001, to warn him that he could be charged under the Parliamentary Privacy Act if he exposed in-camera Senate Hansard reports on the Senate Working Party’s investigation into the Telstra COT FOI arbitration matters?
3. Why is the Commonwealth Ombudsman’s Report, prepared by John Wynack in relation to the Senate Working Party, being withheld from public scrutiny? What is in Mr Wynack’s Report, that caused the Coalition Government to classify it as parliamentary privileged?
4. How can the TIO’s Office continue to maintain their TIO-administered COT arbitrations were conducted lawfully and transparently even when the Government of the day had to cover their Hansard reporting of 6th and 9th July, 1998 regarding the COT arbitration fiasco, as in-camera privileged information?

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