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Consumer Affairs Victoria Report Introduction

Please note

While Alan Smith (me), the author of absentjustice.com, does not for one moment believes the average person reading CAV, 1, 2 and 3 will read even five per cent of what is written below, it was compiled for one reason which is, the Barrister for Consumer Affairs Victoria (CAV for short) 2007after first being told in the company of an ex-very senior Victorian police officer, Graham Schorer and me that Graham and I could provide evidence that legal Supreme Court documents, arbitration-related documents and Senator COT Cases related hacked documents (screened by Telstra's legal and arbitration defence managers before being redirected on to its intended destination. And that this practice was down with the sole aim of gaining an advantage of Telstra's opposition, the Barrister asked me to provide that evidence to the CAV. What is discussed below was provided to the CAV after they asked me to compile it. We have submitted CAV1,2, and 3 as a further testament that I have tried every conceivable legal way to have my valid claims assessed and below is just another example.

Accessing the evidence

When this manuscript telling the COT story was first contemplated (see Absent Justice My Story), it quickly became clear that it would be very difficult to believe that a saga like this could continue for twenty or so years, in a democracy like Australia, but there are untold numbers of official documents that prove the truth of the story, every step of the way and copies of those actual documents are included throughout the book. The documents help explain the frustration that the COTs have had to deal with for all those years.  When the arbitration process was first suggested, the COTs, who would officially be ‘the complainants’, expected a qualified arbitrator, an ombudsman who would search for the truth. Unfortunately, those expectations couldn’t have been further from reality!

Back in 2007, before Graham Schorer (Golden Messenger – Courier Service) and Alan Smith (Cape Bridgewater Holiday Camp) ever thought of putting their story into a book, they began to compile a database to record the thousands upon thousands of documents they were collecting, and, since then, between them, they have completed eight separate, detailed reports, each one with a multiple of supporting documents.  Four of those reports are directly related to Graham (GS) and Alan (AS), and four are related to other people who were involved in the COT saga, e.g. various public officials, the TIOs’ office and a number of government ministers.  As the process of putting their story into a publication the reader could clearly understand, it became clear that this was going to be even more complex than anyone had expected and, so that Graham and Alan could be positively sure of the facts, they also set up a separate database to keep track of all the people who were important to their cases. Each individual record in this database includes a separate document describing how that person is connected to the COT story, a list of their professional qualifications and at least one FOI or other official document related to each individual.  That profile database now covers 171 individuals.

The same simple document numbering system is used throughout our reporting; any document referred to by a number preceded by GS relates to Graham, and anything preceded by AS relates to me.  If ‘CAV’ is included after those initials, this indicates that the documents are filed in our main database under ‘Consumer Affairs Victoria.

All the main statements made in our story are supported by Exhibit documents which have been transferred onto the CD which has been enclosed with our story.  Each entry in our story (e.g. GS 1 etc.) refers to an Exhibit with the same number (e.g. Exhibit 1 supports entry CAV GS 1) and the Exhibits on the CD are divided into separate website links > GS-CAV 1 to 88 – GS-CAV 89 to 154-A – GS-CAV 155 to 215 – GS-CAV 216 to 257 and AS – CAV 1 to 47 – AS-CAV 48-A to 91 – AS-CAV 92 to 127 – AS-CAV 128 to 180 etc

We have recorded at least ten lines and sometimes three-quarters of a page of information for each person and supported that information with at least one FOI or other document related to each individual we researched.  That profile database now includes 182 individuals. We have decided to detail this research and record-keeping as a testament to the amount of work that has gone into preparing our final story.

Although we originally planned to produce this story as just that a story, we quickly found that the details are easier to follow if they are sorted into separate topics and in date order because each of those individual topics has been spread out over many years.  The topics we have chosen include, among others, the general deception and corruption that contaminated the TIO administered arbitrations; the illegal interception of many documents legally submitted to the arbitration by the claimants; the details of documents that were lodged with the arbitration but never addressed or referred to in the awards; discovery documents that were requested under the agreed process of the Freedom of Information Act but were either not supplied, supplied in part format, wrongfully withheld under legal professional privilege and/or defaced/blanked out rendering the document illegible, undecipherable and documents that were apparently somehow lost in the fax system and therefore never reached the arbitrator.  Taken together, these topics all contributed to the end result – an entirely undemocratic arbitration process.

It is most important for the reader to understand how difficult it has been to write an unbelievable story for who in their wildest dreams would truly believe lawyers, not just one lawyer, but many would go against the teachings they agreed to abide by when at university when they were studying to become lawyers. Who, even though it has become clear from the many corruption scandals that have shaken the very foundation of State and Federal Parliament in 2013 that as they go through this story, they will observe that any matter of importance in Alan’s story and/or in the Graham Schorer addendum Conflict of Interest segment at the conclusion of this story is supported by evidential material which can be accessed from the accompanying CD as discussed aforementioned above.

When Graham signed his 1999 Deed-of Release, he was not aware that the Telstra Corporation and the Government Communications Regulator had withheld their knowledge that Graham’s claim had already been substantiated by the Australian Government Solicitor in 1990. This meant that Telstra and the Communications Regulator deliberately chose to let Graham go through an expensive and complicated arbitration process by choosing not to pass on the information that it was secretly known that his claim was valid.  This led to Graham wasting a further NINE years of his life as he attempted to prove something that the Government regulator AUSTEL had already proved to be true, which is really mind-blowing on its own but then, in 1999, after this facade had been executed, he was forced, under threat, to accept less than 30 per cent of his arbitration claim, and he was denied reimbursement of the costs that this facade had cost him; this goes well beyond all reason.

When Graham signed this Deed of Release, he also agreed that he would not continue any further claims against Telstra, and so before we tell the rest of Graham’s terrible story, we want to be 100% sure that we can expose what Telstra and the government communications regulator collectively did to thwart the justice Graham has been denied.  This is why we are now in the process of seeking legal advice from the current Government in relation to whether Telstra was actually allowed to conceal such important information from the arbitrator before Graham signed the arbitration agreement in an attempt to prove what the Australian Government Solicitors had already proved, i.e. that Graham’s case was completely justified, and that there was, therefore, no need for him to prove again what had already been officially proved and accepted.

After the Government Communications Regulator’s 1993 and 1994 investigation into Graham’s communications complaints had uncovered what Telstra had been concealing from Graham for more than three years, and the Regulators themselves ALSO concealed this fact from Graham, both before and during his arbitration, well that is truly beyond contempt.

It is these issues that, in September 2018, we are currently seeking legal advice about before we continue on with Graham’s story.

Was the concealment collusion?

COT Case Graham Schorer shows in our Open Letter File No/35 link 20130627133948062. that, although the Australian Government Solicitor (AGS) warned Telstra that Graham Schorer (COT spokesperson), of Golden Messenger Courier services, had a valid claim against them for misleading and deceptive conduct under section 52 of the Australian Trade Practices Act and advised Telstra should settle with Mr Schorer, Telstra ignored the AGS. For the next NINE years, Telstra went on a deliberate campaign to destroy Mr Schorer’s credibility and his finances even though they knew the AGS was right.

On age 23 of the government communications regulatory draft findings on Golden Messenger (see 20130627133948062: it notes:

“Telecom Minute of 30/3/88 states that advice from Legal and Policy Headquarters indicate that Golden Messenger appeared to have a case against us…and…the Australian Government Solicitor had advised Telecom that Golden Messenger is likely to be successful in establishing that Telecom engaged in misleading and deceptive conduct contrary to the Trade Practice Act and that consequence of lost calls or calls not getting through was likely to lead to an immediate loss of business in relation to that call and potential loss of future business from the customer”.

Exhibits 20111025143553046 and 20130627133948062. were not released to Graham until October 2008, fourteen years too late to be used in his arbitration or during the Senate Estimates Investigation into why relevant documents were being withheld from Graham during his arbitration. In other words, if AUSTEL had provided their adverse findings against Telstra to Graham and the Senate Estimates Committee during that 1997/1999 Committee investigation, it would be fair to say that the Committee would have immediately ensured that Telstra didn’t pressure Graham into accepting compensation of only 33% of his arbitration claim and that 33% did NOT include the thousands upon thousands of dollars Graham had wasted on legal fees to prove something that the government regulator had already proved.

What is clear from the above and the evidence on this website is that when AUSTEL (now ACMA) Pen Pusher Powerful - Bureaucrats on behalf of the Australian government concealed their true findings against Telstra, they breached their statutory obligation to Graham as a citizen of Australia in the most deplorable manner. Why wasn't this terrible situation rectified in November 2007, when this evidence surfaced?

Stretched to the limit 

The Telstra briefing note in  Chapter 3 - Conflict Of Interest  shows, at point 5 that the Australian Government Solicitor on behalf of Telstra wrote to Graham’s legal advisors instructing them “not to disclose to their client [Graham Schorer] or other the content of the report on the North Melbourne Exchange”. It is important to note the author of this exhibit later became chair of the Telecommunication Industry Ombudsman board: the same TIO office that administered the COT arbitrations.

This shows that people holding a higher level of service within Australia’s telecommunication industry are fully aware of how the system took Graham’s business life, destroyed it and then sat by while he was forced to spend hundreds of thousands of dollars in legal fees in a process that lasted for FIVE GRUELLING YEARS in proving his claim, while fully aware his claims were proven correct by none other than the Australian Government Solicitor and the government communications regulator. Even worse is that the receiver of the briefing note copied this briefing note to a person in another department in Telstra and noted:

“It would appear that any concerns over the disclosure of the adverse report on the North Melbourne Exchange can now be set to rest as it will not be released until point (5) has been complied with.”

This point 5 is point 5 in the enclosed briefing note that confirms Graham’s lawyers were actually being threatened by the Australian Government Solicitors not to disclose this North Melbourne Exchange report to their client, Graham.

Of course, Dr Gordon Hughes, one of the lawyers being threatened, later became the COT arbitrator four years after this event. Amazingly, Dr Gordon Hughes never openly disclosed to the COT cases his prior involvement in this Telstra matter nor the threats made by the AGS.

While this conflict of interest matter is alarming enough, equally alarming is that the receiver of Chapter 3 - Conflict Of Interest  exhibit is also the author of this briefing paper at An injustice to the remaining 16 Australian citizens see bottom of the page under the heading Conflict of Interest. This same person (Peter) was also named in the Senate estimates on 24 June 1997, by a Telstra whistleblower, as advising him that the first five COT cases (naming Graham as one of the five) had to be stopped at all cost from proving their claims see Senate – Parliament of Australia.

This same person (Peter), therefore, knew full well that Graham’s arbitration claim had already been proved to be valid by none other than the Australian Government Solicitor, but still Graham’s arbitration went ahead, as soon as he had formally signed for the Fast Track Settlement Process on the 23 November 1993.  Then, because no one told Graham at the time that his claims were actually accepted as valid, the tormenting, legalistic process continued, without respite, until April 1999. It is impossible to even begin to calculate the damage this caused to Graham’s life, both for his business life and for his private life, mentally and physically, as he was forced to live through so many years with this stress constantly mounting. Those within the Telstra Corporation, and within the Government communications regulatory department, who stood by and allowed this stressful process to drag on for more than five long years, while they all knew that Graham was right and Telstra was wrong, should be charged for Crimes against humanity, which is defined as ‘certain acts that are deliberately committed as part of a widespread or systematic attack or individual attack directed against any civilian or an identifiable part of a civilian population.’ (See Crimes against humanity – Wikipedia).

The first Peter on page 39 in the Senate – Parliament of Australia is the ex-Telstra employee who lied under oath in his witness statement provided to the arbitrator hearing my case (see Telstra Falsified SVT Report). Amazingly, the Telstra executive Ted Benjamin names on page 39 of this report was also a TIO council member, who admitted to the following Senate Estimates hearing on 26 September 1997 (see page 109 > COMMONWEALTH OF AUSTRALIA – Parliament of Australia) as not disclosing his conflict of interest when attending TIO council meetings where COT case issues were discussed, fed privileged TIO council-discussed material to fellow Telstra executives as the following exhibit > TIO Council Conflict of Interest 30 Nov 1993 shows. A detailed explanation of this damning exhibit can be read by clicking onto Chapter One Telecommunication Industry Ombudsman).

As far as the COT cases receiving their basic legal rights as claimants during their TIO-administered arbitrations, that right was NEVER afforded them see page 99  COMMONWEALTH OF AUSTRALIA – Parliament of Australia by the Commonwealth who originally endorsed our arbitrations.

Letter to the Prime Minister 

In Alan’s letter of 28 October 2013 to the Hon Malcolm Turnbull MP, Federal Minister for Communications (AS 1052), he noted:

“I am sure that you, as a very smart lawyer, will be able to see, once you have read the enclosed document addressed to Dr Hughes and Mr John Rundell titled Alan Smith – Characterisation of misconduct summary October/November 2013, and the Exhibits on the enclosed CD that my claims are not frivolous and I am not a vexatious litigant.

As you would know, the Commissioner’ in both the Fitzgerald and Justice Woods Royal Commissions clearly specified that it was totally unacceptable for police divisions to be allowed to investigate allegations of misconduct within those divisions. These two Royal Commissions, including the Independent Commission Against Corruption and the Australian Crime and Misconduct Commission, further confirm that what the first TIO allowed to happen during the COT arbitrations should NEVER have been tolerated, in any sense of the word. It is alarming enough to learn that TIO allowed Telstra (the defendants) to attend monthly TIO Board and Council meetings when COT arbitration issues were  discussed (see Senate Estimates Committee Hansard dated 26 September 1997), and  brokered a secret deal with Telstra so that the TIO’s Arbitration Resource     Unit would be given the power to decide which documents the arbitrator would see during the arbitration and which would be concealed but there were other, similarly appalling events that the TIO appeared powerless to stop taking place during my arbitration.

On 12 February 2014, the Hon Malcolm Turnbull wrote to Mr Daniel Tehan MP, Federal Member for Wannon (AS 1025), noting:

“I refer to your correspondence dated 6 December 2013 on behalf of Mr Alan Smith concerning consumer issues. Mr Smith has contacted this portfolio on a number of occasions in relation to various issues, which have been previously considered by the Department of Communications. These matters were first raised in 1988 and over the last 20 years all avenues for consideration both within Telstra and the Government have been exhausted.

As there is no new information raised in the correspondence from Mr Smith, I am unable to provide further assistance in this matter”.

This letter is a perfect example of the sort of merry-go-round that I have been dealing with for more than twenty-two years, a situation that has been solely created by the Australian Government and their minders, even though these minders know that my claims are valid.  An important issue that is not discussed in the Malcolm Turnbull letter is that although Mr Turnbull’s minders, who are all public servants, know that someone with access to the government carriers networks hacked into and screened faxes travelling to and from the premises of the COTs and their lawyers and advisors, and even Mr Turnbull’s minders know that if this screened confidential material was then passed on to the defendants (who owned the network), it would have provided them with an advantaged gained illegally. And yet Mr Turnbull’s minders are still prepared to say that: “… all avenues for consideration both within Telstra and the Government have been exhausted”.  Is the author of Mr Turnbull’s letter actually implying that it is OK for the previous defendants in the arbitration to investigate themselves for hacking into the claimants faxed claim material during those arbitrations to which those defendants were party?  How can Mr Turnbull suggest that a self-investigation legitimately proves that the previously owned government telecommunications carrier has no case to answer when my Exhibits in our Main Evidence File No 7 & 8) prove that this hacking did take place?  We have to go no further than the Murdoch News of the World hacking scandal in the UK to find answers to those questions because surely neither the British public nor the British Government would ever have allowed the Murdoch’s to investigate their own hacking? And yet, here in Australia, the Government simply accepts whatever this Corporation says as fact, without question.

When the Hon Malcolm Turnbull signed his 12 February 2014 letter, including his comment that: “… all avenues for consideration both within Telstra and the Government have been exhausted”, did he not remember his own involvement as a lawyer in the famous Peter Wright Spycatcher trial (Mr Wright was a former Assistant Director of M15)?  Since Mr Turnbull had once been a qualified, practising, leading Barrister in cases such as the Spycatcher trial, surely he would know that the Telstra’s destruction of evidence needed in a legal proceeding was a serious crime, so why has he allowed Telstra to investigate themselves in relation to my claims?

In October 2007, after meeting with two reliable witnesses and me, Consumer Affairs Victoria (CAV) asked that I prepare the evidence supporting my claims in the manner currently presented in absentjustice.com (CAV folder files, AS CAV and GS CAV). Peter Hiland, Consumer Affairs Victoria (CAV) senior barrister, read much of my submission. He then asked one of the witnesses – a very prominent ex-senior member of the Victorian police who had held the position of commander, as well as the Order of Australia – for the same evidence to be provided on a CD so as CAV members could appreciate the true extent of the cover-up that transpired before, during and after the COT arbitrations. I, of course, created the CD because Mr Hiland clearly remarked that, as a barrister serving with the Victorian government, he had been waiting for this type of evidence for more than a decade. However, over the next 18 months, the investigation folded, and my advisor and I were told the government was no longer interested. I raise this CAV issue because, in 2008, I submitted the same evidence, still titled AS-CAV and GS-CAV, to the Australian Communications and Media Authority in order to gain further Freedom of Information documents from the Australian government through the office of the Administrative Appeals Tribunal. In this way, the evidence on this website absentjustice.com has been in the public domain since 2007 and in front of three government agencies; not one of those agencies refuted my CAV evidence. In fact, transcripts, dated 3 October 2008, show Mr GD Friedman, senior member (judge), upon hearing my Administrative Appeals Tribunal case No V2008/1836 (after reading my 169-page Statement of Facts and Contentions describing the relevance of my CAV evidence, stated:

“Let me just say, I don’t consider you, personally, to be frivolous or vexatious – far from it.

“I suppose all that remains for me to say, Mr Smith, is that you obviously are very tenacious and persistent in pursuing the – not this matter before me, but the whole – the whole question of what you see as a grave injustice, and I can only applaud people who have persistence and the determination to see things through when they believe it’s important enough.”

Please note: for the purpose of this report, I have continued to refer to myself as either Alan Smith or Alan.

A number of government agencies seem to have been complicit in a cover-up of Telstra shortfalls. For well over 20 years, Alan and Graham Schorer (COT spokesperson) have been attempting to get Telstra to take responsibility for financial losses that businesses incurred due to faulty telephone and fax lines.

Cape Bridgewater Holiday Camp – Golden Messenger 

Alan believes the skills he gained during his time at sea and working as a chef and steward, together with experience accumulated during many and varied catering jobs, provided him with a good base on which to build his own business.

Before Alan moved to Cape Bridgewater, and for the first three months after he moved there, he visited many Victorian metropolitan and country schools, including the Wimmera and south-west regions, Geelong and Warrnambool, and distributed 2,000 brochures about his camp.  The camp coordinators at these schools were most interested in the package he presented.

After opening the business with all the promotional time and effort noted above, Alan was surprised to find that he was not receiving the number of enquiries he expected.  Particularly since many prospective customers indicated they would phone as soon as they checked available dates, etc.  Alan wondered if this lack of incoming phone enquiries meant there was a problem with the phone lines?  A number of friends soon confirmed this, telling Alan and his wife, Faye, that they were receiving constantly engaged signals or, alternatively, a phone message saying that his phone was disconnected.

Alan’s FOI and discovery issues caused severe problems, not only for Alan but also for the arbitrator, which meant that Alan’s matters were arbitrated on the arbitrator only had limited material in which to use to make a determination on Alan’s claim. John Pinnock (administrator of Alan ’s arbitration) addressed the Senate on 26th September 1997, saying.

“… it is enough to say that the process was always going to be problematic, chiefly for three reasons. Firstly, and perhaps most significantly, the arbitrator had no control over that process, because it was a process conducted entirely outside the ambit of arbitration procedures.”

The Arbitration Agreement Alan signed on 21st April 1994 states:-

10.2:    “In relation to the Claimant’s loss, the Arbitrator:

10.2.1:   will take into account the Claim and Defence Documents, any Reply and supporting documents, written evidence and submissions made by the parties and, if applicable, any sworn or affirmed oral evidence presented to the Arbitrator by the parties to the arbitration together with any information obtained by the Resource Unit or any advice given to him by the Resource Unit.

10.2.2: 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 of telecommunication services and the losses claimed and, as appropriate, may make reasonable inferences based upon such evidence as is presented by the parties together with any information obtained by the Resource Unit or any advice given to him by the Resource Unit. Unless the Arbitrator is able to conclude that Telecom caused the loss claimed, there will exist no basis for a claim against Telecom.

11. The Arbitrator’s reasons will be set out in full in writing and referred to in the Arbitrator’s award.”

No written finding was ever made by the arbitrator or the TIO-appointed technical consultants as to the validity of Alan’s arbitration claims or whether they believed Telstra rectified the problems and faults, Alan raised in his arbitration.

 

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

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

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

ABSENT JUSTICE HAS IT ALL.

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

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

Hon David Hawker MP

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

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

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

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

Cathy Lindsey

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

Sister Burke

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

The Hon David Hawker MP

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

Sister Burke

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

Senator Carr

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

– Edmund Burke