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Chapter Six - No findings on lost claim documents

No findings on lost claim documents - 12 May 1995 Letter

Although the arbitrator agreed to investigate our claims of phone and fax interception, his official findings contained no reference to the matter.

Confidential faxes, intercepted during the arbitration, included faxes to our lawyers and advisors and various senators who were trying to help us. Some critical faxes, both incoming and outgoing, which could have changed the outcome of the arbitration went missing, in transit. I used Telstra’s own data to show that at least six of the arbitration claim documents that I faxed to the arbitrator’s office, never arrived for his assessment. My Telstra bill itemised them, but the arbitrator’s secretary stated that these six faxed documents never arrived. The arbitrator ignored the evidence I placed before him. Something was very amiss with the whole process.

Absent Justice - Prologue

We again draw the reader’s attention to the 12 May 1995 letter from the arbitrator to the TIO stating:

“…as far as I could observe, both Telecom and Smith co-operated in the Smith arbitration…”

 “…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” (Open Letter File No 55-A)

The fax imprint across the top of this letter (Open Letter File No 55-A) is the same as the fax imprint described in the Scandrett & Associates report (see Open Letter File No/12, and File No/13), confirming faxes were intercepted during the COT arbitrations. The question the Telecommunication Industry Ombudsman and the Federal Attorney-General has still not answered is:

Was this letter actually faxed to my office by the ombudsman to assist me in any pending appeal process, and if not, why was such an important letter deliberately kept from me during my designated appeal period? 

If I had received a copy of this letter declaring the agreement used in my arbitration process was not credible, then of course I would have appealed the arbitrator’s award. After all, how could an appeal judge argue against the arbitrator’s own findings that the agreement was not credible, even though he used it anyway?

Interception of this 12 May 1995 letter by a secondary fax machine:

Whoever had access to Telstra’s network, and therefore the TIO’s office service lines, knew – during the designated appeal time of my arbitration – that my arbitration was conducted using a set of rules (arbitration agreement) that the arbitrator declared not credible. There are three fax identification lines across the top of the second page of this 12 May 1995 letter:

  1. The third line down from the top of the page (i.e. the bottom line) shows that the document was first faxed from the arbitrator’s office, on 12-5-95, at 2:41 pm to the Melbourne office of the TIO – 61 3 277 8797;
  2. The middle line indicates that it was faxed on the same day, one hour later, at 15:40, from the TIO’s fax number, followed by the words “TIO LTD”.
  3. The top line, however, begins with the words “Fax from” followed by the correct fax number for the TIO’s office (visible

Consider the order of the time stamps. The top line is the second sending of the document at 14:50, nine minutes after the fax from the arbitrator’s office; therefore, between the TIO’s office receiving the first fax, which was sent at 2.41 pm (14:41), and sending it on at 15:40, to his home, the fax was also re-sent at 14:50. In other words, the document sent nine minutes after the letter reached the TIO office was intercepted.

The fax imprint across the top of this letter is the same as the fax imprint described in the Scandrett & Associates report (see Open Letter File No/12 and File No/13), which states:

“We canvassed examples, which we are advised are a representative group, of this phenomena [sic].

“They show that

  • the header strip of various faxes is being altered
  • the header strip of various faxes was changed or semi overwritten.
  • In all cases the replacement header type is the same.
  • The sending parties all have a common interest and that is COT.
  • Some faxes have originated from organisations such as the Commonwealth Ombudsman office.
  • The modified type face of the header could not have been generated by the large number of machines canvassed, making it foreign to any of the sending services.”

One of the two technical consultants attesting to the validity of this fax interception report emailed me on 17 December 2014, stating:

“I still stand by my statutory declaration that I was able to identify that the incoming faxes provided to me for review had at some stage been received by a secondary fax machine and then retransmitted, this was done by identifying the dual time stamps on the faxes provided.” (Front Page Part One File No/14)

It is also clear from Front Page Part One File No/1File No/2-A to 2-EFile No/3File No/4 and Front Page Part One File No/5, that numerous documents faxed from my office to the arbitrators office did not reach their intended destination.

Many within the Establishment said that it was actually unconstitutional to force the COT cases into an arbitration process with Telstra while the Australian Federal Police (AFP) were still investigating Telstra for alleged phone and fax hacking of the COT cases’ businesses and, furthermore, it was acknowledged that it was clearly an unworkable process. This didn’t stop the arbitrations, however, although it does raise a number of important questions:

  1. How could two separate investigations into Telstra, for allegedly unlawful conduct, be undertaken by two different organisations at the same time, i.e., an arbitrator as well as the AFP? As far as we can find, this situation is unheard of in any other Western democracy.
  2. While all the COT cases attempted to keep their individual small businesses going while their arbitrations continued, how could we be expected to submit complex submissions to an arbitrator and, at the same time, assist the AFP with their investigations?
  3. Who decided that this situation would be allowed to continue?

I was entitled to receive this well-concealed 12 May 1995 letter during my designated appeal period, but I did not receive a copy until 2002 (and outside the statute of limitation period). In this letter, Dr Hughes states

TIO Media Release 12 May 1995

Absent Justice - Prologue

Warwick Smith was supplied advice, on 18 April 1995, from none other than John Rundell, stating there were “forces at work” that derailed the process. I discussed with Warwick Smith, twice, Telstra’s threats of withholding FOI documents, because I assisted the Australian Federal Police and that this eventuated. Surely all this was enough for Warwick Smith to call the whole arbitration process a farce and ask the minister to intervene? Yet, this did not happen, not even after Dr Hughes’ 12 May 1995 advice. In most Western democracies, this would have been enough for an investigation.

Instead, a little more than two hours after Warwick Smith (the TIO and administrator of the process) received Dr Hughes’ 12 May 1995 letter, he put out a media release stating:

“The Administrator noted that the arbitration process, under the direction of the independent Arbitrator Dr Gordon Hughes, appointed with the agreement of the parties, had been run in accordance with principals of natural justice.” (See Open Letter File No 55-B)

Warwick Smith both misled and deceived the public in this media release headed 1st Telecom COT Case Arbitration Finalised: even though this release didn’t name which claimant he was referring to, it is well known I was the first to go through the process.

So, before Warwick Smith put out this media release, why didn’t he advise the relevant communications minister, Michael Lee MP, and the public, that Telstra destroyed some documents I needed and deleted relevant information from others, particularly since I had provided Mr Smith with evidence of this?

Why didn’t he advise anyone that Telstra not only threatened to withhold all the relevant documents I needed to support my claims and that they actually carried out those threats?

Perhaps Warwick Smith was concerned that, if he did raise these problems with the Hon Michael Lee MP, or reveal them to the public, then there would have been an instant demand for answers to questions like:

Why didn’t he and the arbitrator, Dr Hughes, contact the Supreme Court of Victoria and/or the relevant authorities to request a proper investigation into the situation that the COTs had found themselves in, through no fault of their own, when it first became clear that Telstra was acting as a law unto themselves?

This raises even more questions, particularly in relation to Warwick Smith’s media release. Why did he:

  1. Collude with the arbitrator by allowing the defendants to draft their own arbitration rules for the process instead of providing the independently drafted agreement that both Warwick Smith and the arbitrator assured the media, politicians and claimants, would be prepared?
  2. Refuse to supply the COT cases with a copy of Telstra’s preferred rules of arbitration as soon as questions arose about the possibility that the arbitration agreement was based on Telstra’s version?
  3. Allow the defendants to be present at monthly TIO board and council meetings where various COT case arbitrations were discussed?
  4. Allow Dr Hughes to continue to use an arbitration agreement that Dr Hughes, himself, stated was not a credible document to have used and needed revising (for the remaining claimants), even though Dr Hughes used it all the way through my COT arbitration and the result was allowed to stand?
  5. Allow Dr Hughes and his arbitration technical unit to assess and investigate less than 11 per cent of my legally submitted claim documents?
  6. Allow Dr Hughes to only assess losses that came from my school customers, which were the least lucrative customers, while ignoring the more lucrative over-40s singles-club losses?
  7. Allow the defendants to have access to my claim material, during my arbitration, before it was submitted to the arbitrator?
  8. Organise, with the defendants, that the TIO-appointed resource unit and the defendants would decide which arbitration procedural documents would be passed on to the arbitrator for assessment and which would be concealed from the process altogether (something which is not mentioned anywhere in the official arbitration agreement)?
  9. Deliberately hide all these facts from the public in his 12 May 1995 media release?
  10. Also withhold from the public that, although the arbitration consultants wanted extra weeks to address my ongoing billing problems, these extra weeks were not allowed?

We can only guess at the answers to these 10 questions. However, it is quite clear that, if Warwick Smith had revealed the actual truth about our arbitrations, then there would have been such an outcry from the Australian public – and from many government ministers too – that Warwick Smith and Dr Hughes would have been brought into disrepute, along with all the others involved in the administrative side of the process, for having allowed this deplorable situation to continue for so long. That would have led to major pressure being applied for Warwick Smith and Dr Hughes to officially call the entire COT arbitration process null and void.

Dr Hughes writes to Warwick Smith, confirming Dr Hughes’ view that the arbitration agreement rules he had just used in my case had not allowed enough time for: “… the production of documents, obtaining further particulars, and the preparation of technical reports.”  Dr Hughes went further, actually apologising for: “… the brevity…” of his comments and noting that the time frame for future arbitrations would need to be longer than it presently was.

On the second page of his letter, Dr Hughes further notes: “There are some procedural difficulties which revealed themselves during the Smith arbitration and which I would like to discuss with you when I return” (from a trip to Greece).

Warwick Smith withheld this letter from Alan Smith, even though he could have forwarded it on during the designated appeal period allowed for in the arbitration agreement, and Alan Smith has never been given any explanation as to what “procedural difficulties” Dr Hughes encountered during Alan’s arbitration.

Dr Hughes letter to Warwick Smith was faxed to the TIO’s office on the following Saturday afternoon at 14.41 hours and then re-faxed to Warwick Smith’s home at 14.50 hours the same day.  At 17.15 hours, four documents, including a Media Release, were faxed to various TIO Board and Council members.  The Media Release, from Warwick Smith, announced that: “The Administrator noted that the arbitration process, under the direction of the independent Arbitrator, Dr Hughes, appointed with the agreement of the parties, had been run in accordance with the principles of natural justice.”

PLEASE NOTE:  The Media Release does not refer to Dr Hughes’ written opinion 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.”

On 24 January 1995 I responded to Dr Gordon Hughes’ very important 23 January 1995 letter, although I didn’t receive any acknowledgement that Dr Hughes had received it.  John Pinnock, the second TIO, later wrote to me (on 28 June 1995) claiming that no-one had received my response to Dr Hughes’ letter, so therefore, according to Mr Pinnock, the record showed that I had not replied.

After the statute of limitations had expired, and I could therefore no longer appeal my arbitration award, the TIO’s office actually returned most (but not all) of my arbitration documents, and what was one of the documents that I DID get back?  Yes, the letter I faxed to Dr Hughes on 24 January 1995 was included, with my fax machine identified across the top of the document.  This proves, of course, that I had complied with Dr Hughes instructions, which only allowed me twenty-four hours to respond.  Mr Pinnock’s 28 June 1995 letter can be accessed at absentjustice.com Open Letter File No/52-A to 52-C.

If Dr Hughes had replied to my 24 January 1995 letter, which we now know his office definitely DID receive, I could then have proved Telstra’s fraudulent defence of my claims and I could have also raised serious questions about exactly how fraudulent Telstra’s behaviour was, overall, not only during my arbitration but possibly in other COT arbitrations as well.

Open Letter File No/52-A to 52-C  is just one of those many situations where unscrupulous people involved in the COT arbitrations cared little for the rights of the COT claimants.

I am certainly not saying that Dr Hughes himself claimed that he did not receive my very important 24 January 1995 letter, which would have changed the whole outcome of my arbitration, and possibly changed the outcome of many of the other COT arbitrations as well.

Let me reiterate:  if the arbitrator had actually received the letter I sent him on 24 January 1995, and if he had responded accordingly and therefore asked Telstra to provide the Cape Bridgewater/Bell Canada International (BCI) testing data that related to those alleged calls, and if I had received a copy of that important data back in 1995, during my arbitration, instead of after my arbitration was over, I could have proved that BCI did not test the Cape Bridgewater RCM Exchange and that BCI did not use the CCS7 testing process they claimed to have used because the nearest Exchange that could facilitate that specialized equipment was in Warrnambool, 116 kilometres away. But, for whatever reason, Dr Hughes apparently didn’t get my letter and so, as his award for my case states, he accepted that false BCI testing data into evidence, which means that he based his findings on inaccurate defence documents – and this was just one of a number of important documents that were concealed from the arbitration process!

If it is at all possible for something even worse to have occurred, on 23 May 1995, after my arbitration had been officially declared to be over, one of the members of the TIO’s Council (while wearing his Telstra hat) finally provided me with conclusive proof that Telstra had indeed admitted to BCI Canada that the Telstra/Cape Bridgewater/BCI tests were impracticable.  Although this person was also (again officially) Telstra’s main arbitration defence liaison officer, still he waited until after Dr Hughes had handed down his award before he provided me with that vital information, twelve months after I had officially requested it.

This exhibit: Home Page - Part One File No/3/Chapter Thirteen, explains how the TIO, Dr Hughes and the TIO’s Special Counsel eventually became alarmed at what I had uncovered, including that twelve months that I had been forced to wait before they supplied the BCI evidence but, instead of demanding answers from Telstra they chose the path that would not ‘Open the Can of Worms’ (the TIO’s words, not mine) and so all of them, along with Telstra too, agreed not to address this very serious matter at all.

As stated above, the Australian Telecommunications Industry Ombudsman (TIO) is funded by the telecommunication carriers themselves, which means that it can hardly be called impartial, on any level, but particularly when they are involved in an arbitration, and their wages are partly paid by the defendants in that arbitration!  Evidence available at absentjustice.com shows that, during the COT arbitrations against Telstra (the defendant), the TIO allowed Telstra executives to be present at both TIO board and council monthly meetings. The TIO has since admitted, under oath, that he allowed this attendance even though arbitration issues were discussed at these meetings. Were any COTs (the complainants in this legalistic arbitration process) allowed to attend those same meetings, or even invited to attend? Of course not! And did anyone in any position of power ever attempt to put the complainants on the same footing as the defendants? Certainly not. Once again, the COTs were left out in the cold.

The findings of Justice Fitzgerald and Justice Woods’ royal commission investigations into police corruption in Queensland and New South Wales, and the findings of various other investigations into government agencies over the years, state that no organisation that has claims made against it can legally investigate itself. The current Victorian government is funding a royal commission into the potentially corrupt use of police informants that will commence in 2019. The Victorian government has commissioned Malcolm Hyde AO APM from South Australia to ensure the government is seen to be impartial.

More than half the complaints the COT cases raised with the Australian government are either against TIO officials involved in the COT arbitrations or arbitration resource unit. Although I have since taken those complaints to the State Ombudsman, Consumer Affairs Victoria, .the Australian Competition and Consumer Commission (ACCC), the Australian Communications and Media Authority (ACMA) and various government ministers, they all have the same advice: take my matters back to the TIO, even though those government-funded organisations must know the TIO’s office cannot investigate itself. It seems therefore that justice, the Australian way, involves running ordinary Australian claimants around and around in circles in the hope they will become so exhausted, and probably financially ruined, that they give up their fight. This is what has been done to me and the other COT cases for the past 22 years, while those who acted inappropriately towards us, those who instigated the roundabout and those who caused the Australian justice system to fail, have their inappropriate conduct buried, safely out of sight. It is perfectly clear: the law does not permit a party to an allegation to investigate itself.

Absent Justice - Australian Senate

On 26 September 1997, a Senate Estimates Committee investigation into matters related to those letters came to an interesting conclusion.  This investigation began with the question of why Telstra had been allowed to withhold legally requested FOI documents, during the COT arbitrations.  What it eventually exposed, however, was proof that the TIO’s office (they were the official administrators of all the COT arbitrations) had allowed a senior Telstra arbitration official to regularly attend monthly TIO Council meetings, even when Telstra v COT arbitration issues were on the agenda (see pages 109 to 110, Senate – Parliament of Australia). The Senate Hansard records of this investigation also indicate that Ted Benjamin never once revealed his clear conflict of interest while he was present at these Council meetings when COT Case arbitration issues were discussed.

At one point during my 1994/95 arbitration, Telstra’s arbitration defence team had produced a twenty-nine-page report that claimed that they had found alcohol inside the phone and that had caused my phone problems (the report actually referred to a ‘wet and sticky beer substance’ that had been ‘discovered’ inside the TF200 phone that Telstra had collected from my business earlier in my arbitration process).  After this absurd revelation I wrote to the arbitrator, Dr Hughes, asking him to access, under the arbitration discovery process, all of Telstra’s laboratory notes from those days that had led to Telstra producing this May to June 1994, TF200 report.  Once Dr Hughes had lodged that request it took Ted Benjamin, from Telstra, two months to get back to him and then all that was provided was a duplicate copy of the report itself.  Then, to add insult to injury, Dr Hughes refused to allow my forensic document researcher, Paul Westwood (see Tampering With Evidence – TF200/Chapter One), to examine even the original file notes or laboratory findings that would show exactly how Telstra had come to their conclusion that alcohol inside the phone, combined with what they claimed was a ‘very dirty and greasy’ phone itself, had been a major contributor to my telephone problems.

It was not until six months after the end of my arbitration that I finally received proof that Telstra had fabricated their findings, and that some sort of unidentified substance had actually been deliberately introduced into my TF200 telephone, after it had been collected from my business in November 1995, and it was this evidence that I then passed on, with a covering letter, to Dr Ziggy Switkowski, The Hon Tony Staley and David Hoare on 26 May 1999.

It is, of course, quite possible that my alleged ‘alcohol abuse’ and the allegedly ‘wet and sticky beer’ substance were both discussed at any one of these TIO Council meetings that, according to the official minutes from these meetings, both Ted Benjamin and The Hon Tony Staley AO attended.  It is also quite likely that what Mr Staley learned at those meetings would have led him to personally investigate my correspondence of 26 May 1999 and that would then have shown him that Telstra certainly did use fraudulent tactics during their defence of my claims.

I believe that most Australian citizens would, like me, assume that the Hon Tony Staley’s very high and long-term position within the Liberal Party, including his past-Presidency of the Liberal Party itself and, more importantly, his political career as a Liberal Minister for Telecommunications, may very well have influenced the current Liberal Government decision to not investigate the truth of my arbitration claims.

The information on this website now includes references to a total of FIVE separate recipients of the Order of Australia who has all completely ignored Telstra’s deliberate tampering with evidence and their submission of falsified arbitration reports, all related to my COT claims in relation to my TF200 telephone.

Could there possibly be a more sinister political twist to Mr Benjamin being allowed to attend TIO Council meetings when the COT arbitration claims were being discussed? It certainly seems that there could be, because it was Mr Benjamin who was in control of which documents the COT claimants could be received in response to their FOI requests, and when that information would be released.

At least up to 2004 I had received many letters from the TIO Board and Council suggesting, as John Pinnock did, that I hadn’t availed myself of the option of appealing the arbitrator’s award.  This is quite astonishing because, long before 2004, in fact way back on 26 September 1997, Mr Pinnock also openly told a Senate Estimate Committee that the COT arbitrations:

“… were to be governed by the Commercial Arbitration Act of Victoria. Significantly, that provides that an award by the arbitrator is registrable as an order of the Victorian Supreme Court, and the act confers basically what is a limited right of appeal against any award by the arbitrator.” 

After that clear statement explaining the limited right of appeal that was available to the COT claimants, how on earth could the TIO’s office still instruct those very same claimants to appeal their awards?  Remember, these instructions to ‘appeal our awards’ came years AFTER Mr Pinnock’s statement to the Senate Estimates Committee, including his reference to the limited right of appeal under the Arbitration Act.  To make the pressure applied by the TIO’s office to appeal our awards even more astonishing,  if we did want to attempt such an appeal, the basic documents we needed to be able to access, in order to give us even a slim chance of winning those unlikely appeals, were all withheld from us, as per John Pinnock’s following letter (Open Letter File No 57-C) shows.

“I refer to your letter of 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.” 

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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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“…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

“…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

“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

“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

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

– Edmund Burke