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Chapter One - Prior to Arbitration

Absent Justice - Prior to Arbitration

TIO Evidence File No 3-A is an internal Telstra email (FOI folio A05993) dated 10 November 1993, from Chris Vonwiller to Telstra’s corporate secretary Jim Holmes, CEO Frank Blount, group general manager of commercial Ian Campbell and other important members of the then-government owned corporation. The subject is Warwick Smith – COT cases and it is marked as CONFIDENTIAL:

“Warwick Smith contacted me in confidence to brief me on discussions he has had in the last two days with a senior member of the parliamentary National Party in relation to Senator Boswell’s call for a Senate Inquiry into COT Cases.

“Advice from Warwick is:

Boswell has not yet taken the trouble to raise the COT Cases issue in the Party Room.
Any proposal to call for a Senate inquiry would require, firstly, endorsement in the Party Room and, secondly, approval by the Shadow Cabinet. …
The intermediary will raise the matter with Boswell, and suggest that Boswell discuss the issue with Warwick. The TIO sees no merit in a Senate Inquiry.

“He has undertaken to keep me informed, and confirmed his view that Senator Alston will not be pressing a Senate Inquiry, at least until after the AUSTEL report is tabled.

“Could you please protect this information as confidential.”

Exhibit TIO Evidence File No 3-A confirms that two weeks before the TIO was officially appointed as the administrator of the Fast Track Settlement Proposal FTSP, which became the Fast-Track Arbitration Procedure (FTAP) he was providing the soon-to-be defendants (Telstra) of that process with privileged, government party room information about the COT cases. Not only did the TIO breach his duty of care to the COT claimants, he appears to have also compromised his own future position as the official independent administrator of the process.

Perhaps the advice the TIO gave to Telstra’s senior executive, in confidence, (that Senator Ron Boswell’s National Party Room was not keen on holding a Senate enquiry) later prompted Telstra to have the FTSP non-legalistic commercial assessment process turned into Telstra’s preferred legalistic arbitration procedure, because they now had inside government privileged information: there was no longer a major threat of a Senate enquiry.

Telstra management was trying to force COT members into court, well aware that their highly paid lawyers would eat us alive. We became increasingly sure that this was their plan, and indeed, our suspicions were confirmed, years later, by some extraordinary documents which belatedly came our way.

On 3 June 1993, because of my constant complaints to the regulator, including incorrect charging, Telstra’s network investigations department was finally involved and, for the very first time, Telstra investigators were sent to Cape Bridgewater. At last, I thought, I would be able to speak directly to people who knew what they were talking about and find the underlying cause of the issue. However, the two Telstra senior technicians from Melbourne told me nothing I hadn’t heard before. With nothing resolved, they finally prepared to leave and head back to town.

The important documents left in that briefcase provided evidence that discussed the manner in which they settled with me in December 1992. Telstra had known that major faults still existed in their network at the time of the settlement (see Main Evidence File No 26 for example) but they did not disclose this to me during the settlement process. The documents quickly exposed that Telstra were fully aware their inadequate service and the major communication problems were affecting the viability of my business endeavours.

The use of misleading and deceptive conduct such as this in a commercial settlement such as mine contravenes Section 52 of the Australian Trade Practices Act. Yet this deception has never been officially addressed by any regulatory body. To get ahead of my story here, even the arbitrator who handed down his award on my case in May 1995 failed to question Telstra’s unethical behaviour.

I took this new information to AUSTEL, and on 9 June 1993, AUSTEL’s John MacMahon wrote to Telstra regarding my continuing phone faults after the settlement, and the content of the briefcase documents:

“Further he claims that the Telecom documents contain network investigation findings which are distinctly different from the advice which Telecom has given to the customers concerned.

In summary, these allegations, if true, would suggest that in the context of the settlement Mr Smith was provided with a misleading description of the situation as the basis for making his decision. They would also suggest that the other complainants identified in the folders have knowingly been provided with inaccurate information.

I ask for your urgent comment on these allegations. You are asked to immediately provide AUSTEL with a copy of all the documentation which was apparently inadvertently left at Mr Smith’s premises for its inspection. This, together with your comment, will enable me to arrive at an appropriate recommendation for AUSTEL’s consideration of any action it should take.

As to Mr Smith’s claimed continuing service difficulties, please provide a statement as to whether Telecom believes that Mr Smith has been provided with a telephone service of normal network standard since the settlement. If not, you are asked to detail the problems which Telecom knows to exist, indicate how far beyond network standards they are and identify the cause/causes of these problems.

In light of Mr Smith’s claims of continuing service difficulties, I will be seeking to determine with you a mechanism which will allow an objective measurement of any such difficulties to be made.”

I can only presume that Telstra did not comply with the request ‘to immediately provide AUSTEL with a copy of all the documentation which was apparently inadvertently left at Mr Smith’s premises,’ for on 3 August 1993, Austel’s General Manager, Consumer Affairs wrote to Telstra requesting a copy of all the documents in this briefcase that had not already been forwarded to AUSTEL. (See Arbitrator File No 61)

I sent off a number of Statutory Declarations to AUSTEL explaining what I had seen in the briefcase.

How blithely he omitted any reference to vital evidence which was withheld from me during their negotiations with me regarding compensation.

The Establishment 

While it is clear the Australian Establishment saw him as a shining light because he was protecting the assets of the then Government-owned telecommunications carrier, and therefore protecting the public purse and so creating an outcome for the good of all Australians, what that arbitrator, and the Government, have never wanted to acknowledge is that when Dr Hughes bent the law to protect Telstra and its shareholders it actually meant that the rule of law was breached. Telstra, the TIO who was also the administrator of the arbitrations the arbitrator, used their position to bluff those interested government ministers of seeing a just outcome to all of the COT arbitrations including, the media into believing that the services once investigated during the arbitration process once an award had been handed down by the arbitrator that service was now operating efficiently and effectively. When this was disputed or fought in any way by the claimant then it was Telstra, the TIO and the arbitrators policy to fight the accusations for as long as possible to tire and eventually wear down the claimant. In my own case, it is shown in Bad Bureaucrats that over a six year period after my arbitration and no one would investigate my complaints of ongoing unaddressed arbitration faults I reluctantly sold the business in December 2001, to the Lewis family. Their seven year unsuccessful  attempt to have the problems fixed is scattered throughout our story.

To present this statutory declaration in some sort of chronology of events we need to begin before April 1994, when the appointed commercial assessor decided, with the first TIO and the defendants (Telstra), to turn the commercial assessment, FTSP, into a highly legalistic arbitration process. Telstra’s lawyers controlled at least 33 of Australia’s largest legal firms and most, if not all, of Australia’s technical resource units (see Senate Hansard for 24 June and 26 September 1997). By using Telstra’s drafted arbitration agreement, faxed to the TIO on 10 January 1994, Telstra had their foot in the door to control the whole arbitration process. Later, Dr Hughes alerted the TIO, in his letter of 12 May 1995 (see Open Letter File No/56-A), that they were duped by Telstra into using an agreement that did not allow enough time for the:

“inevitable delays associated with the production of documents, obtaining further particulars and the preparation of technical reports”.

The only choice these two lawyers should have had was to admit they misled and deceived the four COT cases, the claimant’s lawyers and many of Australia’s government ministers, including the Canberra Parliament House press gallery, into believing the arbitration agreement was totally prepared independently of Telstra, when this was far from the truth, as they both knew. Instead, they decided to conceal, what they had done and by doing so they have stolen 22-years of our lives.

On the 18 November 1993, this same Chairman would not confirm this assurance in writing because, he explained, it could set a precedent. Telstra’s Corporate Secretary had written to him on 18th November 1993 (FOI D01274 to D01276, pointing out that:

“(3) Telecom does not accept the COT Cases’ grounds for reviewing the earlier settlements. However, on the basis of a denial of liability and without any legal obligation to do so and purely as a matter of good faith and business expediency, Telecom is prepared to agree to the above mentioned review.

(4) This proposal constitutes and offer open to all or any of the COT Cases referred to in Clause (1) (a), which will lapse at 5 pm Tuesday 23 November 1993. This offer may be accepted by signature below and sending advice of such signature to AUSTEL or the Telstra Corporate Secretary before that time.”

On the 23 November Graham Schorer, Ann Garms, Maureen Gillan and I signed the FTSP, trusting in the Regulator’s verbal assurances that consequential losses would be included. These signed FTSP agreements were forwarded to Telstra’s corporate secretary. Alan included a letter with his agreement, clearly putting his expectations of the process:

“In signing and returning this proposal to you I am relying on the assurances of Mr Robin Davey, Chairman of Austel, and Mr John MacMahon, General Manager, Consumer Affairs, Austel, that this is a fair document. I was disappointed that Mr Davey was unwilling to put his assurances in writing, but am nevertheless prepared to accept what he said.

It goes on to say:

I would not sign this agreement if I thought it prevented me from continuing my efforts to have a satisfactory service for my business.  It is a clear understanding that nothing in this agreement prevents me from continuing to seek a satisfactory telephone service.”

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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

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

Senator Carr

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

Sister Burke

“…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

“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

“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

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

– Edmund Burke