🛑 Stop Press
Coming Soon: "The Arbitraitor"
My forthcoming ebook, The Arbitraitor, plunges into the shadowy depths of corruption, exposing the insidious machinery behind bribery, kickbacks, extortion, fraud, graft, cronyism, and nepotism. It reveals the manipulative art of influence peddling—where power is weaponised to distort decisions and exploit systems for personal gain.

The book also confronts the disturbing reality of malfeasance, spotlighting the illegal and unethical actions of public officials who betray their duties for self-interest. Their blatant disregard for the law paints a stark portrait of our kleptocracy—a system in which government institutions serve not the public but the enrichment of corrupt bureaucrats.

The Arbitraitor is not just a book—it’s a reckoning.
Stay tuned to absentjustice.com for release updates, and prepare to face the uncomfortable truths that demand to be heard.

PROLOGUE

The key events illuminated in this publication can be substantiated by visiting my websites, absentjustice.com and absentjustice.com.au. This innovative approach has empowered us to write freely, avoiding the cumbersome numbering system that would have otherwise significantly expanded the publication's size.

By linking original documents (confirmation data) throughout the narrative on absentjustice.com, readers can access the compelling proof that supports both The Arbiitraitor story and the Absent Justice story seamlessly. This method represents a pioneering effort—perhaps the world’s first system for validating an unfolding narrative.

Without access to these essential documents and the extensive array of free downloads featuring thousands of evidence files, many individuals would struggle to grasp the deeply distressing experiences endured by Casualty of Telstra (COT) claimants.

 

WHO WERE THE CASUALTIES OF TELSTRA

Until the late 1990s, the Australian government held an iron grip over the nation’s telephone network through its communications carrier, Telecom, now privatized and renamed Telstra. This monopoly wielded its power with a merciless disregard for our needs, allowing the network to rot and crumble, leaving us vulnerable and disconnected.

When four small business owners, including myself, found ourselves ensnared by a web of catastrophic communication failures, we were lured into a treacherous trap set by the Federal Government. They promised us a commercial assessment process they claimed to endorse, but what unfolded was an elaborate sham. The appointed arbitrator was nothing more than a puppet, dancing to Telstra’s sinister tune, manipulating the process to suffocate our claims and bury their heinous acts beneath a facade of legitimacy.

Unfortunately, none of the ongoing telephone issues that led me to arbitration in the first place were ever investigated. As a result, these problems continued to disrupt my business for another six years after the arbitration, as the following narrative will illustrate.

Twelve further small business operators from around Australia with similar problems joined the group who were now labelled as Casualties of Telstra. All sixteen small business owners were telephone dependent, as back in the early 1980s through to the late 1990s and early 2000s, emails and mobile phones were not being used in Australia for promoting businesses. And in most cases mobile phone could not be used in rural Australia until 2004, and in Cape Bridgewater at least unto 2010.   

THE STORY TELSTRA TRIED TO BURY

Imagine the disbelief of small-business owners thrust into arbitration under government assurances that they’d receive all necessary documentation—only to discover those documents arrived three years after their cases had closed. This shocking failure forced us to present the exhibits as we have, revealing a story of staggering complexity.

This is the account of ordinary Australians battling Telstra, a corporate giant that denied the existence of faults while internal records proved otherwise. It’s a story of intercepted faxes, delayed or censored FOI documents, destroyed evidence, and fabricated claims—all used to obstruct justice.

The arbitrator ignored key points, and regulatory bodies like AUSTEL and the TIO failed to hold Telstra accountable. Their inaction, combined with political indifference, created a system where unlawful conduct—evidence tampering, surveillance, and document withholding—was tolerated.

Telstra’s fear of liability drove it to conceal systemic faults, especially in rural areas. As privatisation loomed, the company deferred network repairs, leaving businesses to suffer. For rural operators, reliable communication was essential—but mobile phones and internet access were rare, and black spots were common.

Younger generations may struggle to grasp how Telstra and its government minders misled the public, masking deep infrastructure failures to protect profits. But the documents tell the truth. And through this publication, that truth finally has a voice.

 

 

 

 

 

 

 

 

 

 

 

 

Chapter 1
A Business Built on Silence

Have you ever had reason to complain about your phone bill?

Have you ever discovered that, even though you know you were right beside the phone at a particular time, your friend insisted he had rung and you had not answered?

Has anyone ever mentioned in passing that they are amazed at how much time you spend on the phone when you know your phone hasn’t rung for days (and you have hardly made any outgoing calls)?

Have prospective clients abused you for being unprofessional and not answering your phone for days when the phone hasn’t even rung once for the last week?

If you have ever experienced only one of these situations then you will understand why I sometimes feel I have lived through a nightmare — I experienced all these problems, and more, for almost ten years.

Unfortunately, I knew nothing of what was ahead of me when I bought my phone-dependent business at Cape Bridgewater, in rural Australia. It wasn’t until much later that I discovered that the business was connected to an antiquated phone exchange which had been installed more than 30 years before and which was designed specifically for what the Australian telecommunications carrier (Telstra) designated as ‘low-call-rate areas.

This ancient telephone exchange was certainly never intended to handle the number of calls that were already being made by residents and holiday makers in late 1987 when I arrived to take over the business, nor was it ever intended to handle the increased number of calls that occurred in this holiday village at holiday time.

This story could easily be your story: I know, because this nightmare was my nightmare.

From Sea to Shore: A Dream Takes Root

Back in December 1987, when I first fell in love with the small accommodation centre perched high on a hill above a picturesque bay on the south coast of Victoria, I knew this was a business I could run successfully.

My working life began in 1960 when, at age 15, I went to sea as a steward on English passenger/cargo ships. In 1963 I jumped ship and started work in Melbourne as an assistant chef, moving from one elite hotel to another—Hotel London, Australia Hotel, Menzies.

Two years later, now aged 20, I joined the Australian Merchant Navy, starting out on the Princess of Tasmania and, by 1975, I had put in time as a chef on many Australian and overseas cargo ships. Time learning to manage hotels, motels and restaurants around Victoria followed.

By 1979, married to Faye and with two children, I was working freelance in the catering industry and on Melbourne tugboats, while studying for a Hotel/Motel Management Diploma. I had already taken on a Hotel/Motel and pulled it out of receivership so the owners could sell it once it was running successfully again.

By 1987, at age 44, I had enough experience behind me to know I had the skills and knowledge to turn a simple school camp into a thriving venue for social clubs, family groups, and schools.

The Phone That Didn’t Ring

What my wife and I didn’t know—and couldn’t have prepared for—were the problems caused by the ‘elderly’ phone system in the area. The local, unmanned exchange had only 8 lines, shared by 60 families and our business. If just four people were on the phone, only four lines remained for everyone else including us.

In February 1988, before we moved in, we printed and distributed 2,000 glossy brochures. I personally visited nearly 150 schools and shires. We expected the phone to ring off the hook. It didn’t.

By April, complaints began. People said we never answered. Others suggested we install an answering machine—which we did. Still, the complaints continued: long periods of engaged tones, no ringing, no messages. We knew the phone wasn’t ringing. We knew it wasn’t engaged. But no one believed us.

The Paper Trail of Deception

Years later, through Freedom of Information (FOI) requests, I discovered that the previous owner had also complained about the same faults. One Telstra document— “Telstra Confidential: Difficult Network Faults — PCM Multiplex Report; 31/1/94”—confirmed Telstra had known about the problems since 1987.

We had sold our Melbourne home and used my early retirement payout to buy into a business we believed in. But the phone system was sabotaging everything.

Cracks in the Foundation

Faye’s frustration grew. We began to doubt ourselves. Were we missing calls? Forgetting to turn on the answering machine? But we weren’t. The line dropped out mid-call. Sometimes callers rang back. Sometimes they didn’t. Every lost call was a lost booking.

The Christmas of 1988 brought clarity. At a dinner we hosted for locals, I mentioned the phone issues. Our neighbour Harry confirmed his daughter struggled to get through. Fred Fairthorn, former owner of ‘Tom the Cheap Grocery’ chain, said, “After all, what can you expect from Telstra when we’re in the bush?”

The Breaking Point

By early 1989, the phone system had become the wedge that fractured our marriage. I was angry all the time. I blamed myself for dragging Faye into this. My advertising campaign failed. Bookings dwindled. We toured South Australia to promote the camp, but the phone remained silent.

One day in Portland, I tried to call Faye from a payphone. A recorded message said our number was disconnected. I tried again. Same result. When I returned, Faye was furious. The phone hadn’t rung once. She didn’t know I’d tried to call. She didn’t know Telstra had failed us again.

According to Telstra’s own FOI records, I made nine formal complaints between April 1988 and January 1989. That doesn’t include the letters, or the Portland call. The evidence was there. The damage was done.

By mid-1989, our finances lay in ruins. The bookings we had dreamed of were nothing but mirages. We sold our shares for a pittance—$1.60 each for four thousand. A decade later, they would soar to $8.20. A cruel twist of fate. Our savings from the Melbourne home—$140,000—covered only half the cost of the camp. The rest became a mortgage, a chain around our necks. I had believed we were set for life. Instead, we were bleeding out, selling our lifeblood just to stay afloat.

Our marriage began to fracture under the weight of this invisible war. My self-worth crumbled like ash in the wind. And then, as if summoned by the darkness itself, Faye fell and broke her leg. The hospital visits became a relentless march into despair. Her pain was a mirror of mine—slow, unrelenting, and cruel. The leg refused to heal. It felt as though the universe had turned against us.

We clung to hope, making fleeting trips to Melbourne. Faye sought comfort in familiar faces. I used the time to market the camp in Caulfield and Huntingdale, but the dread gnawed at me. Something was wrong. Something was watching.

One evening, I tried to check the camp’s answering machine remotely. What I heard chilled me to the bone: “The number you are calling is not connected or has been changed…” That voice—so calm, so final—was the sound of our business being erased. I didn’t tell Faye. She didn’t need another shadow in her mind.

Outside Geelong, as we drove home, Faye asked if I’d checked for messages. I lied. At the next phone box, I tried again. The line was engaged. My heart raced. Someone must be leaving a message. But when we returned, all we found was a stale recording from friends in Melbourne—a hollow echo of better days. Why had the line been engaged? Had we lost calls? Had desperate clients been met with silence?

Faye’s hospital visits became her escape. Her spirit frayed, unravelling with each passing day. The weight of financial ruin and her slow recovery crushed us. On 26 October 1989, our marriage succumbed to the darkness.

The Chinese Cultural Revolution, the MV Hopepeak, and the Tyranny That Followed

I turned to Scotch, locking myself in one of the cabins, seeking refuge in its numbing embrace. Faye, terrified, called the police. They stormed in like invaders, shattering my sanctuary. As I faced them, a memory from 1967 surged forth—my clash with the Red Guards during China’s Cultural Revolution. I had escaped aboard the MV Hopepeak, fleeing tyranny. But now, in my fractured mind, the uniforms of my rescuers blurred with the faces of tormentors.

Gaps often clouded my memory, with one day bleeding into the next, but a few moments stand out distinctly, etched in my mind. I can still see the face of a peasant nurse, once filled with kindness, losing its warmth as she offered me a smile that felt more like an omen. I was being held by two Red Guards, my wrists painfully clamped in their grasp, resisting the advance of an unsterilized needle destined for my arm.

In that chaotic moment, a third Red Guard strutted forward and swung a baton, striking the nurse across her face. It happened so quickly; her expression twisted from gentle concern to shocked disbelief. Who was she really—a trained nurse or just another labourer conscripted into this ghastly environment? I couldn’t help but feel the weight of uncertainty in my gut as she knelt to scrub the floor, her uniform stained just like the doctor who, moments later, would wield that needle.

Their unkempt appearances—the dirt beneath their fingernails, the disarray of their clothes—painted a grotesque picture of a hospital turned into a grim mockery of care. It all culminated in an eruption of fear that gripped me, transforming a simple medical procedure into a scene from a nightmare I couldn’t escape.

Years later, when I found myself in a psychiatric hospital in Warrnambool, a country town in Victoria, Australia, the Chinese doctor there would tell her colleagues that I wasn’t insane; I carried the weight of PTSD. She marvelled that I was the first patient in years to recount such a vivid and harrowing experience from that dark time of the Chinese Cultural Revolution in August 1967. But in truth, that memory was a relentless shadow—a cruel reminder of how an encounter meant to heal instead etched trauma deeper into my spirit.

The day after I left Briely Hospital, where doctors assured me, I wasn’t losing my mind, their cold reassurances only deepened my paranoia. I returned to the camp with Margaret, my mate’s wife—a flicker of warmth in the gathering storm.

But this was no recovery. It was the beginning of a descent. A descent into shadows where hope flickered and despair thrived. The silence had become a predator. And we were its prey.

Margaret and I pulled into the camp, only to be met by a scene that felt like a calculated act of sabotage. The air was thick with neglect. Doors hung open like gaping mouths, packages of meat lay abandoned on benches, their frost melting into pools of decay. The deep freeze—once a vital lifeline—was gone, vanished without a trace. It was as if ghosts had ransacked the place, each corner revealing another cruel twist in a growing nightmare.

Faye had fled the night before, swept away by the whispers of well-meaning “do-gooders” and welfare workers who insisted she seek refuge in a so-called “safe house.” But safety was a lie. What remained was chaos—raw, unfiltered, and merciless. Food was left on the benches once frozen, now thawed, and blood was now dripping from the benches onto the floor. Surely the do-gooders would not have done this. Had somebody from further afield, an opportunist, decided they needed a fridge and freezer. All my food stores had gone; we were clearly wiped out.

According to my diary, seventy students from Monivae Catholic College were due to arrive in just two days. Five days. Four nights. Seventy mouths to feed. The weight of that responsibility pressed down like a vice. Without Margaret’s unwavering presence, I would have crumbled into dust.

We focused on cleaning and shopping, but the tasks felt insurmountable. My heart was a hollow drum, echoing the loss of a twenty-year marriage. The shopping list loomed like a cruel joke—what could I possibly prepare for seventy hungry souls? Time was slipping through my fingers. It was already Sunday evening. The Monivae group would arrive the next day. Their first meal: dinner. And I was drowning.

Then, as if summoned by the same malevolent force that haunted our phone lines, the hot water system collapsed. Cold showers became the norm. Staff grumbled. The camp groaned under the weight of dysfunction. Yet Monivae College returned, year after year, their loyalty a fragile thread holding us above the abyss.

But even loyalty couldn’t conceal the growing tension. Margaret wasn't my bed mate, though at times I wished she were she was my mate’s wife. She had agreed over the phone in the early hours of the morning, after the incident at Briely Hospital, to accompany me back to the holiday camp as part of the condition for my release from that nightmare. Margaret was sleeping in the spare bedroom of the manager’s residence, keeping a cautious watch on me as I drifted in and out of sleep. She could see the cracks forming. Her decision to call Brother Greg—a teacher from Monivae—wasn’t an act of kindness; it was a matter of triage.

I had begun mumbling in my sleep, incoherent fragments of past traumas bleeding into the present. The darkness was sleeping in.

We sat together in the dim light, the three of us. Brother Greg gripped my hands. Margaret clutched my arms. I was anchored, barely. We spoke of China, of the Red Guards, of the MV Hopepeak. Of Faye. Of the unravelling. Margaret endured it all like a soldier, her presence both a comfort and a reminder of the war I was losing.

Religion crept in like a shadow pretending to be light. Women from the church surrounded me, their smiles too polished, their comfort too rehearsed. Their intentions may have been pure, but their presence felt like a veil—thin protection against a storm that had already breached the walls. Faye’s absence gnawed at me. I longed for connection, for intimacy, for something real. But all I found was silence.

And that silence was not benign.

The phone problems persisted, growing more grotesque with each passing day. In mid-November 1989, Chris from the church mentioned she had tried to call. The line rang endlessly, then fell into a void. I had already filed complaint after complaint with Telstra, each one a scream into the abyss. The fault logs became a twisted diary of despair.

One day, Chris tried the holiday camp extension kiosk phone used when all hands were busy in the main kitchen. Nothing. Just dead air. I tore through the connection box, convinced a loose wire was the culprit. But everything was intact. The deadline loomed, mocking me like a spectre.

Then came the gold coin-operated phone in the dining room. Untouched. Untainted. Or so I thought. I fed it coins, clinging to hope. A dial tone. Relief. But then— “The number you have called is not connected or has been changed.” The voice was mechanical, but it dripped with malice. My coins were gone. Swallowed by the machine. Swallowed by the lie.

I tried again. This time, the message changed: “The line is engaged.” But I knew it wasn’t. I was alone. The phone was silent. The machine was lying. The universe was conspiring.

In the months that followed, I descended into madness. I devised bizarre testing routines, rituals to expose the malevolence behind the phone lines. But the answers never came. Only more silence. More deception.

Was Telstra incompetent—or complicit? Was there a force beyond them, feeding on my unravelling? The questions clawed at me. The weight of it all pressed down, suffocating. I stood at the edge, trembling, staring into the void.

And the void stared back

 

The Gold Coin Revelation

Frustration morphed into panic as I scoured for change and tried the call again. This time, it falsely informed me that my office line was engaged. In the months that followed, I resorted to bizarre testing routines, desperate to understand the malevolence behind the phone issues. The question clawed at me: why did this nightmare persist despite the endless complaints to Telstra? Was there a malignant force at play, revelling in my unravelling, indifferent to my pleas for help? The weight of unanswered questions bore down on me, leaving me trembling on the brink of despair.

Karen’s Gamble

Since I was no longer part of a working husband-and-wife team, I continually had to dig deep into my almost non-existent financial reserves to cover labour costs, or risk losing everything. With Faye gone, I was suffering what is commonly known in the world of finance as a ‘consequential resultant loss’: I had to begin paying her a yearly dividend on her financial investment in the business, even though she was no longer contributing her unpaid labour. And I still had to find the dollars to pay staff.

As we headed further into 1990, the future looked grim. The phone faults continued. Who knows how many prospective customers were lost because they couldn’t reach me by phone? Because the camp is in a remote area, phone was the only access city people had.

By now the legal vultures were circling. I hadn’t been able to abide by the original financial agreement with Faye, and her solicitor was demanding more money. My first payment to her came due and I couldn’t raise the funds to refinance. I was having trouble meeting my own legal costs, let alone finding extra for Faye. The outlook could never get any bleaker, I thought. How wrong I was.

To pay some of the mounting debts, I sold the twenty-two-seater school bus I had originally used to ferry customers around and purchased a small utility in its place. Through mutual friends, I met Karen, a divorcee from Warrnambool, some one hundred kilometres away. At least the little tray truck meant I could see Karen a couple of times a week, and the relationship developed to become quite serious.

When Karen heard that Faye’s solicitor was about to wind up my business, forcing me to sell because I couldn’t raise the funds to make any more payments, she put her house up as security for a loan, giving me two years of breathing space.

Around the same time, I contacted Telstra’s fault centre in Hamilton again. As usual, I got the run-around but was finally told that a new exchange was about to be installed at Cape Bridgewater and would alleviate all the problems I’d suffered. Years later, thanks to an FOI request, I acquired a handwritten file note dated 15 August 1991. It recorded my complaint, noting that this had been “a continuing problem,” that I was “losing a lot of business,” and that the age of the existing exchange might be to blame. The note confirmed Telstra would try to get my phones working correctly before the new exchange was installed. But from August 1991 through May 1992, more complaints of recorded voice announcements came in.

The Weight of Broken Dreams

My relationship with Karen unravelled as we struggled against an unrelenting tide that threatened to pull our business under. After months of relentless fighting, Karen sold her home, raising just over $80,000. Yet, in a heartbreaking twist of fate, $65,000 vanished to cover my mounting legal fees and to settle Faye’s debts, leaving us gasping for hope amid our dwindling prospects. A year dragged on with Faye, filled with anxiety and despair, but by then, the damage was done. Karen’s name stood as the sole beacon of stability on my business title, a painful reminder of our shattered dreams.

Every passing day felt like a blow, as the bookings barely eked in, and the camp quickly descended into disrepair. The peeling paint and broken fixtures couldn't mask the neglect that suffocated us. Passersby averted their eyes, unwilling to confront the tragic sight that had once held promise. With no guests to keep us afloat, we were trapped in a suffocating cycle of decay—no maintenance, no income, and no chance for word-of-mouth recommendations to reverse our fate.

When, on rare occasions, a school or club would manage to book the camp, it felt like a cruel joke; we were left utterly broke, unable to even procure the most basic food supplies for our clients. The operational challenges cast an overwhelming shadow, amplifying our fears and shattering our spirits.

The mounting stress ignited heated arguments between Karen and me, echoes of the conflicts I once had with Faye. It broke her heart to watch her investment erode, while I bore the weight of her disappointment with an unbearable heaviness. “It’s been twelve months since I moved here, and nothing has improved! The phone issues are still unresolved!” she cried, her voice laced with frustration and despair.

Yet, amidst all this turmoil, I clung to the fragile solace of sponsoring underprivileged groups to use our camp. I worked tirelessly to organize food donations through the kindness of various commercial outlets, letting these kids enjoy our facilities without cost. But how could any act of goodwill pierce through the overwhelming darkness of my reality?

Karen and I threw ourselves into promoting “getaway” holidays for singles over forty, but each effort felt like casting pebbles into an abyss. The responses were weak, and enthusiasm dwindled to nothing—as if the chaos surrounding us had rendered us invisible. Each day weighed heavier than the last, as we found ourselves ensnared in an endless cycle of heartbreak and disappointment. We had become walking ghost stories of broken dreams, shadows of what we once aspired to be, all while the dark cloud of loss hung heavily over us, draining the last remnants of hope from our weary hearts.

Despite the financial precariousness of the enterprise, I had from the start sponsored the stays of under-privileged groups at the Camp. It was no loss to me really: sponsored food was provided through the generosity of several commercial food outlets, and it cost me only a small amount in electricity and gas.

In May 1992, we held a charity week for kids from Ballarat and South-West Victoria, organised largely by Sister Maureen Burke, IBVM, Principal of Loreto College in Ballarat. Arrangements regarding food, transport, and any special needs the children might have, had to be handled over the phone, and of course, Sister Burke had enormous problems making phone contact. The Calls were either ringing out, or she was getting a deadline — no sound at all. Finally, after trying in vain all through one week, she decided to drive the 3½ hours to make the final arrangements.

Just as she arrived at the Camp, Karen took a phone call from a very angry man who wanted information about a singles weekend we were trying to set up. This caller was quite abusive. He couldn't understand why we were advertising a business but never answered the phone. Karen burst into tears. She had reached the end of her tolerance, and nothing I could say was any help. When Sister Burke appeared in the office, I decided absence was the better part of valour and removed myself, leaving the two women together. Much later, Sister Burke came out and told me she thought it probably best for both of us if Karen were to leave Cape Bridgewater. I felt numb. It was all happening again.

But it wasn't the same as it had been with Faye. Karen and I sat and talked. True, we would separate, but I assured her that she would lose nothing because of her generosity to me, that I would do whatever was necessary to buy her out. We were both relieved at that. Karen rented a house in Portland, and we remained good friends, though, without her day-to-day assistance at the Camp, which had given me space to travel around, I had to drop my promotional tours.

Later I sent two copies of the early draft of this book one to Sister Maureen Burke IBVM   who wrote back, 

“Only I know from personal experience that your story is true; otherwise, I would find it difficult to believe.'”

Deadlines and Determined Women

Twelve months later, in March 1993, Sister Karen Donnellon—also from Loreto College—tried to contact me through the Portland Ericsson telephone exchange to arrange another annual camp. She later 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.”

Between April 1990 and when I sold the camp in December 2001, I continued to partly sponsor underprivileged groups, even as the phone faults persisted year after year. Some money still came in. Those wanting a cheap holiday kept trying to call, even after being told the camp was no longer connected to Telstra’s network. If they had to drive hours to make a booking, like Loreto College did, then drive they did.

The camp could sleep 90 to 100 people across fourteen cabins. With sponsored food and basic utilities covered, the groups used the facilities at minimal cost. But the phone problems never stopped. Telstra’s automated voice messages kept telling callers the business didn’t exist, or they were met with silence—deadlines that made it seem like the number was disconnected.

Sister Maureen Burke and Sister Karen Donnellon tirelessly dedicated themselves to helping me secure a reliable phone connection for the camp. They recognized how crucial this was—not only for providing families with affordable holiday experiences but also for ensuring the very survival of our business. Their determination was nothing short of extraordinary, as they navigated countless obstacles in pursuit of a solution. Unfortunately, despite their efforts, the shortcomings of Telstra and the persistent issues with the outdated Ericsson AXE exchange ultimately cost me the opportunity to run a thriving business, where callers could have easily reached us.

I had briefly touched on the problems the Children’s Hospital encountered with the phone service during their stay at the holiday camp, yet I failed to convey the gravity of the situation that unfolded after they left. The ongoing telephone issues escalated to a near-crisis, leading to a life-threatening scenario that could have been avoided had we had proper communication.

Children’s Lives Could Be at Risk

The Herald Sun newspaper, dated 30 August 1993, published a headline that cut deep:

The article confirmed just how damaging the media coverage had become for my already struggling business. It reported:

“The Royal Children’s Hospital has told a holiday camp operator in Portland that it cannot send chronically ill children there because of Telecom’s poor phone service. The hospital has banned trips after fears that the children’s lives could be at risk in a medical emergency if the telephone service to the Portland camp continued to malfunction”.

The centre’s stand follows letters from schools, community groups, companies and individuals who have complained about the phone service at Portland’s Cape Bridgewater Holiday camp.”

Youths from the Royal Children’s Centre for Adolescent Health, who were suffering from “chronic illnesses”, visited the camp earlier this year.   

Group leader Ms Louise Rolls said in a letter to the camp the faulty phones had endangered lives and the hospital would not return to the camp unless the phone service could be guaranteed”

A Near-Tragedy That Worsened an Already Sinking Ship  

It wasn’t until a near-death experience at my camp was recorded by the Melbourne Children’s Hospital that Telstra finally decided to take my phone problems seriously. I found myself in a desperate situation, racing a child with cancer to Portland Hospital—18 kilometres away—because we couldn’t establish a reliable phone connection. None of the 35 children, nor the six nurses and caregivers, had mobile phones. And even if they had, mobile coverage in Cape Bridgewater didn’t come into existence until 2004—eleven years too late.

My coin-operated Gold Phone was riddled with faults, each attempt to call for help an exercise in frustration. It took several tries before we could finally reach someone to summon an ambulance. Only after this harrowing crisis did Telstra send a technician equipped with real expertise to investigate. This visit arrived on June 3, 1993—five long years after I first reported the problems and six weeks after the Children’s Hospital vowed never to return. Their decision was both justified and heartbreaking; the burden of responsibility placed on the child’s carer was a tragedy just waiting to unfold.

In the shadow of this negligence, more groups seeking hospital-style convalescence, comprised of both children and the elderly, began to steer clear of what was once a valued service. The aftermath of the Children’s Hospital’s ordeal cast a pall over traditional activities: ethnic migrant bulk holidays, leisurely seascapes, invigorating bushwalks, and serene canoeing adventures began to dwindle.

The crisis deepened when seven major bookings were abruptly cancelled, the most impactful being a large group from Kensington, Victoria, not far from the Children’s Hospital. Over 110 individuals chose to withdraw from their planned six-night getaway, gripped by a paralysing fear of being confined in a holiday camp. Disturbing reports in the newspapers warned that once inside, guests would be unable to make phone calls—either in or out—setting alarm bells ringing about their safety and ability to communicate.

Questions swirled like a tempest, casting shadows over potential risks—particularly concerning what might happen in the event of a fire—fears that the Children’s Hospital had every right to harbor. The uncertainties surrounding these holiday arrangements morphed into a nightmare for children’s convalescent programs and elderly care alike.

In this atmosphere of fear and uncertainty, it seemed evident that Telstra would stop at nothing to protect its interests. Perhaps this treachery is why they refused to provide Austel and the COT claimants with the critical Freedom of Information (FOI) documents we desperately sought. This wilful withholding of evidence became one of the key reasons we, the COT claimants, found ourselves unable to conclusively demonstrate to the arbitrator that my telephone issues were still ongoing.

And so, the story unfolds—a tale of corruption shrouded in secrecy, where the truth was kept hidden, leaving countless lives hanging in the balance. The following list identifies some areas in the AUSTEL draft report where AUSTEL faced insurmountable barriers in accessing Telstra's records regarding the service provided to me, each record a key to unmasking the deception that lay at the heart of this unfolding tragedy:

·     Point 43 on page 20 “As no fault report records remain in existence from Cape Bridgewater residents prior to this period, or these records have not been provided to AUSTEL, it is difficult to gauge the level of problems in the area.”

·     Point 48 on page 22 “AUSTEL has been hampered in assessing Telecom’s dealings with Mr Smith by Telecom’s failure to provide files relating to Mr Smith’s complaints.”

·     Point 71 on pages 28 and 29 “AUSTEL has not been provided with the documents on which the conclusion in this briefing summary were reached, such as fault reports from other Cape Bridgewater subscribers over this period or the details of the final selector fault.  It would have been expected that these documents would have been retained on file as background to the summary.  It can only be assumed that they are contained within the documentation not provided to AUSTEL.”

·     Point 140 on page 49 “It should be noted that AUSTEL’s investigation of matters relating to the RCM problem has been hampered by Telecom’s failure to make available to AUSTEL a file specifically relating to the Pairs Gains Support investigation of the RCM.  The file was requested by AUSTEL on 9 February 1994.”

·     Point 160 on page 55 “It should be noted that it is hoped that a number of issues in regard to the Cape Bridgewater RCM will be clarified when Telecom provides the documentation requested by AUSTEL.”

Once AUSTEL was fully aware that Telstra was refusing AUSTEL relevant information that would allow the government communications regulator to prepare its official report for the minister after the regulator facilitated the arbitration and mediation processes that were to be based on information obtained from Telstra, it is evident that AUSTEL should never have allowed those processes to proceed. AUSTEL breached its duty of care to the COT cases by permitting the arbitrations/mediations to proceed. After all, if the government could not officially order Telstra to supply records to the minister, then what hope did the COT cases ever have of obtaining the same documents?

Unbeknownst to me, Austel reported in their COT Cases Report of April 1994 that, based on their investigations, we involved in the COT cases had experienced various stages of issues. However, they withheld their most damaging findings from the arbitrator, which ultimately, as my absentjustice.com website demonstrates, resulted in my not receiving a fair hearing. For instance, the statements made in point form in their March 1994 Cape Bridgewater Report include points 44, 85, 115, 130, 153, 153, and 209. These statements can be verified by locating the corresponding numbers on the website and reviewing points 1 to 212.

Point 44 – “Given the range of faults being experienced by Mr Smith and other subscribers in Cape Bridgewater, it is clear that Telecom should have initiated more comprehensive action than the test call program. It appears that there was expensive reliance on the results of the test program and insufficient analysis of other data identifying problems. Again, this deficiency demonstrated Telecom’s lack of a comprehensive and co-ordinated approach to resolution of Mr Smith’s problems.”

Point 85 – “The potential Over Forties Single Club patrons’ testimonials are also referred to in the AUSTEL report of 3 March 1994:

As Mr Smith points out, the RVA message had the potential to severely damage his business. An important point in relation to the possible financial impact of the RVA message on the Cape Bridgewater Holiday Camp service is the camp’s dependence on group bookings. In June 1992 the camp tariffs ranged from $1500 to $6000 per week, so the loss of even one booking because of the RVA problem could mean a substantial financial loss.” 

Point 115 – “Some problems with incorrectly coded data seem to have existed for a considerable period of time. In July 1993 Mr Smith reported a problem with payphones dropping out on answer to calls made utilising his 008 number. Telecom diagnosed the problem as being to “Due to incorrect data in AXE 1004, CC-1. Fault repaired by Ballarat OSC 8/7/93, The original deadline for the data to be changed was June 14th 1991. Mr Smith’s complaint led to the identification of a problem which had existed for two years.”

Point 130 – “On April 1993 Mr Smith wrote to AUSTEL and referred to the absent resolution of the Answer NO Voice problem on his service. Mr Smith maintained that it was only his constant complaints that had led Telecom to uncover this condition affecting his service, which he maintained he had been informed was caused by “increased customer traffic through the exchange.”  On the evidence available to AUSTEL it appears that it was Mr Smith’s persistence which led to the uncovering and resolving of his problem – to the benefit of all subscribers in his area”.

Point 153 – “A feature of the RCM system is that when a system goes “down” the system is also capable of automatically returning back to service. As quoted above, normally when the system goes “down” an alarm would have been generated at the Portland exchange, alerting local staff to a problem in the network. This would not have occurred in the case of the Cape Bridgewater RCM however, as the alarms had not been programmed. It was some 18 months after the RCM was put into operation that the fact the alarms were not programmed was discovered. In normal circumstances the failure to program the alarms would have been deficient, but in the case of the ongoing complaints from Mr Smith and other subscribers in the area the failure to program these alarms or determine whether they were programmed is almost inconceivable.”

Point 158 – “The crucial issue in regard to the Cape Bridgewater RCM is that assuming the lightning strike did cause problems to the RCM om late November 1992 these problems were not resolved till the beginning of March 1993, over 3 months later. This was despite a number of indications of problems in the Cape Bridgewater area. Fault reports from September 1992 also indicate that the commencement of problems with the RCM may have occurred earlier than November 1992. A related issue is that Mr Smith’s persistent complaints were almost certainly responsible for an earlier identification of problems with the RCM than would otherwise have been the case.”

Point 209 – “Cape Bridgewater Holiday Camp has a history of service difficulties dating back to 1988. Although most of the documentation dates from 1991 it is apparent that the camp has had ongoing service difficulties for the past six years which has impacted on its business operations causing losses and erosion of customer base.”

 

 

 

 

 

 

 

 

 

 

 

 

Chapter 2 - Casualties of Telstra

Karen rang in July 1992; to tell me she had heard of a restaurant in Melbourne suffering the same phone problems that were crippling me.

I felt a great comfort in hearing this and knew I needed to meet the owner. Making phone contact with the restaurant was, of course, difficult, but eventually I got through to Sheila Hawkins, proprietor of The Society restaurant in Bourke Street, in the centre of the city. We arranged to meet, and I travelled to Melbourne in early August.

It was so good to talk to someone who experienced similar problems. And there were more of us. Sheila knew of an Ann Garms who ran the Tivoli Theatre Restaurant in Brisbane, who was also having serious telephone problems. Back in Cape Bridgewater, I rang Ann to discover she was coming to Melbourne the following week to register her own complaints with Austel, the Australian Telecommunications Regulator, and we arranged to meet with Sheila. I went into the city again for the meeting, where Ann mentioned another Brisbane business that was in similar trouble—a car parts company run by Maureen Gillen. Like Ann’s business, Maureen’s was trunked off the Fortitude Valley exchange. Sheila, meanwhile, had contacted Graham Schorer, who somehow ran the Golden Courier Service out of North Melbourne—despite a very bad phone service.

Finally, our little group gathered at Sheila’s restaurant in Bourke Street, except for Maureen who couldn’t make the journey from Brisbane. It was Sheila who suggested we call ourselves COT—Casualties of Telstra. This was one of her last actions with the group, as she withdrew shortly after due to ill health.

At the top of the list of problems we held in common were those three little words: “No fault found.” It wasn’t just that we all had to put up with ongoing service faults; Telstra’s evasion of responsibility in this regard made those faults a nightmare. Telstra had a duty to deliver us service up to a recognised network standard, and by failing to “find” their faults, they were effectively avoiding carrying out their statutory obligation.

In October 1992, COT had its first official meeting with Telstra at the Ibis Hotel in Melbourne. We were a united and optimistic group of small-business telephone users, on our way to justice. We had no idea what a long haul we were in for. Indeed, this first meeting felt eminently successful. Telstra sent three executives; they treated us courteously, and we felt that our claims were being taken seriously. We were seen and treated as a concerned group of small-business people whom Telstra had consistently ignored.

We asked for Austel (the government regulator) to be the “honest broker” in our matters, and the executives agreed to this. They took the documentary evidence we had brought, and at the end of the meeting, we were left with the sense that it would all soon be resolved.

Following the initial meeting, there were several meetings with Telstra and Austel. As he was based in the city, Graham Schorer was the COT representative. Under pressure from Austel, Telstra acknowledged that faults existed, although they still withheld admission of the scale of faults that were known to be true—and indeed, as it turned out, that they too knew to be true.

Guaranteed to meet the network standard

Meanwhile, in July 1992, I had been obliged to ask Telstra for a guarantee that my phone service was up to standard. A bus service required such a guarantee (in case of urgent communication needs) before it would contract to transport groups to the camp. Although I did not see how Telstra could guarantee such a thing based on current performance, I thought a guarantee might have some use as leverage.

Not one but two guarantees eventually arrived (in the event, both too late for the purpose of securing the contract with the bus company). The first stated that my phone service was indeed “up to network standard”:

The second stated:

We believe that the quality of your service can be guaranteed and although it would be impossible to suggest that there would never be a service problem we could see no reason why this should be a factor in your business endeavours.

Now I need to jump ahead of myself here; to draw on material I did not have access to at this time, but which reveals something of what was going on in the telephone exchange while my business was sinking.

In 1994 we COT members all ended up involved in arbitrations with Telstra. According to the rules of arbitration, Telstra had a legal obligation to provide us with relevant documents under the Freedom of Information Act.

You will hear a lot more about this in due course, not least about the unreasonable time it took for FOI document requests to be delivered (often years too late); enough to say here, that in an FOI release in mid-1994, I received documents referring to the general congestion problem at Cape Bridgewater.

The second paragraph of a document titled ‘Subject PORTLAND – CAPE BRIDGEWATER PCM HBER’ of 12 July 1991, was of particular interest:

When the ‘A’ direction of system 2 was initially tested, 11,000 errors per hour were measured. In the ‘B’ direction, approximately 216 errors per hour were measured; 72 errors per hour is the specified number allowable.

This level of error was in fact known at least as early as February 1990, the very time my complaints were being stonewalled. And nor was it acknowledged to me at the time of writing (July 1991). And in the new exchange, the problems continued, as another document, titled ‘Portland — Cape Bridgewater — RCM System’ showed, referring to information logged in March 1993, long after Telstra had first reported these massive error rates:

Initial error counter readings, Portland to Cape Bridgewater direction:
	System 1	System 2	System 3
SES	0	0	0
DM	45993	3342	2
ES	65535	65535	87
At this stage we had no idea over what period of time these errors had accumulated.

The second page of this document explains why they ‘had no idea over what period of time these errors had accumulated’:

The alarm system on all three RCM systems had not been programmed. This would have prevented any local alarms from being extended back to Portland.

They didn’t know how long these errors had been accumulating because, from 18 August 1991, when the new exchange (RCM) was installed at Cape Bridgewater, the fault alarm system had been left unconnected. Since this was an unmanned exchange, no one could know when faults occurred — except, of course, us poor, defenceless customers.

This means that in September 1992, when Telstra management wrote to me stating that the quality of my telephone service was guaranteed up to network standard, they failed to realise that this alarm had not been connected. Even the local telephone technicians were oblivious to the call loss due to the unconnected alarm system in the exchange. What kind of investigation into the faults I had reported over several years does this demonstrate? A farcical one. How, for several years, could they fail to notice that the alarm wasn’t connected?

A compensation deal

The formation of COT had come not a moment too soon for me. The frustration of struggling with problems that seemed immune to complaints, and about which I could do nothing but complain, could finally be shared. I had lost faith in my own judgement by this time; I had let down two different partners who had trusted me, and I was now borrowing from friends just to keep the camp running on a day-to-day basis. Through all of this, of course, the phone faults implacably continued.

The COT group continued to negotiate with Austel and Telstra, and in late 1992 our combined pressure finally produced results: Telstra approached me with a proposal for a compensation payout which included a confidentiality agreement to the effect that I would not disclose the value of any settlement which resulted from this. I signed this agreement on 11 December 1992, and I have honoured my word not to disclose the amount of the payout without prior approval by Telstra.

That same day, I went to Telstra’s city fault centre where the area general manager and I began a long discussion regarding the extent of my financial losses over the four and a half years since I first complained about the phones. This manager and I were the only people involved in this discussion. I provided her with copies of numerous letters I had received from clients and tradespeople, describing their experiences trying to ring me, and I explained how I had calculated the sum of my losses.

On several occasions, the manager left me alone to examine documents she had given me. As she left on the first occasion, she explained that she would close the door so I could read in private and added that, if I needed to discuss anything with my advisors I was free to use the telephone: there was a direct outside line available at all times so I wouldn’t need to speak to an operator within the building. I made use of the phone a couple of times to ring Karen and talk over the offer; together we calculated how much I needed to repay her.

The documents provided by the manager were mostly hand-written and included copies of the so-called ‘guarantees’ I had received. According to one of the documents, there was only a ‘single’ fault, lasting only ‘three weeks’, that triggered the recorded message (RVA) that my number was not connected. This document claimed that the RVA probably caused me to lose only about 50% of all incoming calls over this three-week period. Other documents referred to a minor fault in the phone exchange at Heywood plus some other minor faults which may have contributed to some call loss. The manager told me that Telstra agreed to accept responsibility for these faults if I accepted their offer.

I protested and reeled off again the continuing and constant complaints I had been and still was getting from customers. Her response was a simple ‘take it or leave it’: this was Telstra’s last offer, she told me, and the only other avenue I could follow would be court proceedings. Her final comment was along the lines that, ‘Telstra has more time than you have money to fund court proceedings.’ Reluctantly, but feeling I had no other choice, I accepted. My reluctance was well justified.

By August 1993 came my first bundle of FOI documents from Telstra. In it, astonishingly, was a Telstra minute of 2 July 1992, which revealed that local Telstra technicians regarded my complaints were correct about the ‘service disconnected’ RVA on my line. Not only that, but the observation was also made that the problem, ‘is occurring in increasing numbers as more and more customers are connected …’ Senator Alston raised this document in Senates Estimates in February 1994, demanding a response from Austel. No response was forthcoming, and nowhere else did this revelation gather any advance for my cause.

And two years later I received a copy of an FOI document headed Telecom Secret. This was a copy of the notes brought by the manager to the settlement meeting. The opening page, reproduced here, shows all too clearly that Telstra knew how solid my case was. The manager had blatantly misled me into agreeing to sign.

The document goes on to state,

‘Mr Smith’s service problems were network related and spanned a period of 3–4 years,’ and ‘Overall, Mr Smith’s telephone service had suffered from poor grade of network performance over a period of several years; with some difficulty to detect exchange problems in the last 8 months.’

My acceptance of the offer notwithstanding, I continued to experience faults in my phone service, particularly call dropouts when, part-way through a conversation, the line would simply go dead, and short duration rings when the phone would ring once or twice and then stop, with no-one there if we picked up the receiver. Finally, in October of 1992, the area general manager arranged for two testing machines (called ‘Elmi’ machines) to be installed, one at the local Cape Bridgewater exchange and the other at my office.

On 13 October I reported four calls dropping out, at 1.20, 1.40, 2.00 and 3.00, and an occasion when I had answered the phone to find a deadline. Despite the Elmi machines, the Telstra technicians found, as they had in so many instances before, no faults that they could detect. What was going on?

It was two years before I got any elucidation from Telstra, and even then, it shed no light on the matter. In 1994, in a bundle of FOI documents I received was a hand-written file note stating,

‘We had the Elmi disconnected at the RCM and were installing it at Mr Smith’s house and the CCAS showed no evidence of above 1.20, 1.40, 2.00 and 3.00.

This was simply not the case at all; I knew they were not installing it at my house at this time; it was already installed. So, I asked Telstra to supply their Elmi printouts from September–October 1992. Some weeks later several documents arrived, including tapes which show that the call dropouts and deadlines that I had experienced appeared on Telstra’s monitoring equipment (CCAS) records as answered calls at approximately 1.30 pm and 3 pm.

I could not fathom why a local technician would state that the Elmi equipment was disconnected at the exchange and to be installed at my house when these two print-outs show that it was installed and operating at both locations, albeit incorrectly. I could only assume that all this reflected the competence and capacity of Telstra’s fault centre, as well as the accuracy of their records and reportage. That thought alone was very worrying when you are reliant on the telephone.

And now I began to suspect that there might not be a simple answer to the phone faults, just waiting to be discovered and fixed. It looked as if the problems were endemic throughout the organisation and its infrastructure.  

As I struggled from the end of 1992 to the New Year of 1993 I began to wonder if ‘settling’ with Telstra had been such a good idea. Nothing had changed. I had been forced to re-finance, incurring more set-up fees, and because I still couldn’t afford to maintain the camp properly the place was looking decidedly abandoned. I felt as if I had been abandoned too. Both the buildings and I were tired, run-down and in need of a face lift!

The other COT members were no better off. Maureen and Ann had also accepted settlements directly from Telstra, while Graham had his through the courts. And for each of us, poor and faulty phone service continued unabated.

My only source of strength at this time was from my fellow COT members. One Saturday evening a couple of Scotches left me in tears of complete frustration. I knew I was easily capable of running the camp as I pictured it but instead, I was trapped in a vicious cycle. Without customers I would soon be completely broke, but the customers couldn’t reach me because the phones didn’t work. Right then Graham Schorer rang, urging me to hang in there, convinced that we would win out in the end.

Yes, some calls did get through, in what proportion I shall never know, though perhaps the rate is indicated by the following story. In personal desperation, I decided to ring Don Burnard, a clinical psychologist the COT members had contacted when we were first creating the group. Dr Burnard had written a report regarding our individual conditions, noting the breakdown in our psychological defences due to the excessive and prolonged pressures we endured:

All these clients have been subjected to persistent environmental stress because of constant pressure in their business and erratic patterns of change in the functioning of their telephones which were essential to the success of their businesses.

I rang Dr Burnard for support, but my conversation with his receptionist was interrupted three times by phone faults. Later I received a letter from his office, saying:

I am writing to you to confirm details of telephone conversation difficulties experienced between this office and our residence mid-morning this day, 5 May 1993. At approximately 11.30 am today Mr Alan Smith telephoned this office requesting to speak with Don Burnard. Mr Burnard was not available to take his call. During this time the telephone cut out three times. Each time Mr Smith telephoned back to continue the call.

Ann Garms and Graham Schorer had, by now, become my ‘comrades in arms’ in this war we were fighting, and we had many group discussions as we tried to find a way to deal with the evasions and deceptions of Telstra management. But we were simply three small-business people struggling against the might of a huge corporation. Not encouraging odds! We wondered if we could ever be able to expose Telstra’s unethical corporate strategies and continued and apparently deliberate mishandling of our complaints. And Ann, like me, had begun to suspect that our phone lines were being bugged. I will return to this later, once we were able to provide evidence that our concerns were valid.

Early in 1993, as spokesperson for COT, Graham Schorer met with Robin Davey, the chairman of Austel (the telecommunications industry regulator) to discuss our way forward. Austel was sympathetic to our situation. It recognised we had been let down in our settlements and sought to establish a standard of service against which Telstra’s performance could be objectively measured in any future settlements.

Meanwhile, COT decided it was time to try to inform the Australian Senate of our plight. We sent submission after submission, with supporting FOI documents, and followed through with visits to Canberra, financed from our already depleted pockets, to meet with ministers who were sympathetic to our case.

By now I had accumulated more than seventy letters from customers who had been unable to reach me by phone. This example, from a year 7 co-ordinator for Hamilton High School (now Bainbridge College), who brought his group along every February from 1990, is typical:

I wish to acknowledge in writing the repeated difficulty I have had contacting Alan Smith at the Cape Bridgewater convention centre by telephone. In the week March 1st to 5th, I made 5 or 6 attempted phone calls to Alan, but I was unable to get through, indeed the line was ‘dead’. This was extremely frustrating and had I not been aware of Alan’s phone problems, I would have used another camp site.

Astonishingly, one letter, dated 17 May 1993, was from a senior Telstra technical engineer, who wrote regarding his own experience of trying to ring me:

On the 24/2/93 I received a phone call from a technician at Portland who stated he had been given a fault from (1100 fault dept.) indicating a customer in Ballarat had trouble calling your business 055 267 267. I then attempted to ring 055 267 267 myself, the ring was tripped after several bursts, i.e. ‘answered’ and I received a loud noise like a radio carrier noise and a very faint ‘Hello’.

At last, a second person inside Telstra acknowledged that I had a problem with the phone service! The engineer had even given me his name. Yet during their defence of my arbitration claims, Telstra proffered a Witness Statement from this man (made in December 1994) that included no reference to this.

Was the engineer pressured to stay quiet during my arbitration? I don’t know. Certainly, not all Telstra engineers or technicians treated COT complaints in good faith. Another Telstra technician, who experienced major problems during his official fax testing process on 29 October 1993, nevertheless advised the arbitrator that I had no problems with that service, even though the Telstra document that discusses these faults notes:

During testing the Mitsubishi fax machine, some alarming patterns of behaviour were noted, these affecting both transmission and reception. Even on calls that were not tampered with the fax machine displayed signs of locking up and behaving in a manner not in accordance with the relevant CCITT Group 3 fax rules.

In a similar incident, an FOI document regarding a complaint I lodged about my own phone service bears a hand-written note which states: ‘No need to investigate, spoke with Bruce, he said not to investigate also.’

Where was this attitude coming from? If from higher management, it seems an odd way to do business: exacerbating our problems so that we would only complain more.

In the first five months of 1993 I received another eleven written complaints, including letters from the Children’s Hospital and the Prahran Secondary College in Melbourne. The faults had now plagued my business, unabated, from April 1988 to mid-1993.

By now, due to COT’s pressure in Canberra, several politicians had become interested in our situation. The question was, would these politicians take any action on our behalf, or would they protect the ‘milking cow’ of the Telstra corporation?

In June 1993 the Shadow Minister for Communications, the Hon. Senator Richard Alston, was showing an interest. He and Senator Ron Boswell of the National Party both pushed for a Senate Inquiry into our claims and, I was recently told by an ex-Telstra employee, they were very close to pulling it off. If this Senate Inquiry had got off the ground, heads in Telstra might have rolled but it this didn’t happen, and those same ‘heads’ continue to control Telstra to this day.

Even though Senator Boswell is based in Queensland and most of the remaining members of COT are in Victoria, he has continued to offer his support. David Hawker MP, my local parliamentary member, was another who saw his ‘duty of care’ to his constituents and so answered our call for help. He took my claims seriously — indeed, he took the problem of poor phone service in his electorate seriously and was appalled at its extent. Mr Hawker sent me letters of support, put relevant people in touch with me, organised assistance for me, and has continued to go into battle on COT’s behalf for ten years now.

Non-connecting calls

While the politicians tried to launch a Senate Enquiry, COT continued to lobby Austel for assistance. Yet another telephone issue was affecting my business. In February 1993 I installed an 1800 free call number to encourage telephone business and right from the start experienced problems. Many calls to this number were not connecting; the caller heard only silence on the line and typically hung up. The business was thus potentially losing a client, but adding insult to injury, I was being charged for these non-connecting calls. Even worse, in many instances the caller heard a recorded announcement from Telstra to the effect that the number wasn’t connected. I first knew this problem was occurring through people reporting their difficulties trying to reach me. After this, I checked my bills carefully.

According to Telstra’s policy, customers are charged only for calls which are answered. Unanswered calls are not charged, and include:

… calls encountering engaged numbers (busy), various Telstra tones and recorded voice announcements as well as calls which ‘ring out’ or are terminated before or during ringing.

Between February and June 1993, I provided Austel with evidence of erroneous charging on unanswered calls on my 1800 service (in fact, it went on for at least another three years after that). John MacMahon, General Manager of Consumer Affairs at Austel, wanted a record of all non-connected calls and RVAs that were being charged to my 1800 account. To provide that, I needed the data from my local exchange.

Both Austel and the Commonwealth Ombudsman’s Office were aware that I made repeated requests of Telstra, under the rules of FOI, to provide me with the relevant data. Yet despite the involvement of these institutions, Telstra held out on me. In the end, it was more than a decade later that I received any of the relevant information, and that was through Austel. And of course it was too late by then, the statute of limitations on the matter had long expired.

I did not understand then, nor do I understand now, why Austel, as the government regulator of the telecommunications industry, was unable to demand that data from Telstra.

From June 1993 I had proof myself that Telstra knew the faulty billing in the 1800 system was a network problem from its inception.

 

 

Chapter 3 The Briefcase Saga
My constant complaints to Austel finally bore fruit when, for the first time in this story, Telstra investigators came to Cape Bridgewater. Dave Stockdale and Hugh Macintosh of Telstra’s National Network Investigation Division arrived at my office on 3 June 1993. At last, I thought, I would be able to speak directly to people who knew what they were talking about.

I should have known better. It was just another case of ‘No fault found.’ We spent some considerable time ‘dancing around’ a summary of my phone problems. Their best advice for me was to keep doing exactly what I had been doing since 1989, keeping a record of all my phone faults. I could have wept. Finally, they left.

A little while later, in my office I found that Aladdin had left behind his treasures: the Briefcase Saga was about to unfold.

The briefcase was not locked, and I opened it to find out it belonged to Mr Macintosh. There was no phone number, so I was obliged to wait for business hours the next day to track him down. But what there was in the briefcase was a file titled ‘SMITH, CAPE BRIDGEWATER’. After five gruelling years fighting the evasive monolith of Telstra, being told various lies along the way, here was possibly the truth, from an inside perspective.

The first thing that rang bells was a document which revealed Telstra knew that the RVA fault they recorded in March 1992 had lasted for at least eight months — not the three weeks that was the basis of their settlement pay-out. Dated 24/7/92, and with my phone number in the top right corner, the document referred to my complaint that people ringing me get an RVA ‘service disconnected’ message with the ‘latest report’ dated 22/7/92 from Station Pier in Melbourne and a ‘similar fault reported’ on 17/03/92. The final sentence reads: ‘Network investigation should have been brought in as fault has gone on for 8 months.’

I copied this and some other documents from the file on my fax machine, and faxed copies to Graham Schorer. The next morning, I telephoned the local Telstra office, and someone came out and picked the briefcase up.

Just the information in this document of 24 July 1992 was proof that senior Telstra management had deceived and misled me during negotiations with me and showed too that their guarantees that my phone system was up to network standard were made in full knowledge that it was nowhere near ‘up to standard’.

Not only was Telstra’s area general manager fully aware at the time of my settlement on 11 December 1992 that she was providing me with incorrect information which influenced my judgement of the situation, placing me at a commercial disadvantage, but the General Manager, Commercial Victoria/Tasmania was also aware of this deception.

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.

Considering 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. The following Telstra internal document dated 23 August 1993 and labelled as ‘folio R09830’ with the subject listed as ‘The Briefcase’ is alarming to say the least. This document, which had been copied to Telstra’s Corporate Secretary, notes:

“Subsequently it was realised that the other papers could be significant and these were faxed to but appear not to have been supplied to Austel at this point.”

"The loose papers on retrofit could be sensitive and copies of all papers have been sent to Ross Marshall”.

I sent off several Statutory Declarations to Austel explaining what I had seen in the briefcase.

On 27 August 1993, Telstra’s Corporate Secretary, Jim Holmes, wrote to me about the contents of the briefcase:

Although there is nothing in these documents to cause Telstra any concern in respect of your case, the documents remain Telstra’s property and therefore are confidential to us … I would appreciate it if you could return any documents from the briefcase still in your possession as soon as possible.

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

Flogging a dead horse

By the middle of 1993, people were becoming interested in what they were hearing about our battle. Several articles had appeared in my local newspaper and interstate gossip about the COT group was growing. In June, Julian Cress from Channel Nine’s ‘Sixty Minutes’ faxed me:

“Just a note to let you know that I had some trouble getting through to you on the phone last Thursday. Pretty ironic considering that I was trying to contact you to discuss your phone problems.

The problem occurred at about 11AM. On the 008 number I heard a recorded message advising me that 008 was not available from my phone and your direct line was constantly engaged.”

Pretty ironic all right!

A special feature in the Melbourne Age gave my new ‘Country Get-A-Ways’ program a great write-up — I was marketing week-end holidays for over-40s singles in Victoria and South Australia: an outdoor canoe weekend, a walking and river cruise along the Glenelg River and a Saturday Dress-up Dinner Dance with a disco as well as a trip to the Coonawarra Wineries in South Australia with a Saturday morning shopping tour to Mt Gambier. I began to feel things were looking up for the camp.

It was too much to hope, however, that my telephone saga was at an end. On 26 October a fax arrived from Cathine, a relative of the journalist who had written the Age feature:

Alan, I have been trying to call you since midday. I have rung seven times to get an engaged signal. It is now 2.45 pm.

Cathine had been ringing on my 1800 free-call line. I had been in my office and there had been no calls at all between 12.30 and 2.45 that day. What was going on? (Telstra’s data for that day shows one call at 12:01, lasting for 6 minutes and another at 12:18, lasting for 8 minutes.) I cannot express how frustrating this was; there seemed to be no end of it in sight. But I was determined not to let the bastards get me down. Their lies and incompetence had to be exposed.

I stepped up my marketing of the camp and the singles weekends, with personal visits to social clubs around the Melbourne metropolitan area and in Ballarat and Warrnambool. I followed with ads in local newspapers in metropolitan areas around Melbourne and in many of the large regional centres around Victoria and South Australia. I also placed ads for the Get-Away holidays in the 1993 White Pages — or rather, I tried to: the entries never made it into the telephone books. I complained of this to the TIO (the Telecommunications Industry Ombudsman), who attempted to extract from Telstra an explanation for my advertisements being left out of 18 major phone directories.

As the Deputy TIO said in his letter to me of 29/3/96, he believed his office would simply ‘be flogging a dead horse trying to extract more’ from Telstra on this matter. (In fact, the TIO is an industry body supervised by a board, the members of which are drawn from the leading communications companies in the country: Vodaphone, Optus and, of course, Telstra.)

Between May and October of 1993, in response to my request for feedback, I received many letters from schools, clubs and singles clubs, writing of the difficulties they had experienced trying to contact the camp by phone. The executive officer of the Camping Association of Victoria, Mr Don MacDowall, wrote on 6 May 1993 to say that 10,000 copies of their Resource Guide, in which I had advertised, had been direct mailed to schools and given away. Most of the other advertisers with ads like mine, he said, had experienced an increase in inquiries and bookings after the distribution of these books and so it seemed evident to him that the ‘malfunction of your phone system effectively deprived you of similar gains in business.’ He also noted that he had himself received complaints from people asking why I was not answering my phone. All in all, during this period, I received 36 letters from different individuals as well more than 40 other complaints from people who had tried, unsuccessfully, to respond to my advertisements. The Hadden & District Community House wrote in April 1993:

Several times I have dialled 055 267 267 number and received no response — deadline. I have also experienced similar problems on your 008 number.

Our youth worker, Gladys Crittenden, experienced similar problems while organising our last year’s family camp, over a six-month period during 1991/1992.

In August 1993 Rita Espinoza from the Chilean Social Club wrote:

“I tried to ring you to confirm our stay at your camp site. I found it impossible to get through. I tried to ring later but encountered the same signal on the 10th of August around 7 – 8.30 pm. I believe you have a problem with the exchange and strongly advise you contact Telstra.

Do you remember the same problem happened in April and May of this year?

I apologise but I have decided with another camp.”

A testing situation

Late in 1993 a Mrs Cullen from Daylesford Community House informed me that she had tried unsuccessfully to phone me on 17 August 1993 at 5.17, 5.18, 5.19 and 5.20 pm, each time reaching a deadline. She had reported the fault to Telstra’s Fault Centre in Bendigo on 1100, speaking to an operator who identified herself as Tina. Tina then rang my 1800 number, and she couldn’t get through either. Telstra’s hand-written memo, dated 17/8/93, records the times that Mrs Cullen had tried to get through to my phone and reports Tina’s failed attempt to contact me.

A copy of my itemised 1800 account shows that I was charged for all four of these calls, even though Mrs Cullen never reached me. All this information was duly passed to John MacMahon of Austel and, soon afterwards, Telstra at last arranged for tests on my line. These were to be carried out from several different locations around Victoria and New South Wales. Telstra notified Austel that some 100 test calls would take place on 18 August 1993 to my 1800 free-call service.

First thing that morning I answered two calls from Telstra Commercial, one lasting six minutes and another lasting eleven minutes, as they set up in readiness for the test calls expected that day. Over the rest of that day, there were another eight, perhaps nine, calls from Telstra, which I answered. Some days later my 1800 phone account arrived, showing more than 60 calls charged to my service. I queried this with Telstra, asking first how I could be charged for so many calls which did not ring, and next, why I should be paying for test calls anyway. I did not ask, but perhaps should have, how more than 60 calls could all be answered in just 54 minutes when the statement shows that some of these calls came through at the rate of as many as three a minute.

Telstra wrote to Austel’s John MacMahon on 8 November 1993, informing him that I had acknowledged answering a ‘large number of calls’ and that all the evidence indicated that ‘someone at the premises answered the calls.’ Austel asked for the name of the Telstra employee who made these so-called successful calls to my business, and I have also asked for this information, but Telstra didn’t respond.

Then on 28 January 1994, I received a letter from Telstra’s solicitors in which they referred to ‘malicious call trace equipment’ Telstra had placed — without my knowledge or consent — on my service between 26 May and 19 August 1993. This was the first I’d heard of it. This device, they explained, apparently caused a 90-second lock-up on my line after a call was answered, meaning that no further call could come into my phone for 90 seconds after I hung up.

This information put another complexion on the matter of those four calls from Mrs Cullen I was charged for in the space of a single 28 seconds, as well as the 100 test calls from Telstra. Even supposing I was able to answer the phone at such a fast rate, the malicious call tracing equipment, apparently attached to my line at that time, was imposing its 90-second delay between calls, making most of these calls impossible. Telstra management, of course, had nothing to say about this.

What was going on? As far as I could tell, most of those 100 test calls simply weren’t made, indeed couldn’t have been made.

Late in 1994 I received two FOI documents concerning these calls. K03433 and K03434 showed 44 calls, numbered between 8 and 63, to the Cape Bridgewater exchange, nine of which had tick or arrow marks beside them. More than once, I asked Telstra what the marks represent but received no response. I presume, however, that these marks were made by a technician against the calls which I received and answered. A note on K03434 read:

Test calls unsuccessful. Did not hear STD pips on any calls to test no. The TCTDI would not work correctly on the CBWEX (Cape Bridgewater Exchange). I gave up tests.

The technicians themselves gave up on their testing procedure! A second series of tests conducted a year later in March 1994 fared little better. Telstra’s fault data notes that only 50 out of 100 test calls were successfully connected. This information was of no use to me at the time, however, as it was withheld from me until September 1997. All I was to hear in 1994 was the old refrain: ‘No fault found.’

Only one official document drew attention to the incapacity of Telstra’s testing regime, and this was the Austel Draft Report regarding the COT cases, dated 3 March 1994, which concluded:

Cape Bridgewater Holiday Camp has a history of services difficulties dating back to 1988. Although most of the documentation dates from 1991 it is apparent that the camp has had ongoing service difficulties for the past six years which has impacted on its business operations causing losses and erosion of customer base.

In view of the continuing nature of the fault reports and the level of testing undertaken by Telecom doubts are raised on the capability of the testing regime to locate the causes of faults being reported.

This conclusion would have been a triumph for me and for all the COT members — IF we had known of it. But this draft report, based upon the evidence we provide to Austel, was kept from COT members until 2007, long after it could have done us any good.

By law, this Draft Report should have been presented to the Minister for Communications, but it was never tabled or made public. The following month, the ‘final’ edited report was released, with significant alterations made at the behest of Telstra — including a general (and sometimes specific) watering down of findings and the deleting of this conclusion.

The details of this draft report and the ramifications of withholding it are discussed in depth later. Suffice to say here that if I had had access to its findings in March 1994, my case would have very likely been resolved in short order. Instead, along with my fellow COT members, I was pushed into a legalistic process in which Telstra, with its teams of lawyers, held all the cards.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Chapter 4 Towards a Settlement Proposal

Telstra management was trying to force COT members into court, 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.

The author of this internal Telstra memo to senior executives on 21 April 1993, for instance, referred to raising the issue of court with us:

That carries an implied threat not only to COT cases but to all customers that they’ll end up as lawyer fodder. Certainly, that can be a message to give face to face with customers and to hold in reserve if the complainants remain vexatious …

The aim could only be construed as to wear us down and ‘hang us out to dry’ as an example to others who might wish to bring future complaints. And a copy of a Telstra email dated 28 September 1993, while referring to the ‘duress that the COT members are suffering’, goes on to say:

… we can’t afford to let anything get away … our best option is still to force these cases down a legal structured path.

Once Telstra management decided claimants were becoming ‘vexatious’, this was the time to threaten legal action. Behind its public face of a supposedly benevolent, government owned corporation acting for the good of the public — an organisation Australians were being exhorted to trust with radio and television advertisements bombarding us night and day — Telstra management intended to turn legitimate claimants into ‘lawyer fodder’ if they persisted with their claims.

And if there was any remaining doubt as to Telstra’s attitude to complainants, I offer this from an investigation by the Senate Estimates Committee into Telstra’s conduct during the COT arbitrations in 1994, where Senator O’Cheer and Senator Schacht are asking questions of Telstra whistle-blower Lindsay White:

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

Mr White: There was never any reference to time, ‘as quickly as possible,’ but the induction process was, as I said before, that the first five had to be stopped at all costs.

Senator SCHACHT: … Can you tell me who, at the induction briefing, said ‘stopped at all costs?

Mr White named the same Telstra technician who, two years previously, had submitted false evidence to the arbitrator when advising him that Telstra’s service verification tests conducted at my business had met all Austel’s requirements even though Austel had advised him the testing was grossly deficient.

But again, I am getting ahead of my story. In November 1993 I complained to Austel’s John MacMahon that Telstra’s General Manager (Commercial) had instructed both Graham Schorer and me to direct all future phone complaints, in writing, through a firm of solicitors in Collins St, Melbourne. This was a strategy intended to wear us down or force us to hire our own legal practitioner to deal with Telstra’s solicitors. The time and effort involved in documenting and following up the ongoing faults, while trying to run a failing business, was certainly wearing me down and therefore worked in Telstra’s favour. Sometimes I waited up to two weeks for a response from their solicitors.

In the meantime, I struggled to keep focussed on what COT was pushing for: a Senate Inquiry into Telstra’s unethical treatment of our small group of claimants — which we finally achieved in 1997. A letter of support for the Senate Inquiry from a worker at D. Madden & Co of Warrnambool (Lawyers), dated 10/11/93, gave added heart to my decision to fight on. (My name had been passed to Madden & Co by Mr David Hawker, the local Member of Parliament, about a public meeting COT was organising.)

“I am writing about the proposed Senate Committee Investigation into Telstra.

As you are aware, I am employed as a telephonist with a large legal firm in Warrnambool. In the course of my employment, and particularly during the months of July and August this year, numerous service faults have been brought to my attention. These problems include:

1.         Calls being disconnected during conversation.

2.         Recorded messages informing Melbourne clients and callers that the number has been disconnected when the correct number was dialled.

3.         An engaged signal received by callers despite several lines being available.

4.         Complaints from callers that the line has rung out when no ringing tone has been received at the number dialled.

Our firm duly contacted Telstra on several occasions to have these fault rectified. However, Telstra technicians were constantly unable to identify the numerous problems and subsequently remedy our complaints.”

On 12 November 1993, I faxed a copy of this letter to Telstra’s solicitors, together with more information on incorrect charging, during which having occasion to write to the Collins Street solicitors:

“On trying to fax you the information you received this morning I had quite some difficulty in getting all the pages through at a given time. Note the page errors which I have enclosed.”

By now Austel was concerned at Telstra’s approach to our complaints, particularly their use of outside solicitors. In October 1993, Austel’s chairman Robin Davey told Ian Campbell of Telstra’s Commercial division that Austel would not be happy if outside solicitors were used in future COT matters. Mr Davey’s polite suggestion fell on deaf ears however and, through to 28 January 1994, Telstra continued to insist that I register my complaints through their solicitors. Later, when Telstra submitted their defence of my arbitration, these same solicitors also acted as their defence counsel.

At the end of 1993 the COT group was lobbying hard on two counts. First, we were pushing for settlements in the form of a Commercial Assessment that would properly address the financial losses our businesses had suffered. This would be a specifically non-legalistic process. The Labor government of the time had endorsed it as the most appropriate path towards justice in our cases.

At the same time, it seemed that there was a strong possibility that a Senate Inquiry would be set up. Two Senators were pushing for this, the Shadow Minister for Communications, Senator Richard Alston, and Senator Ron Boswell. We had informed Senator Alston’s office that we were hearing from many other unhappy Telstra customers around Australia. The faults they reported indicated that problems within the Telstra network were more widespread than Telstra would have the government know. All this information we passed to Austel and to Senator Alston.

The BCI report, November 1993

As an initial step in the process towards a commercial settlement, Austel arranged for an international expert to be brought to Australia to review our claims. Bell Canada International Inc (BCI), technical telecommunications specialists from Ottawa, Canada, arrived to run tests on phones connected to the businesses belonging to the various COT members. In my case, these tests were allegedly carried out between 4 and 9 November 1993, a period when faults on my line were particularly troublesome.

At the conclusion of their tests BCI produced a report which found that Telstra’s network more than met global performance standards, and that Telstra had ‘all the tools, skills and procedures it needs to detect and locate troubles reported by COT customers.’ The report said that the faults found during their testing (involving ‘more than 82,000 test calls using artificial call generating and answering equipment’) were insignificant and would not manifest in the types of problems reported by COT customers. So, the lines into the Cape Bridgewater exchange were up to world standard.

Incredibly, BCI technicians had come halfway around the world to give an expert opinion on our problems, and they didn’t test the line between my business and the exchange.

In the event, it turned out they didn’t even test the lines into the Cape Bridgewater exchange, as the equipment they brought was apparently incompatible for the task. (Instead, they tested the lines into another exchange nearby, but which had nothing to do with my line.) Therefore, any conclusion they produced had to be a fabrication.

I did not have this information at the time. In October 1997, the issue was raised in Senate Estimates, and Telstra was questioned as to the validity of the purported testing. Telstra affirmed the validity of BCI’s testing with supporting documentation that could only have been fabricated as I have shown on several grounds, not least that BCI’s equipment did not work at that exchange. Was Telstra ever brought to account for this? No.

The BCI report was not acceptable to Austel on several grounds. Austel’s Cliff Matherson wrote to Telstra’s Commercial General Manager, spelling out its deficiencies over three pages, and ended:

… the BCI report should not be made available to the Assessor(s) nominated for the COT cases without a copy of this letter being attached to it.

Telstra, however, was not inclined to comply, and wrote to Austel’s Robin Davey:

The conclusion to be reasonably made from these events is that Austel publicly judges the BCI report ‘Fails to live up to the expectations raised by the terms of reference.’

Reasonable inferences might be drawn about deficiencies in the competence, professional standing and integrity of BCI, and the competence and integrity of Telstra and myself in the conduct of the study and representation of the findings …

Considering the above circumstances, Telstra cannot agree to attach a copy of Austel’s letter of 9 December to the BCI report if the latter is made available to the assessors nominated for the COT cases.

And, indeed, in my arbitration, Telstra did use the defective BCI report to support its defence of my claims and did not attach a copy of Cliff Matherson’s letter for my arbitrator. The ethics of this were never addressed, either by the Hon Richard Alston, Minister for Communication or by the TIO, though I made sure both were aware of the circumstances.

What level of shared interest may have existed between BCI and Telstra, I do not know. Letters exchanged between them in late 1994 acknowledged that the BCI tests, as reported in their Cape Bridgewater report of 10 November 1993, were problematic. (I did not, of course, have access to these letters then; it was several years later before they were provided to me.)

In a letter to Mr Kealey of Bell Canada, Telstra referred to the tests run from the Richmond digital exchange to the Portland exchange test line, detailed in section 15.23 of the BCI report, as ‘impracticable.’  This was (at least partly) because Telstra were themselves conducting ‘NEAT’ testing to the same test line in Cape Bridgewater, at the same time on the same days. The BCI test report shows that except for a single day, all their testing took place between 28 October and 8 November, between 8 am and 10 pm.

Under those circumstances, it was not possible for either set of tests to provide accurate results. This is because, as Telstra’s letter to Austel itself explained, each NEAT test takes up to 100 seconds and, while it is occurring, no other test of any kind can take place. And, just for the sake of argument supposing it could, the BCI tests needed 15 seconds between each call to reset the system, otherwise the second call would get a false engaged signal. Examining the test reports from both Telstra and BCI, it is glaringly apparent that there was nowhere near enough time to fit in the calls listed. The BCI report alone shows a total of 1675 + 328 calls made to the exchange test number at Cape Bridgewater from two separate locations in the Melbourne metropolitan area, over the same time. This means the BCI testing could not have taken place at the time claimed in their report. My conclusions here are confirmed in a technical report prepared at the request of COT in 2007 by Brian Hodge, who on several grounds concluded that the Bell Canada tests could not have been performed as stated. (Mr Hodge had been a senior technician for Telstra for nearly 30 years before becoming a freelance telecommunications consultant.)

Whether the BCI Report was falsified or its inaccuracies were the result of confusion or incompetence, I cannot say. Certainly, a culture of confusion surrounded both BCI and Telstra’s reporting. Even Austel was confused. In its COT Cases report I found:

“Telstra’s more recent assessment of the effect of the Cape Bridgewater RCM fault on Mr Smith’s service not only conflicts with the contemporaneous report quoted in paragraph 7.31 above, but also does not accord with Telstra’s contemporaneous GAPS record for September 1992 which shows a significantly higher complaint rate of ‘call drop out’ and ‘no ring received’ for customers who were reliant on the defective plant than those dependent on the remainder of the Cape Bridgewater RCM.”

In June 1994 I challenged Telstra to prove that I was wrong in my allegations about the inaccuracies of the BCI report. Their silence was as usual deafening.

Two weeks after my arbitration had been completed and my appeal time had totally expired; I received key FOI documents confirming precisely my suspicions about the BCI testing. A letter dated 6 September 1994, from Telstra to Bell Canada, states:

“Specifically, the start and finish times for the test run from Richmond digital exchange (RCMX), test line 03 428 8974, to Portland exchange, Cape Bridgewater RCM (CBWR) number range, test line 055 267 211 (detailed in section 15.23 of the report) are impracticable. The number of calls made during the test run could not have been completed within the time span shown and the test run would have clashed with other test runs performed within those times.”

In fact, I believe the statement made was based on my correspondence on the matter. An internal Telstra email (which I did not see until several years later), headed ‘Smith Query on BCI Tests’, supports this:

“Mr Smith is correct in the suggestion implied in his query that the test results recorded in the ‘Addendum – Additional Tests’ part of the BCI report to Telecom, 1 November 1993, are impracticable.”

I wrote to BCI in Canada three times regarding the errors in their test report but never received a reply.

Telstra knew from the start how unreliable was the BCI report they provided to the Senate in 1993 to support their assertion that their network into the Cape Bridgewater exchange was up to world standard. In fact, Telstra continued to mislead the Senate for many years about the true standard of their network. And it was not only Telstra. Austel had been the first to bring up the deficiencies in the BCI report. It could have spoken out publicly against Telstra’s misuse of the report in the arbitrations, but it never did.

Of course, any ordinary punter reading BCI’s report would be ready to believe that Telstra’s phone network was up to standard because BCI is an international, highly regarded communications company and because it said that thousands and thousands of test calls were made to the exchange that my phone was connected to, with a 99.5% positive result. The first conclusion of the ordinary punter, then, would have to be that my claims were unsubstantiated, even wacky.

But these ‘thousands of calls were not made, could not have been made as I have shown, and Telstra knowingly provided a flawed document to support their defence. This is classified as perjury in a legal process. So why hasn’t Telstra been brought to account for their actions?

For years I have canvassed the Communications Minister and the TIO to have the BCI report withdrawn from Telstra’s defence, but my requests have fallen on deaf ears. The TIO and the various government ministers I have notified of the problems with this report have failed in their Duty of Care — they should have ensured this report was withdrawn from the Public Domain as soon as they were alerted to the serious flaws it contained.

COT is vindicated by audit

For all its faults, Austel was trying to be the honest broker, and it pressured Telstra to commission an audit of its fault handling procedures. Telstra engaged the international audit company of Coopers & Lybrand to report on its dealings with complaints like those raised by COT members. Coopers & Lybrand’s report conveys serious concern at the evidence we presented of Telstra’s unethical management of our complaints.

The Coopers report did not go down well with Telstra. The Group Managing Director of Telstra wrote to the Commercial Manager:

“… it should be pointed out to Coopers and Lybrand that unless this report is withdrawn and revised, that their future in relation to Telstra may be irreparably damaged.”

Strong words from the most senior manager below the CEO of a corporation which, at that time, had a monopoly hold on the telecommunications industry in Australia. Austel tabled the Coopers & Lybrand report in the Senate, but with some significant changes to what had appeared in the draft report. Regardless of those changes Coopers were still damning in their assessment to what had happened to the COT Cases.

The following points are taken directly from the Coopers & Lybrand report:

2.20     Some customers were put under a degree of pressure to agree to sign settlements which, in our view, goes beyond normal accepted fair commercial practices.

2.22     Telstra placed an unreasonable burden on difficult network fault cases to provide evidence to substantiate claims where all telephone fault information that could reasonably determine loss should have been held by Telstra.

(2)        Fault handling procedures were deficient in terms of escalation criteria and procedures, and there is evidence that in some cases at least, this delayed resolution of these cases.

3.5       We could find no evidence that faults discovered by Telstra staff which could affect customers are communicated to the staff at business service centres who have responsibility for responding to customers’ fault reports.

We COT four at last felt vindicated; we were no longer alone in claiming that Telstra really did have a case to answer.

It is clear however that the draft Coopers & Lybrand Report is much stronger worded against Telstra that its final report which Telstra released to the arbitrator.

A Fast Track (Commercial Assessment) Settlement Process

To summarise. Senators Alston and Boswell had taken up COT’s cases with Telstra and Austel in August 1993, saying that if they were not swiftly resolved there would be a full Senate Inquiry. Telstra agreed to cooperate, and Austel was authorised to make an official investigation into our claims.

As a result of their investigation, Austel concluded that there were indeed problems in the Telstra network and that the COT four had been diligent in bringing these issues into the public domain. It looked like four Australian citizens, without any financial backing, had won a significant battle. Sometimes, we thought, David wins over Goliath, even in the twentieth century.

Because we were all in such difficult financial positions, Austel’s chairman, Robin Davey, recommended that Telstra appoint a commercial loss assessor to arrive at a value for our claims. These claims had already been found generally to be valid in Austel’s Report, and it only remained for an assessor to determine an appropriate settlement based on the detailed quantification of our losses.

This ‘Fast Track Settlement Process’ was to be run on strictly non-legal lines. This meant we were not to be burdened with having to provide proof to support all our assumptions, and we would be given the benefit of the doubt in the quantification of our losses. This was the process Austel specifically deemed appropriate to our cases. Telstra was to give us prompt and speedy access to any discovery documents we needed to enable us to complete our claims as quickly as possible.

Telstra also agreed that any phone faults would be rectified before the assessor handed down any decision regarding payouts. After all, what good would a commercial settlement be if the phone faults continued? At last, we began to feel we were getting somewhere. Robin Davey also assured us that any costs we might incur in preparing our claims would be considered as part of our losses, so long as our claims were proved. He would not, however, confirm this assurance in writing because, he explained, it could set an unwanted precedent.

Telstra was anxious about setting precedents. On 18 November 1993, Telstra’s Corporate Secretary had written to Mr Davey pointing out that:

“… only the COT four are to be commercially assessed by an assessor.

For the sake of convenience, I have enclosed an amended copy of the Fast Track Proposal which includes all amendments.”

To facilitate its acceptance by all or any of the COT members I have signed it on behalf of the company. Please note that the offer of settlement by this means is open for acceptance until 5 pm Tuesday 23 November 1993 at which time it will lapse and be replaced by the arbitration process we expect to apply to all carriers following Austel recommendations flowing from this and other reviews.”

In effect, we four COT members were being given special treatment in terms of having a commercial assessment rather than the arbitration process. By this time Austel was dealing with another dozen or so COT cases. We four were being ‘rewarded’ for the efforts we had made over such a long period of suffering business losses. On the other hand, we were also being pressured by this rush — we would lose the option for a commercial assessment if we didn’t sign by 23 November, a mere five days away. The problem was, we were reliant on the supporting documents we needed for our claims. For these we were dependent on Telstra’s good will, and their track record gave us no confidence in that. We were also concerned about the lack of written assurance regarding compensation for preparational and other expenses.

On 22 November we turned for advice to Senator Alston, Shadow Minister for Communications. His secretary, Fiona, sent him an internal memo headed ‘Fast Track Proposal’, in which she conveyed our concerns:

“Garms and Schorer want losses in Clause 2(c) to include its definition, ‘consequential loss arising from faults or problems’ although Davey verbally claims that consequential losses is implied in the word ‘losses’ of which he has given a verbal guarantee he will not commit this guarantee to writing.”

“COT members are sceptical of Davey’s guarantee given that he will not commit it to writing. On top of this COT alleges that Telstra, in the past, has not honoured its verbal guarantees and so does not completely trust Davey.”

“COT want your advice whether COT should demand that clause 2(c) include a broader definition of losses to include consequential losses.”

“COT was hoping for your advice by tomorrow.”

There was no response from Senator Alston.

Graham, Ann, Maureen and I signed the FTSP the following day, hoping we could trust Robin Davey’s verbal assurances that consequential losses would be included and that Telstra would abide by their agreement to provide the necessary documents. I included a letter with the agreement, clearly putting my expectations of the process:

“In signing and returning this proposal to you I am relying on the assurances of Robin Davey, Chairman of Austel, and John MacMahon, General Manager of 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.

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.”

Despite nagging doubts, we felt a great sense of relief once we had sent off the agreement. The pressure on all four of us had been immense with TV and newspaper interviews as well as our ongoing canvassing of the Senate. And I had never stopped hammering for change in rural telephone services, at least in Victoria.

In December 1993 David Hawker MP, my local federal member, wrote to congratulate me for my ‘persistence to bring about improvements to Telecom’s country services’ and regretted ‘that it was at such a high personal cost.’

This was very affirming, as was a letter from the Hon. David Beddall MP, Minister for Communications in the Labor Government, which said, in part:

“Let me say that the Government is most concerned at allegations that Telecom has not been maintaining telecommunications service quality at appropriate levels. I accept that in several cases, including Mr Smith’s, there has been great personal and financial distress. This is of great concern to me and a full investigation of the facts is clearly warranted.”

Several other small businesses in rural Australia had begun to write to me regarding their experiences of poor service from Telstra: problems with their phones and various billing issues. I contacted Telstra management myself on several occasions, putting on record my requests for these matters to be resolved. I believe this was a responsible reaction to the letters I was receiving.

Rural subscribers wrote to TV stations and newspapers supporting my allegations that, about telephone services, rural small-business people, as well as the public, suffered a very bumpy playing field compared to our city cousins. David M. Thomson & Associates, Insurance Loss Adjusters in Ballarat, wrote to the producer of Channel 7’s ‘Real Life’, a current affairs program:

“I have watched with interest the shorts leading up to tonight’s program as I have similar problems to the man at Cape Bridgewater.

Our office is in Ballarat and due to Telstra structure, most of our local calls are STD-fee based.

On many occasions we have been unable to get through to numbers we have dialled, often receiving the message ‘This number is not connected’ or similar messages which we know to be untrue.

Clients report that they often receive the engaged signal when calling us and a review of the office reveals that at least one of our lines was free at the relevant time.

We have just received our latest Telstra bill which in total is up about 25–30% on the last bill. This is odd because our workload in the billing period was down by about 25% and we have one staff member less than the previous billing period.”

A letter to the Editor of Melbourne’s Herald-Sun, read:

“I am writing about 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 my home number and received no response – a deadline.”

I called near the end of February 1993, and on two occasions encountered a high-pitched noise resembling that of a fax machine.  I reported this incident to Telstra who got the same noise when testing.

(Because of several reports regarding this ‘piercing noise’, Ray Morris from Telstra’s Country Division arranged to have my service switched to another system. Unfortunately, this did not help.)

TV stations reported that their phones ran hot whenever they aired stories about phone faults. People rang from all over the country with complaints about Telstra’s service. This support from the media and the public boosted our morale and gave us more energy to keep going as a group. We continued to push to have these matters addressed in the Senate.

Muzzling the media

We were getting a good amount of media coverage, even though it appears likely that some journalists were being asked by Telstra to ‘kill’ certain stories.

A memo between executives within Telstra back in July, entitled ‘COT Cases Latest’, states, in part:

“I disagree with raising the issue of the courts. That carried an implied threat not only to COT cases but to all customers that they will end up as lawyer fodder. Certainly, that can be a message to give face to face to customers to hold in reserve if the complainants remain vexatious.”

We are left to wonder how many of Telstra’s customers like the COT Cases, who once they went into arbitration and/or mediation they ended up as lawyer fodder with broken homes and businesses destroyed?

A TV news program was also a target:

“Good news re Channel —— News. Haven’t checked all outlets but as it didn’t run on the main bulletin last night, we can be certain that the story died the death. I wish I could figure which phrase it was that convinced —— not to proceed. Might have been one of ‘(name deleted) pearls.”

The name deleted was Telstra’s Corporate Secretary at the time. I have omitted the identity of the TV station and reporter. We too can only wonder what it was that convinced a respected journalist to drop a story.

It transpired that the same area general manager who deliberately misinformed me during the settlement process in 1992–93 was one of the two Telstra staff appointed to ‘deal with the media/politicians’ regarding COT issues. Would she misinform the media the way she misinformed me, I wondered.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Chapter 5 Sold out

On 17 January 1994, the Telecommunications Industry Ombudsman (TIO) distributed a media release announcing that (name deleted) would be the assessor to the four COT Fast Track Settlements processes. What the TIO did not say was that, as I had feared, Telstra was not abiding by their agreement: they were not supplying us with the discovery documents critical for establishing our cases.

Telstra was treating us with sheer contempt, and in full view of the TIO and assessor. We were beginning to believe that no single person, and no organisation, anywhere in Australia, had the courage to instigate a judicial inquiry into the way Telstra steamrolled their way over legal process.

To be fair, Austel’s chairman, Robin Davey, was expressing his anger to Telstra about their failure to supply us our necessary documents, but it was to no avail. By February 1994, Senator Ron Boswell was asking questions of Telstra in the Senate, again to no practical avail. (Questions about this failure to supply FOI documents were raised in the Senate on several occasions over the following years, by various Senators, whose persistence ultimately paid off for some members of COT but, unfortunately, not for me.)

Worse than this, however, was a new problem for us COT four. The assessor had somehow been persuaded (presumably by Telstra) to drop the commercial assessment process he had been engaged to conduct and adopt instead an arbitration procedure based on Telstra’s arbitration process. Such a procedure would never be ‘fast-tracked’ and was bound to become legalistic and drawn out. Telstra knew none of us had the finances to go up against its high-powered legal team in such a process. This was the last thing we COT members wanted. We had signed up for a commercial assessment and that’s what we wanted.

Graham Schorer (COT spokesperson) telephoned the TIO, to explain why the COT four were rejecting the arbitration process. Our reasons were dismissed. The TIO said he had been spending too much time on his role as administrator of our FTSP; that his office had already incurred considerable expense because of this role (Telstra was slow in reimbursing those expenses), and that his office had no intention of continuing to incur expenses on our behalf. He told Graham that if we did not agree to drop our commercial agreement with Telstra then Telstra would pull out all stops with the aim of forcing us into a position where we would have to take Telstra to court to resolve our commercial losses.

Moreover, if we did decide to take legal action to compel Telstra to honour their original commercial assessment agreement then he (the TIO) would resign as administrator to the procedure. This action, he insisted, would have forced an end to the FTSP and left us with no alternative but to each take conventional legal action to resolve our claims.

The TIO had sold us out.

We had been imploring the TIO to let us continue with the original FTSP agreement, but our pleas fell on deaf ears. A letter dated 20 January 1994 from the Commonwealth Ombudsman to Telstra's Corporate Secretary notes: 

“...I received complaints from three of the COT Cases', Mr Graham Schorer, Mr Alan Smith and Ms Ann Garms,  concerning TELECOM's handling of their FOI applications under the Freedom of Information Act (FOI Act...and...In the circumstances, the giving of access to information required by the applicants to present their cases to the assessor appointed under the FTSP is in the general public interest'. A letter dated 17 February,1994 from Austel's Chairman to Telstra's Group General Manager notes:

” ...The thrust of the Fast Track Settlement Proposal was review and assessment”, here is further proof that our process was assessment. A pleading letter dated 14 April 1994, from COT Case Ann Garms to the TIO dated 14 April 1994, counter signed by Mr Schorer and me clearly shows we three wanted to remain in the FTSP assessment process. No one would take our pleas further. We had no choice but to prepare ourselves for an arbitration process. The first step was to familiarise ourselves with the rules of arbitration.

Signing for Arbitration — April 1994: A Bureaucratic Betrayal

It was 21 April 1994. The day we were told would mark the beginning of justice. A new arbitration process was being launched, and we—Graham Schorer, Ann Garms, and I—were expected to sign the agreement that would supposedly level the playing field between us and Telstra. But there was a catch. A glaring one.

We still hadn’t seen the rules.

We asked. We pressed. We wanted to know what we were signing up for. After all, Telstra had already tried to slip in their own ‘proposed rules’—rules that tilted the scales firmly in their favour. We needed to be sure this wasn’t just another trap. But the Telecommunications Industry Ombudsman (TIO) wasn’t interested in our concerns. They brushed us aside. And so, like lambs to the slaughter, we signed on the dotted line.

Just two days earlier, on April 19, the arbitrator’s secretary had faxed a version of the agreement—known as the FTAP Agreement—to our legal representatives, Mr. Goldberg and William Hunt. Mr. Hunt, to his credit, was alarmed. He sought urgent legal advice. Something didn’t sit right.

That version of the agreement included three crucial clauses on page 12:

•             Clause 24: Shielded the Administrator and Arbitrator from liability—unless they committed intentional wrongdoing.

•             Clause 25: Capped Ferrier Hodgson’s liability at $250,000 for any arbitration-related missteps (excluding breaches of confidentiality).

•             Clause 26: Did the same for DMR Group Australia Pty Ltd.

But when the final agreement arrived for our signatures on April 21, Clauses 25 and 26 had vanished. Gone. Erased. Instead, a bloated new Clause 24 had swallowed them whole, stating:

“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…”

In one stroke, the protections were gone. The $250,000 liability caps—our only sliver of recourse—were stripped away. Worse still, the new clause granted sweeping immunity to the arbitration’s Special Counsel, effectively removing any legal incentive for them to act with integrity or fairness. They could fail us, mislead us, or worse—and we’d have no legal ground to stand on.

And here’s the kicker: just a few months later, those very same liability caps were quietly reinstated in the agreements signed by the other twelve COT claimants. Not us. No explanation. No warning. No opportunity to revisit the original terms that had been faxed to our legal team.

Why were we treated differently? Why were we denied the protections others received? Why were we never told?

The inconsistency didn’t stop there. The TIO’s own Standard Arbitration Rules—used in other Telstra-related claims—clearly state in Rule 31:

“The liability of any independent expert used by the Arbitrator is limited to $250,000 for any act or omission on their part in connection with the Arbitration.”

So why were we left exposed?

This wasn’t just bureaucratic oversight. It was calculated. A quiet manipulation of legal language that left us vulnerable while cloaking those in power with immunity. It was a betrayal—not just of us, but of the very idea of justice.

And it’s a story that needs to be told.

The COT's had been told, Austel had been told, and the Senate had been told that the arbitration agreement rules had been drawn up specifically for the purpose, independently of Telstra, by the President of the Institute of Arbitrators of Australia. We asked for a copy of these rules, which had already, apparently, been supplied to the TIO’s office, but the TIO refused our request, saying that it was ‘irrelevant to our cause’ More than once we asked the TIO for a copy, to no avail. We were told we should trust the arbitrator. And so, foolishly, we did. We really had no choice. We were all exhausted, stressed and clutching at straws. Singly and as a group we were vulnerable to the mute force of Telstra’s corporate power.

The rules included a confidentiality agreement which prevented anyone involved in the arbitration process from discussing the conduct of the arbitration process. In other words, if either party committed an offence of a criminal nature, this confidentiality clause would effectively stop an investigation, thereby allowing a cover-up. In my case, even though the TIO and the arbitrator where aware Telstra had perverted the course of justice during my arbitration, this confidentiality clause has so far stopped any investigation into this unlawful conduct. 

Signing for arbitration, April 1994

On 21 April 1994 when we signed the documents to launch the new arbitration procedure, we still hadn’t seen the rules of arbitration. Not only did we want to see what

we were in for; we wanted to make sure that the rules really were different from Telstra’s ‘proposed rules. Our concerns were of no interest to the TIO however and so, as lambs to the slaughter, we signed on the dotted line. Later we discovered that the set of rules that had been supplied to the TIO’s office was headed "Telstra Corporation- Limited 'Fast Track' Proposed Rules of Arbitration". No wonder he had not wanted us to see it. The assurance we had been given as to the drafting of the rules had been a complete lie. Was anybody interested? I don’t need to give the answer to that.

My time now was focussed on preparing my case for arbitration. In April 1994 Austel released its report on the COT cases, and I used its findings and recommendations as a basis for my claims. I thought its findings in relation to my case were a lot milder than the original submissions I had made, but I learned that Austel had apparently had to tone it down because Telstra had threatened to enforce an injunction tying the report up for years. Austel had agreed to the amendments demanded by Telstra so that we COT four could have access to information in the report for the purpose of preparing our claims. I did not know then of the ‘secret’ draft that I mentioned at the end of Chapter Three. This I did not discover until 2007.

In the meantime, though, the Austel Report did confirm something for me. While I was hearing a constant refrain of ‘No fault found’ from Telstra, technicians were recording the truer picture. On occasions when I had rung to report the phone ringing once or twice, followed by no connection, officials had refused to acknowledge the fault, but in its report, Austel showed a different story:

“In the period February to April 1993 Telstra staff responding to complaints lodged by Mr Smith of the Cape Bridgewater Holiday Camp recorded in their notes that there was a fault known to exist in AXE (digital) switching equipment which could give rise to a single burst of ring, followed by a busy tone to a caller and dial tone to the called party.”

This was supported by quotes from technicians on the complaint forms:

“This problem occurs intermittently throughout the network and although it is recognised as a problem there appears to be no one person or group involved in resolving it.”

‘I believe this may be tied up with the axe network problem which gives only one burst of ring and the calling party gets busy tone.’

A new fault line

Even as I began to assemble my claims, there was a new fault to include. This was the ‘hang-up’ fault. While Telstra was refusing to send me documentary evidence for my claim, I was ringing their engineers about testing this hang-up fault, creating no doubt more evidentiary material that would be denied to me.

Since August 1993 I had complained to Telstra that customers and friends alike were commenting on the peculiar behaviour of my direct line, which was also a fax line. After I had hung up from calls, I had initiated they could (if they were slower to hang up) still hear me moving around the office. Because of all the other problems I was dealing with, I hadn’t paid much attention to this, but I needed now to come to grips with it.

On 26 April 1994, I phoned Cliff Matherson, a senior engineer at Austel, who suggested we carry out a series of tests. First, I was to hang up and count out loud, from one to ten, while he listened at his end. I did this; he heard me right through to the number ten and suggested we try it again but count even further this time. Again, he could hear me right through the range I counted. Next, he suggested I remove the phone from that line and replace it with the phone connected to my other line (they were both the same Telstra phones, Exicom model T200). We repeated the test, with the same results. According to Mr Matherson (and it was also apparent to me) this proved that the fault was not in the phone itself, but somewhere in the Telstra network. His next suggestion was that I ring Telstra, which I duly did.

I explained to the Telstra engineer that I could count to 15 or more after hanging up, and that the person at the other end could hear me. I didn’t mention that I had tested two different phones because I understood Telstra had a strong inclination to blame the customer’s equipment first. I was interested to see what he would come up with first.

I performed the same tests with the Telstra engineer, with the same results, and he promised to send a technician to collect the phone the next day. An internal email in March 1994 shows that Telstra’s engineer was aware, before the phone was even tested, that heat in the Cape Bridgewater exchange was causing the fault; the email also adds to the evidence that Telstra was aware of phone faults in the exchange, even while I was preparing my claim for arbitration.

“I am concerned to note that heat may be part of the problem. I had occasion earlier this year to get involved in another ‘ongoing’ case involving an RCM with a heat problem at Murrumbateman (just outside Canberra). I do note that one of the symptoms from the Murrumbateman case was ‘Not Receiving Ring,’ something Alan Smith at Cape Bridgewater has been complaining about for some time.”

When my Telstra account is compared with Telstra’s own data for this period the call hang-ups and incorrect charging were occurring from at least August 1993 right up until the phone was taken away on 27 April 1994. The phone itself was an Exicom, manufactured in April 1993, and later proved to be a player in one of the many sub-plots of this saga. But that story comes later.

Preparational costs

A huge bundle of discovery documents finally arrived from Telstra, in response to my FOI requests. ‘Wonderful,’ I thought, ‘now we’re getting somewhere.’ I was wrong. According to the FOI act, documents should be supplied in some sort of order, numbered, and preferably chronological. These documents had no numbering system and were not in chronological order. Many were unreadable, with so much information blanked out that they were totally worthless. This would have driven even the most hardened lawyer to the wall with frustration. How could I support my claim with material like this?

A law student to assist would have been a God send. The mountain of documents threatened to engulf me entirely, especially knowing that Telstra’s enormous legal team stood by, waiting to pounce on every slightest crack they could manufacture in the claim documents I submitted.

I sought out the TIO and his legal counsel, explaining my lack of confidence and reiterating Robin Davey’s belief that a non-legalistic hearing was the best and fairest way for us to present our cases. The TIO could only console me with ‘Do the best you can,’ while his legal counsel assured me that the process was fair.

I decided I had no choice but to seek professional help. I began by approaching a firm of loss assessors in nearby Mt Gambier who had acted for me after some storm damage at the camp some years earlier. The assessor remembered that he had had a lot of trouble contacting me by phone and after discussing my current position decided that my problems were outside his area of expertise. I continued my search for assistance in the Melbourne metropolitan area, approaching four different companies specialising in communications. Three didn’t even respond in writing and the fourth simply wished me luck in finding someone who would be brave enough to go up against Telstra.

After this, I approached George Close in Queensland. George had technical expertise in the telecommunications area and was already working on Ann Garms’s case. He agreed to take mine on too, observing that this way, we would get more of an insight into how Telstra was operating. Once Telstra became aware that we had secured George’s services, they approached him too, with an offer of work. It would seem they were trying to close off all avenues for us. George, however, at 70 years of age, was having none of that. He replied to Telstra that it would create a conflict of interest and, bless his beautiful heart, he declined their offer.

I also needed someone to help put the whole claim together, and finally located Garry Ellicott, an ex-National Crime Authority detective with a loss assessor company, Freemans, also in Queensland. A final member of my team was Derek Ryan, a forensic accountant.

I felt cautiously optimistic. Government ministers, Austel, even the auditors, all agreed that the COT cases were right and Telstra was wrong. But we still had our backs against the wall. We were all in financial trouble and we were getting no financial assistance from anywhere. I was raising money by selling camp equipment and borrowing from friends.

When we signed on for an FTSP in November 1993, it was not for a legal arbitration. There was no allowance made for us to pay the legal professionals necessary to support our cases, and nor was such allowance made when the plan was switched on us. Had I known that professional fees would ultimately mount to over $200,000, I would never have agreed to the arbitration, even if TIO had held two guns to my head.

Under surveillance

I raised enough cash to bring Garry Ellicott to the camp for a few days in May 1994 to observe what was going on with the phones. During his stay, Garry commented that he believed I was being watched, or rather, listened in on. His background as bodyguard for US President, Jimmy Carter, during his visit to Australia, gave him some experience in this area.

I already had experienced several instances of Telstra accumulating personal information about me — details of who rang me, when they rang and from where, when staff left my business, even my movements. In April 1994, Telstra's Melbourne fault reporting officer seemed to be aware of my movements four months in advance when he wrote an internal memo to another member of staff:

“Mr Alan Smith is absent from his premises from 5/8/94 – 8/8/94. On other occasions when he has been absent there have been documented complaints received (usually months later) involving NRR etc …I intend on this occasion to document his absence and file all data I can collect for the period. That way we should be prepared for anything that follows.”

Telstra has never explained how this Telstra fault officer came by this information, nor how he also knew I had spoken to the former Australian Prime Minister, Mr Malcolm Fraser, on the phone, and when that conversation took place. (AS86).

This person insists I told him about this conversation, but this is not true. I told him no such thing

In an internal Telstra memo around the time of the ‘briefcase saga’, the unidentified writer, a local Telstra technician, offers to supply a list of phone numbers I had rung. I had previously learned that the writer was listening in to my private conversations and, when I challenged him with this information, he informed me he was not the only technician in Portland listening in.

 

Federal Police investigation

In January 1994, COT members informed the Minister of Communications of our suspicions of Telstra bugging, after which things happened very quickly. The Minister ordered an investigation by the Federal Police (AFP), and on 10 February 1994 Austel wrote to the Telstra Manager in charge of the COT arbitrations:

“Yesterday we were called upon by officers of the Australian Federal Police in relation to the taping of the telephone services of COT cases.”

On 25 February, Senator Alston, then Shadow Minister for Communications, asked Austel’s Mr Robin Davey in the Senate Estimates Committee hearing on COT issues:

“Mr Davey, why did not Austel immediately refer COT’s allegations of voice recording to the Federal Police instead of waiting for the Minister to refer the matter to the Attorney General and then on to the Federal Police?”

Be that as it may, when the AFP interviewed Austel, they were provided with documents showing that Telstra had listened in to my phone conversations.

In a letter to Telstra in February 1994, John MacMahon, General Manager, Consumer Affairs, Austel, acknowledges receipt of nine audio tapes from Telstra and notes that these tapes, which are related to the ‘taping of the telephone services of COT Cases,’ had been passed on to the AFP. No warrant was ever issued by the Federal Court for this taping, neither was a warrant issued in either of the Australian states in which the taping took place. Clearly, therefore, this taping was carried out unlawfully. Further, it was carried out during a legal resolution process involving the COT members.

Despite these investigations, no findings of Telstra’s surveillance or monitoring activities have ever been officially presented. At the time of writing, Telstra has still not been held to account, even for those which took place when Telstra was in arbitration with me. If the AFP or the government had pursued these questions, I would not still be searching for answers today.

On several occasions during 1994 I was interviewed by the AFP on this matter, and while they were unable to show me the documents and tapes Austel had given them, it seemed to me they were taking my problems with Telstra and my arbitration seriously. In one interview, I showed them an FOI document which conveys that the writer knew where the caller usually rang from even though, on this occasion, the caller was phoning from a different number, ‘somewhere near Adelaide’. The police were concerned about how a caller was able to be identified if he called from another number.

Constable (name deleted) of the AFP affirmed for me that Telstra had provided them with evidence of this ‘live monitoring’, which had gone on for some period:

“… you were live monitored for a period. So, we’re quite satisfied that, that there are other references to it.”

Senator Alston also put several questions on notice for the Senate Estimates Committee, to be answered by Telstra. These are the questions most pertinent to the COT claimants:

5.    Could you guarantee that no Parliamentarians, who have had dealings with ‘COT’ members, have had their phone conversations bugged or taped by Telstra?

9.    Who authorised this taping of ‘COT’ members phone conversations and how many and which Telstra employees were involved in either the voice recordings, transcribing the recordings or analysing the tapes?

10.  On what basis is Telstra denying copies of tapes to those customers which it has admitted to taping?

11. (A) How many customers has Telstra recorded as having had their phone conversations taped without knowledge or consent since 1990?

       (B) Of these, how many were customers who had compensation claims, including ex-Telstra employees, against Telstra?

In all the FOI documents I have searched, I have never seen these questions answered.

Other FOI documents I presented to the Australian Federal Police show that Telstra officials were making notes on who I rang and were keeping records including the names of other organisations, clients and friends. Even my ex-wife did not escape — her name was listed also. I kept the TIO informed of such developments, but at no point did he ever make any response on the matter.

An extraordinary intervention

At the end of March 1994, I got an extraordinary phone call. Frank Blount, Telstra’s CEO, their top man, rang me, wanting to know what I thought was the underlying cause of my telephone problems. Presumably he had taken this upon himself to find the cause of my complaints. He was understanding, respectful and courteous, and I told him I thought that both Portland and Cape Bridgewater exchanges had been suffering from congestion for years. He gave me his word that he would investigate my theory, and it turned out he was a man of his word.

‘Cape Bridgewater COT Case’, an internal Telstra email dated 6 April 1994, shows the result of his influence:

“Following previous lost call analysis of the Z route between Warrnambool node and Portland AXE–R (PORX) it was decided to increment this route from 30 to 60 CCTS …

Could you please ‘fast track’ this project due to the sensitivity of the current COT case at Cape Bridgewater (off PORX).”

Another, dated 7 April 1994, followed with:

“At 4.55 pm on 6/4/94 I was informed by Network Ops that the route into the Portland exchange would be increased by 30%. The work was to be completed prior to midnight that day. This should alleviate any problems Mr Smith or anyone else in the area has been experiencing with congestion into the area for some time.”

(In fact, an extra 30 circuits into Portland (30 to 60 CCTS) represented a 100% increase in the phone route into Portland exchange, not 30%. But either way, the increase in lines was appreciated.)

Break-ins and losses

From the sublime to the ridiculous. It was also March 1994 when Graham Schorer and another COT member suffered break-ins and lost business-related documents. That made all of us a lot more vigilant. I found no evidence of a break-in, but I did notice two diaries covering the period 1987 to 1989 were missing. I decided to remove my official business diaries from my office, and from then on, I transferred information to them on a weekly basis from my wall calendar and unofficial notebooks.

During his visit, Garry Ellicott and I spent five nights trying to decipher the pile of Telstra discovery documents. It was during his visit I discovered further losses: exercise books in which I kept official booking records; several bank statements and my bank pay-in books for 1992/93. I cannot account for these losses. It is possible they were also missing in March, and I simply didn’t notice their absence. Without these records, I was hard pressed to produce full and correct financial statements for my forensic accountant, Derek Ryan, and was reduced to scavenging information from wall calendars and other unofficial sources. When Garry returned to Queensland, I got him to take the work diaries with him for safe keeping.

The fallout from all this became evident some weeks after my oral arbitration hearing in October 1994, when the arbitrator asked for my annual diaries for assessment. Garry sent them directly to his office. Soon after that, Telstra submitted their defence of my claims. Then, two months later, in February 1995, Telstra advised the arbitrator that they had found discrepancies in my diaries, claiming I had added entries after the date that the calls and incidences recorded had occurred.

I have explained over many years as to how, and why, I’d had to copy fault complaint records into the diaries from exercise books, and affirmed that nonetheless, my chronology of fault events was true and correct. I have since reminded him and the arbitration project manager that during my oral arbitration hearing I had practically begged to be allowed to submit these fault complaints notebooks (as the transcripts of this meeting show). But as the transcripts show Telstra had objected to the submission of these facts and the arbitrator had asserted, without viewing them, that they were irrelevant.

Nevertheless, when it came to his summary in relation to these diaries, the arbitrator stated:

“… I have considered and have no grounds to reject the expert evidence provided by Telecom from (name deleted), Forensic Document Examiner, who examined the claimant’s diaries and because of numerous instances of non-chronological entries, thereby causing doubt on their veracity and reliability.” -- (In the award, at point 5.3)

I contend that if the arbitrator had allowed these notes taken from my exercise books as evidence, and provided them to Telstra’s Forensic Documents Examiner, the examiner would have had a clear understanding of what the exercise books really were and would have realised there was no attempt at deception.

AFP Transcripts

Transcripts from my oral arbitration hearing on 11 October 1994 provide crucial insight into the proceedings, revealing that Telstra argued to the arbitrator that the information I presented concerning my singles club was irrelevant to the arbitration process. This position by Telstra undermined my claim that I had suffered significant financial losses from two different businesses due to persistent telephone issues: specifically, the bookings for the school camp and the more profitable singles club.

The transcripts, which I am prepared to provide to the Australian Federal Police (AFP) upon request, indicate that Dr. Hughes, the arbitrator, was pressured into siding with Telstra’s insistence that the evidence related to my singles club not be accepted for consideration. This raises a critical question: why did Dr. Hughes allow Telstra to dictate the relevance of my singles club evidence as a business loss? Particularly considering that he had earlier acknowledged the advice from Superintendent Detective Penrose, which had indicated that the material from my singles club could be submitted under conditions of confidentiality during the oral hearing. Dr. Hughes’s apparent reversal on this matter calls into question his impartiality and commitment to justice.

In the arbitration interrogatories, specifically in Telstra’s request for better particulars dated September 20, 1994, I formally communicated to both Telstra and the arbitrator that my circumstances were currently under investigation by the Federal Police. I stated clearly:

"In the interest of ensuring fair justice, I believe I should refrain from commenting further beyond what I have already conveyed: it is indeed true that Detective Superintendent Penrose informed me of certain matters. If the Australian Federal Police are willing to disclose the full details of their investigations, along with the discussions I had with them, then Telecom will similarly be able to secure that information."

During the extensive oral hearing that lasted nearly five hours on October 11, 1994, the discussion turned to the serious allegations I had raised regarding the unauthorized interception of my telephone calls. Two representatives from Telstra were present, one of whom served as the Principal Telstra Arbitration Defence Liaison Officer. During the proceedings, he referenced my earlier assertions about unlawful activities related to my phone communications, specifically mentioning Detective Superintendent Penrose's involvement.

Feeling the need to clarify my position, I interjected to explain, “I believe Telecom is playing on words—the term 'illegally tapped' is vague—it’s almost akin to asking me to define something I’m not equipped to articulate.” At this moment, Dr. Hughes, who was overseeing the session, interrupted to stress the importance of clarity in the discussion. He stated,

"I apologize for the interruption, but we need to focus on your statements. Your answer to Question 24 indicates that Detective Superintendent Penrose conveyed critical information to you."

I affirmed my interaction with Detective Penrose, responding, “Yes, that is correct.” Following my confirmation, Dr. Hughes inquired further, “Is there any documentation that can support your statement, or any additional insights you can share regarding your conversations with Detective Penrose?” I reiterated, “I have spoken with Detective Penrose on two separate occasions, and he has clearly indicated that my phones had indeed been monitored.” 

This exchange underscored the gravity of my allegations and sought to clarify the factual basis for my claims regarding surveillance, emphasizing the need for transparency and accountability in the proceedings.

I emphasize my response to Question 24 regarding Telstra's interrogatories and the oral arbitration hearing because it raises a significant ethical dilemma: how could it be considered ethical or moral for Dr. Hughes to expect me to disclose private and sensitive information about the female members of my Singles Club during this public forum? This expectation was particularly troubling given that the AFP had advised me against revealing such details while they were still investigating how Telstra had managed to record the names and phone numbers of various female members of my Singles Club. This situation particularly affected the Cape Bridgewater Holiday Camp, where activities like bushwalking, canoeing, and horseback riding were negatively impacted by the ongoing telephone problems.

It is noteworthy that none of my singles clubs lost revenue documentation which the AFP asked me to provide Dr Hughes under confidentiality was considered as a loss because it had not been viewed by Telstra’s arbitration defence.

Here the AFP was saying I could not provide this information to Telstra because it was under investigation and here Telstra was saying it is irrelevant even though that information 37 pages was directly connected to the ongoing and well-documented telephone faults.

Strikingly, these issues were never referenced by Dr. Hughes in his arbitration findings or by Ferrier Hodgson Corporate Advisory, the financial unit involved in the arbitration, in their final assessment of the Cape Bridgewater Holiday Camp.

The AFP had already informed me to alert both the arbitrator and Warwick Smith that they had reviewed my desktop diaries, which contained detailed records of fault complaints from single patrons, along with their schools addresses and phone numbers.

his information had to be meticulously concealed, as the AFP endeavoured to thwart Telstra's access to critical records regarding the nefarious single over-forty’s parties under investigation. The AFP uncovered that Telstra was secretly cataloguing the names of the female single patrons, an explosive detail that posed a grave threat if exposed to the public eye.

From 1991 to 1994, I maintained a comprehensive collection of meticulously documented, timestamped records from two separate groups who were persistently logging complaints about dubious activities that plagued the singles club I established. The arbitrator, deeply aware of the urgency surrounding my organized diary entries and filed note information, understood the vital importance of safeguarding sensitive materials tied to ongoing investigations. Every detail was chronicled with precision to substantiate my claims of monumental financial losses and the ethical violations perpetrated by Telstra throughout the hearings.

I refer only to the local Telstra technician, known as P.S., whose name I withhold not out of benevolence but as a testament to the dark ordeal I and the other COT Cases have endured for years—living in the shadow of a coercive system that was supposed to resolve our ongoing telephone and faxing problems. This document was provided by me to the arbitrator, Dr. Hughes, Warwick Smith the administrator of the arbitrations and to Melanie Cochrane of the AFP. It appears from the wording in this document PS, was complicit in a disturbing breach of trust, providing my private phone and fax numbers to an enigmatic figure named Micky. Despite this clear and troubling connection, the arbitrator foolishly upheld the integrity of the very Telstra employee entangled in this web of deceit.

The unsettling reality, as brought to light by the disturbing exhibits on my website, absentjustice.com, highlights relentless violations of my personal and business telephone communications—a systematic and insidious invasion orchestrated by the morally bankrupt Telstra employee, P.S. This wasn’t a random occurrence; instead, it persisted for months, curiously coinciding with the hours this morally compromised technician was stationed at the Portland telephone exchange.

One must ponder the veracity of Telstra’s assurances when it becomes alarmingly evident that each time P.S. vacated his post, the alarm system meant to protect my private conversations was inexplicably disabled. What kind of ruthless individual engineers a surveillance system that operates solely under the watch of such a morally defunct character? The implications are grotesque, suggesting not only staggering negligence but a sinister collaboration, a conspiracy that chills the bones and reveals the depths of human depravity.

In my desperate quest for the incriminating data amassed by P.S. through this depraved monitoring scheme, I invoked the Freedom of Information Act during my arbitration proceedings, only to be met with sheer hostility and brazen evasion. Essential information was systematically concealed throughout my arbitration from 1994 to 1995, and the stonewalling continues as we approach 2025—a grotesque denial of my rights and an unfathomably ugly obstruction of justice, trapping me in a labyrinth of deception and betrayal.

In a particularly harrowing confrontation, I sought out P.S. at his home, driven by an insatiable need for the truth behind his treacherous conduct. When I pressed him about "Micky," that shadowy figure to whom he had supposedly divulged my confidential business information, he responded with chilling silence, finally offering a weak admission—that he was not the sole Telstra employee embroiled in this malignant scheme, which permeated the Portland area.

Living in a small town like Portland has been an absolute nightmare, haunted by the presence of three ex-Telstra employees who not only lied under oath about my business but did so with a chilling sense of impunity. Their perjury shattered my livelihood and left me grappling with the fallout in a community where everyone knows everyone. Walking down the street or shopping in local stores, I constantly felt their eyes upon me, a constant reminder of the betrayal and deceit that permeated my life.

The trauma of their lies is a weight I carry every single day. It’s one thing to have your business falter, but it’s another to endure the realization that the very people who were supposed to uphold the truth chose to play a role in my destruction. I became a living target, an embodiment of their deceit, walking through a town filled with whispers and glances that sent icy dread through my veins.

Even years later, their presence lingers like a shadow over my life. Each encounter is a painful reminder of the trust I once had and the vicious lies that brought me to my knees. The emotional toll is immeasurable. I grapple with feelings of isolation and despair, knowing that I am surrounded by a community that has been tainted by these false testimonies. 

As if that wasn’t enough, the fear and anxiety seep into every aspect of my life—how can I feel safe in my own hometown when the very foundation of my existence has been undermined by those with a blatant disregard for truth? The trauma from their deceit and the devastating impact it had on my business continued to haunt me while living there, layering my everyday experiences with an unbearable burden. It was often a struggle just to move through a town that feels so small yet so suffocating, where every face could be a reminder of the horror I’ve and my partner have endured.

I was shocked and horrified to discover that both P.S. and his employer, Telstra, have not only admitted in writing to a serious violation of my privacy but have also done so in documents that were provided to me by the Australian Federal Police (AFP) and subsequently presented to the arbitrator. These documents reveal that my private telephone conversations and arbitration-related faxes were intercepted over several years. Tragically, both the arbitrator and the AFP chose to ignore this egregious infringement on my personal rights, effectively turning a blind eye to the situation.

Adding to my sense of powerlessness, the Director of Public Prosecutions cautioned the government that pursuing legal action against such a massive and influential corporation like Telstra would be financially burdensome and likely futile. This warning feels manipulative, leaving me feeling trapped in a system that seems designed to protect powerful entities at the expense of individuals like me.

The knowledge that my most private conversations were broadcast through the Portland telephone exchange which exhibit AS 647 shows transcends mere violation; it is a profound betrayal of trust. The AFP holds documents that substantiate this invasion of my privacy—evidence of a sinister reality that has haunted me. Coupled with the false witness statements made about various issues, statements that both Telstra and the individuals who made them are aware are fabrications, this experience weighs on me heavily. It feels akin to an insurmountable mountain I am compelled to climb every day.

After suffering a second heart attack and spending a month in the hospital, I found myself forced to leave the town of Portland by the sea, a decision driven by the emotional toll this situation has taken on my life. Both my partner and Cathy have had to endure the ramifications of this harrowing ordeal for the past three decades, and it has profoundly impacted our collective well-being.

I urge you to watch the Ann Garms YouTube video featured on my website. It presents compelling evidence that Telstra is not the company they claim to be—a corporation that advocates for the people. I believe viewing her video will leave a lasting impact and provide further insight into the truth behind their façade.

I suppose that some readers might be wary of accepting all I write here as truth, as I am aware that some of it seems so outlandish. The reader has only to view the various links on absentjustice.com various to understand just how far Telstra (the defendants) the TIO (the administrator of the process) and the arbitrator went, in their so far successful attempt in concealing the truth surrounding my claims of ongoing telephone and faxing problems which were still affecting the viability of my business on 11 May 1995, at the time the arbitrator brought down his finding without attempting to address those on going faults.

Yet during his time as Minister for Communications in the early 1990s, Senator Kim Beazley was concerned at how Telstra’s Protective Services Unit spied on its own technicians and other employees, documenting their movements while they were on sick leave, so I do not think it unreasonable that we COT members believed we also were being spied on.

For one instance, in July 1992 I had asked Telstra for a written guarantee that my phone service was up to network standard. I wrote this request to Telstra without ever mentioning the name of the bus company who had asked for the guarantee, but in 1994, among documents sent in response to one of my FOI requests, I found a copy of the letter I had written, on which the name ‘O’Meara’ had been scrawled. Had Telstra been listening to my phone conversations? If so, this was spying, way back in 1992, long before the arbitration process began. These issues of an individual’s right to privacy and a corporation’s manipulation of the system go to the core of Australian democracy.

Trying to produce a claim in some readable form when the story was so complex, multi-layered, and complicated by long-delayed access to necessary information, was extremely difficult. My phone and fax lines became lifelines to Garry Ellicott my claim advisors and Geroge Close my technical adviser who both lived in Queensland.

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

Regarding these recorded announcements, the Austel report observed:

“Monitoring equipment at the exchange will not identify this condition as the call will either not be received at the terminating exchange or it will be seen as a call existing from the exchange. Complementary equipment at the customer’s premises will not record a call being received in either of the above circumstances”

Off course, what Garry, George and I didn’t know back then was that this 1800 fault was affecting Telstra customers nation-wide, but Telstra was still able to convince the arbitrator and the Ombudsman to completely ignore it during the arbitration process. It is now clear that Telstra understood any investigation into this fault would have meant that the arbitrator would have had to make a written finding regarding the problem in his award, which would, of course, have had disastrous consequences for Telstra.

Even though the technical consultants warned the arbitrator that, by 30 April 1995, they still needed more time so they could address these issues properly before they were prepared to declare their report to be complete, the arbitrator ignored their pleas.

My page two of the technical consultant’s report shows no mention of my billing claim document in my version. However, page three in the arbitrator’s version notes:

“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 Technician Report on Cape Bridgewater is complete.” 

How can two identical technical reports with the same 23 technical assessments, both dated 30 April 1995 and apparently both prepared by the same consultants, have one version noting that the “… case remains open, and we shall attempt to resolve it in the next few weeks”, while the other has no mention of it still being open and needing weeks to complete? Something went horrible wrong that day. 

Worse was to come though, because both the Ombudsman and AUSTEL later allowed Telstra to address the part of my claim that I lodged on 25 May 1994 ‘In-Camera’, on 16 October 1995, five months after my arbitration had been declared complete.  In other words, AUSTEL, the Government Communications Regulator, the Telecommunications Industry Ombudsman and Telstra (the defendants) were controlling what was going to be addressed as part of the arbitrations and what would not even be assessed at all.

I was therefore never provided with the legal rights that, according to the arbitration agreement and the Commercial Arbitration Act, would have entitled me to respond to Telstra’s defence of this part of my claim.      

I had been fighting for more than six years and still I was caught in a game of ‘catch up tennis’. As each new fault appeared I had to lodge an FOI request for Telstra data, and each request would take at least 30 days to bring results. No sooner had I faxed information to the arbitrator detailing the previous month’s faults than more occurred and I had to wait, again, for another 30 days to get copies of Telstra’s records. If anyone heard my tales of frustration, they apparently didn’t care.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Chapter 6 Arbitration

It’s time I introduced Cathy (my partner). We met in 1993 when she brought a group of underprivileged children to the camp from Ballarat. She was a very warm and competent coordinator in the field of family support. We stayed in touch after that, and she assisted me from Ballarat in various camp operations over the next year or so. Then in May 1994 she agreed to come and work at the camp while I concentrated on my arbitration. By the end of the year, we were partners.

Her assistance was timely, for while preparing for my arbitration came fresh nightmares. I discovered things I thought I’d faxed to my advisers or to the arbitrator had not got through. I was regularly contacting Austel two nominated representatives with evidence of pages of my faxes which came out at the receiver’s end as blank pages, often with a small symbol at the top of each page, on the left or the right.

And, of course, Telstra charged me for these blanks (as it also continued to charge me for unconnected 1800 calls), each of these pages appearing on my Telstra account in terms of minutes to transmit. I asked Telstra time and again, in writing and through various legal processes, why these pages should arrive at the other end as blanks, but I never received an answer.

I expressed my concerns to the arbitrator regarding the possibility that he was not receiving all the faxes I had diligently sent him. A specific incident occurred on 23 May 1994, when Telstra argued that the delivery failure was due to the arbitrator’s fax line being busy at the time my fax attempted to connect. It left me pondering—what exactly happened to my fax?

Why didn't the system recognize a busy signal and attempt to redial? Furthermore, I was perplexed as to why I was billed for these calls when they didn't go through. My phone account for that day revealed seven instances of unsuccessful connections to the arbitrator's office. This raises an unsettling question: where did those seven crucial faxed claim documents ultimately end up? It’s painfully clear who stood to gain from their mysterious disappearance, yet the arbitrator seemed disinterested in conducting any investigation into the matter.

The situation became even more ironic when I informed Graham Schorer of this issue, alongside the troubling reality that my initial financial consultants located in St Kilda, Melbourne, were receiving nothing but blank faxes from me during a critical period when they were attempting to assess my ongoing financial losses. Their own struggles with telephone and fax disruptions highlighted the absurdity of the situation. The significance of these lost documents weighed heavily on the arbitration process, prompting Graham, who served as our spokesperson for COT, to reach out to Dr. Goron Hughes. He passionately explained the detrimental impact that these missing faxes were having on our arbitration—a process initially designed to investigate the unrelenting telephone faults that had plagued my situation.

 

I must take the reader forward fourteen years to the following letter dated 30 July 2009. According to this letter dated 30 July 2009, from Graham Schorer (COT spokesperson) and ex-client of the arbitrator Dr Hughe wrote to Paul Crowley, CEO Institute of Arbitrators Mediators Australia (IAMA), attaching a statutory declaration and a copy of a previous letter dated 4 August 1998 from Mr Schorer to me, detailing a phone conversation Mr Schorer had with the arbitrator (during the arbitrations in 1994) regarding lost Telstra COT related faxes. During that conversation, the arbitrator explained, in some detail, that:

"Hunt & Hunt (The company's) Australian Head Office was located in Sydney, and (the company) is a member of an international association of law firms. Due to overseas time zone differences, at close of business,  Melbourne's incoming facsimiles are night switched to automatically divert to Hunt & Hunt Sydney office where someone is always on duty. There are occasions on the opening of the Melbourne office, the person responsible for cancelling the night switching of incoming faxes from the Melbourne office to the Sydney Office, has failed to cancel the automatic diversion of incoming facsimiles”.

Dr Hughes’s failure to disclose the faxing issues to the Australian Federal Police during my arbitration is deeply concerning. The AFP was investigating the interception of my faxes to the arbitrator's office. Yet, this crucial matter was a significant aspect of my claim that Dr. Hughes chose not to address in his award or mention in any of his findings. The loss of essential arbitration documents throughout the COT Cases is a serious indictment of the process.

Even more troubling is that Dr Hughes was aware of the faxing problems between the Sydney and Melbourne offices before his appointment as an arbitrator for seven arbitrations, all of which were coordinated within a twelve-month period. During this time, COT claimants—two in Brisbane and five in Melbourne—frequently voiced their frustrations about the arbitrator's office failing to respond to their faxes. This raises alarming questions regarding potential criminal negligence, and the integrity of the arbitration process itself.

Because of the need to be in constant contact with Garry Ellicott and George Close, my claim advisors in Queensland, my Telstra account for this period reached more than $16,000 by May 1995. My home account was another $2000. Telstra, meanwhile, had set up a special office just to deal with the COT arbitrations, and in 1996 admitted that the COT arbitrations had, up to then, cost Telstra more than $18 million. All this to fight a small group of small-business people who were looking only for Australian justice!

Meanwhile, we were asking the Commonwealth Ombudsman to investigate why Telstra would not supply our discovery documents. The longer we were kept waiting, the longer our advisors and researchers were kept waiting and the more it cost us to participate in this so-called ‘fast tracked’ procedure. Whether Telstra deliberately delayed supply of discovery documents to give themselves more time to prepare their defence or to give their legal unit more time with the discovery documents before our advisors saw them, it seemed to me the whole arbitration was being orchestrated by Telstra as an exercise in thwarting any investigation into their dubious conduct. Certainly, an exercise in power imbalance, with the arbitrator weighing in on their side in a myriad of ways.

In June 1994, I was obliged to ask the arbitrator for extra time to prepare my claim and was allowed one extra week. By contrast, the records show that Telstra was allowed an extra 72 days. A Telstra representative was in the arbitrator’s office when Graham Schorer and I arrived with my interim claim documents on 15 June 1994, and my documents were taken away by Telstra’s defence counsel. I could not understand how the arbitrator could allow Telstra access to my interim claim documents when he knew I was still waiting for vital discovery documents to complete my submission. Moreover, the arbitration rules were clear that Telstra was allowed only one month to prepare their defence of my claim, but they did not present that defence until 12 December 1994, six months later.

Service Verification Testing, September 1994

Meanwhile, on 29 September 1994, Telstra’s Chief Engineer brought Service Verification Testing (SVT) equipment to the Camp. Telstra was obliged to prove that there were no longer any phone problems. Right from the start, this engineer experienced major problems in getting the equipment to work on any of our three separate lines. Nevertheless, he went ahead with his testing.

No calls were able to reach the camp, so Telstra technicians at the exchange were generating calls for testing purposes. Whatever the results, they had to be totally meaningless, because the fact was, true incoming calls were not received. On 2 October and again on 10 October I complained to Telstra about these deficiencies in the verification testing, and sent copies to the arbitrator, the TIO, and Austel. There was no response whatsoever to our statutory declarations.

Six weeks later, however, Austel responded, writing to Telstra expressing concerns about the SVT testing process as it was conducted on 29 September. The testing did not meet Austel’s mandatory specifications for testing.

Telstra’s own CCAS data for this day confirms that not one of the tests on my three lines met Austel’s requirements. Nevertheless, Telstra went ahead and presented the test results in their arbitration defence, concluding that my services were now at network standard, along with a sworn statement by this engineer that the tests had met all Austel’s requirement when the Service Verification Test (SVT) did not meet those requirements at all.

I do not know what to call this act of blatant, intentional misrepresentation. Certainly not ethical, and I’m sure it was not legal. Why did I not do anything about this? Because I did not learn about it until 2002, seven years later and neatly outside the statute of limitations.

If the arbitrator had been made aware of the deficiencies Austel had raised regarding the SVT testing, and known that the testing could not have produced a the mandatory success rate, he would have been duty-bound to find in my award, that Telstra was operating outside their licence agreement by not supplying me a level playing field in which to operate my business on the same terms as my competitors.

Austel, for its part, seemed quick to forget its letter of 16 November. In its quarterly report on the COT Cases to the Minister for Communications and the Arts in February 1995, it withheld its true findings and stated baldly that:

“All six of the telephone services subjected to the Services Verification Tests have met or exceeded the requirements established.”

What happened to Austel to make it change its tune?

My oral hearing was arranged for 11 October 1994. This hearing followed the submission of the interim claim documents and was for the purpose of determining for the arbitrator what other information each party might need to supply to assist the process — the documents I needed to access from Telstra, and vice versa. I had also asked that the issue of Telstra’s failure to supply FOI documents in a proper and timely fashion be raised at the hearing.

The rules of arbitration allowed me legal representation if Telstra had legal representation, but where would I find the money to pay a lawyer who wouldn’t buckle under the power of a corporation as huge as Telstra? At least 43 of Australia’s largest legal firms were, at that time, on the payroll of Telstra in one way or another, making them unavailable to any COT member.

In August, five months into the arbitration process, the TIO, in his role as administrator to the arbitration, informed me that the arbitrator himself was a senior partner in a legal firm which was also working for Telstra at the same time. I protested that this surely represented a conflict of interest, but the TIO assured me this was normal practice; he wanted merely that I confirm, in writing, that I had been informed of this situation. Five months too late. What could I do? I saw no choice but to continue with the arbitration and participate in the oral hearing.

I had been advised by the arbitrator that Telstra would not have a lawyer present at the oral hearing, which was a relief, and I went to the hearing believing this would be a meeting of equals. How foolishly wrong I was. On Telstra’s side of the table sat two of Telstra’s top executives, both men with legal training. I felt like David up against Goliath. How could I not have known it would be like this?

During the hearing I produced four fault logbooks containing amongst other things the contact information of over-40s singles clients who had not been able to reach my business by phone. I asked to have these books accepted into the procedure. I had not submitted them earlier, I explained, because the information had been given in confidence. I trusted that, submitting them directly into the care of the arbitrator, the information would be secure. The books showed conclusively that not only had I lost business calls as a direct result of a faulty phone service, but I had also missed out on the opportunity to set up a singles club which would have been another business to augment my income and keep the camp going.

Telstra insisted that the information was not relevant and should therefore not be accepted. The arbitrator concurred and I was not allowed to submit the logbooks. It was at this point that I finally admitted to myself that the arbitrator was not acting impartially, nor had he been from the beginning.

The FOI issue wasn’t even touched on in the oral hearing. The arbitrator was supposed to facilitate the timely provision of requested documents to me, and many times I had asked for his assistance in this, but none of my requests were fulfilled; I suspect he didn’t even pass them on. He did, however direct me to provide some 40 extra documents and pages of attachments and further particulars which Telstra had requested through the same discovery process. I complied on every single occasion, at my own expense, but, in return, I received none of the relevant documents I had requested. Something was very wrong with this whole process.

I had been fighting for justice for more than six years. Fighting a losing and costly battle, simply because I wanted to set up business in a rural hamlet that Telstra’s senior board saw no benefit in upgrading. The oral hearing made me realise that I was truly on my own in this: the arbitrator couldn’t be relied on to be independent. I warned the other COT members of what they too might face. We had been conned. The TIO’s office had assured us — and the Senate — that this would be a non-legalistic process. They were taking me to the cleaners.

Over the next two months before Telstra lodged their defence of my claim, I continued to search through all the material I had, looking for something, anything, to help improve my position, hoping to find the elusive discovery documents I needed.

By that time, I still had not received the requested telephone exchange logbook for Portland/Cape Bridgewater, which Austel would have needed to review to support the 212 points outlined in their official findings

Since I was denied the documents that I was promised would be provided if I entered arbitration, I had no choice but to submit only my interim claim documents. This included a list of 183 separate faults that occurred between late 1989 and early 1994.

Interim Claim

Most of the entries on this list included the names and addresses of the people who had registered complaints with me. I also submitted copies of another 42 examples of faults which had been logged by Telstra’s own fault centres in one 8-month period alone, from January to August in 1993. On top of these I included for assessment more than 70 letters I had received from people over the years, describing their difficulties in reaching me by phone. Some of these letters were written by Telstra’s own employees who had felt compelled to tell the truth about what they knew of my phone problems.

Yet despite this mass of material, the arbitrator's ‘independent’ technical resource unit, said in their report that ‘... a comprehensive log of Mr Smith’s complaints does not appear to exist.’ The current 2015, Senator Barry O'Sullivan (Queensland National Party) can vouch that the material was submitted by his partner at the time, Garry Ellicott. What happened to it?

The list of letters of support written to me did not appear on the list of documents received by the resource unit. Presumably they had not been seen by the arbitrator either. This was a bitter blow. What happened to them? The Hon Barry O'Sullivan attests that in 1995, his company Freeman's billed me for the sum of $51,000.00 for having prepared and sent this material (which the resource unit never received).

The Federal Police came to Cape Bridgewater to interview me in February 1994 regarding the fact that Telstra was intercepting COT case phone conversations. The evidence we COT members had assembled had convinced Austel and the Minister of Communications that Telstra had a case to answer. Under the Telecommunications Act 1991, Telstra was obliged to provide Austel, the regulator, with any data pertaining to the interception of telephone conversations with the four COT cases. Telstra had supplied nine audio tapes, which Austel then passed to the AFP.

The Federal Police wanted all documentary evidence I could supply of Telstra having intercepted my fax or telephone conversations, and I made copies of several FOI documents for them to take away. This was to have serious consequences for me.

At the end of June 1994, Telstra’s main 'thug' I have named as 'the Jackel ' rang me about my complaints regarding the slow delivery of FOI documents I needed for preparing my arbitration claim. I had complained to the Commonwealth Ombudsman, who was now leaning on Telstra. But ''the Jackel'' astounded me when he told me the slowness of delivery was due to Telstra needing to ‘vet’ the requested documents for any ‘sensitive material’ — because I had passed material on to the Federal Police. This was preposterous on at least two counts. First, the slow delivery had been going on since my first request for FOI documents. Second, it was my civic, if not legal, duty to cooperate with any police investigation. It was certainly not a subject that a telecommunication corporation should have any jurisdiction over.

But that wasn’t all. The 'Jackel' then said that I would not be provided with any further documents if I continued to pass them on to the AFP. This I understood as a clear threat to withhold critical FOI documents necessary to support my arbitration claim. I assured him I would not. A few days later I wrote to affirm this with the 'the Jackel':

“I gave my word on Friday night that I would not go running off to the Federal Police etc., I shall honour this statement and wait for your response to the following questions I ask of Telecom below.”

And indeed, I had no intention of providing the AFP with any more FOI documents. When the AFP visited me again in September 1994, I showed them a copy of my letter to the 'dog', which they found very interesting as their transcript of the interview shows:

: The thing that I’m intrigued by is the statement here that you’ve given 'the dog' your word that you would not go running off to the Federal Police etcetera.”

But I did, in July, write to inform the arbitrator that Telstra had threatened to withhold further FOI documents because I had supplied them to the Australian Federal Police to help with their investigations into Telstra’s interception of my telephone conversations. The arbitrator did not respond to my letter; nor did he comment when the issue was raised in parliament.

However, I need to take the reader back some six months or more to describe the following.

On the morning of May 14, 1994, I arrived promptly at Telstra’s Exhibition Street Freedom of Information (FOI) viewing room at 9:00 am, as previously scheduled. My purpose was to carefully examine the FOI documents that Telstra had sent me, although they had done so without providing a comprehensive schedule. Upon my arrival, I was greeted by Telstra FOI staff, who informed me that I would have exclusive access to the room until 6:00 pm—a generous timeframe considering the volume of material I intended to review.

I had specifically organised this meeting to follow up on additional documents I had requested back in December 1993, as well as in February and March 1994, which had yet to be fulfilled. As I began my examination, I encountered disturbing inconsistencies. The principal FOI officer at Telstra seemed to supply fabricated explanations for the extensive censorship applied to various documents I had recently received. Although some documents from my December 1993 and February 1994 requests were included, they were heavily redacted, obscuring crucial information. Among these documents were approximately 56 fax cover sheets, accompanied by the attached materials intended to provide clarity.

One particularly concerning document referenced the MELU Exchange, a critical issue that had caused my business significant difficulties between August 1991 and March 1992. Recognising the potential importance of this information, I requested that the FOI officer provide the unredacted version of the document. He departed the room to retrieve it, while I continued to scrutinise the materials at hand.

As I sifted through the documents, I brought along several previously supplied materials in hopes of correlating them with the schedules that had not been provided in December 1993 and during the subsequent FOI releases in February and March 1994. It quickly became evident that several of the fax header sheets, which I had only partially received in the past, were now not just incomplete but were also mismatched with entirely unrelated documents.

Notably, some of the 56 fax cover sheets contained completely different content than I had previously recorded. For instance, I noticed that a document discussing a fault from 1991 was attached to a fault record dated in 1993, which stated that no fault had been found. This was alarming, especially as another page in a separate report confirmed that a fault had indeed been identified. The discrepancies caused a wave of concern, prompting me to contact Detective Superintendent Jeff Penrose of the Australian Police to relay the troubling situation.

Following his advice, I prepared a Statutory Declaration, which I promptly submitted to the Telecommunications Industry Ombudsman, the arbitrator the Australian Federal Police (AFP).

On May 16, 1994, I received a TIO file note, which I had not seen until late December 2001 under the TIO's Privacy Act policy. This note confirmed my visit to the TIO’s office, located just two blocks from Telstra House, and my request for a witness to join me in revisiting the Telstra viewing room to witness the altered documents firsthand. Exhibit GS-CAV 189-A, marked "Warwick" and labelled "URGENT," verifies that I left behind a selection of the censored and redacted FOI documents with the deputy TIO. Notably, the last paragraph of this exhibit acknowledges the proof I provided, confirming that Telstra had indeed altered vital information on the supplied documents, stating, "He left an example of this with us (also attached)."

Despite the TIO's role as an administrator in my arbitration process, they frustratingly refused to send anyone to assist with investigating these discrepancies. As previously mentioned, on January 11 and July 11, 1994, Telstra's representative, Steve, communicated with Warwick Smith regarding the TIO-appointed Resource Unit and AUSTEL's troubling practice of censoring Telstra documents before allowing COT claimants to use them to substantiate their claims. Perhaps this explains the reluctance of any staff from the TIO’s office to engage in investigating this pressing issue.

On 29 November 1994 Senator Ron Boswell asked Telstra’s Legal Directorate:

“Why did Telecom advise the Commonwealth Ombudsman that Telecom withheld FOI documents from Alan Smith because Alan Smith provided Telecom FOI documents to the Australian Federal Police during their investigations?

“Why would Telecom withhold vital documents from the AFP? Also, why would Telecom penalise COT members for providing documents to the AFP which substantiate that Telecom had conducted unauthorised interceptions of COT members’ communications and subsequently dealt in the intercepted information by providing that information to Telecom’s external legal advisers and others?”

That Telstra’s Legal Directorate had no answer for these two questions was understandable. That the arbitrator could not even ask the questions why I should be penalised for carrying out my civic duty in an official police investigation, was not. My arbitrator’s silence told me, months before he handed down his award, that the result would not favour my complaints of ongoing telephone and faxing problems.

But it is not just the arbitrator who let me, and the course of justice, down. No one in the TIO office, Austel, or the government was prepared to investigate either.

 On 11 November, John Wynack, Commonwealth Ombudsman Office wrote to Telstra’s CEO noting:

“At the request of (name deleted), I am notifying you of the details of the complaints made to the Ombudsman by Alan Smith.

• Telecom claimed that documents given to Telecom by Mr Smith in 1992 had been destroyed or lost.
• Telecom has lost or destroyed a number of files relating to his contacts with Telecom prior to 1991.
• Telecom unreasonably delaying providing access to many documents.
• Telecom unreasonably refused to provide the Portland/Cape Bridgewater Logbook associated with the RCM at Cape Bridgewater’ for the period 2 June 1993 to 6 March 1994

On August 8, 2006, a former Principal Protective Officer from Telstra took a courageous stand as a whistleblower after uncovering a troubling pattern of unethical behaviour within the organization during the COT (Commercial Off-The-Record) arbitrations.

This officer meticulously prepared a detailed statutory declaration, shedding light on Telstra’s misconduct, particularly in the context of a comprehensive investigation in 1998 to 2001 by the Major Fraud Group of Victoria Police. This investigation focused on allegations of fraud that emerged during the arbitrations involving notable figures, including Ann Garms, Graham Schorer, Ralph Bova, and Ross Plowman.

Recognizing the whistleblower's expertise and firsthand experience with Telstra’s operations, the Major Fraud Group enlisted him to contribute his knowledge to their ongoing investigation. In parallel, I was also seconded by the Major Fraud Squad due to my role in uncovering evidence of fraud that had been used in my arbitration by Telstra. The barrister representing the four COT cases was aware of my extensive work, which included preparing three reports on this fraud. Unfortunately, all three reports never made it into the arbitration process, vanishing like many other COT case documents had before the arbitrator could make a finding on this vital evidence. 

These reports presented compelling evidence of Telstra’s fraudulent activities in my case. Specifically, I demonstrated that the Cape Bridgewater tests, which were allegedly conducted by Bell Canada International Inc., had never taken place. Additionally, I exposed the myth surrounding the TF200 Exicom TF200 “sticky beer” problem as a complete fabrication. Moreover, I revealed that the so-called Service Verification Testing process at the Cape Bridgewater Holiday Camp was not only unreliable but had been abandoned due to the grave incompatibility of the testing equipment with the telephone exchange at Cape Bridgewater. 

These three reports were subsequently submitted to the government by The Hon. David Hawker MP, Speaker in the House of Representatives, in February 2006, as part of my 2006 Government Arbitration Review. I am still awaiting findings on those three reports.

These meticulously documented reports triggered the former Telstra officer's memory, prompting him to revisit his 1994 inquiry into potential issues related to phone interception. During this investigation, he recalled a significant event: the mysterious disappearance of a logbook that had been crucial to our investigations. It was widely believed that this logbook vanished due to its connections with the controversial COT case at Cape Bridgewater. This incident, which took place eleven years prior to this pivotal moment, remained vividly etched in his memory, adding layers of complexity to his testimony.

The following three points in his witness statements are briefly noted below.

(20)”…I had cause to travel to Portland in western Victoria in relation to a complaint involving suspected illegal interference to telephone lines at the Portland telephone exchange.

(21) As part of my investigation, I first attended at the exchange to speak to staff and check the exchange logbook which was a record of all visitors to the exchange, and a record of work conducted by the technical officers.

(22) When I attended at the exchange, I found that the logbook was missing and could not be located. I was informed at the time by the local staff that a customer from the Cape Bridgewater area south of Portland was also complaining about his phone service and that the logbook could have been removed as part of that investigation”.

AUSTEL had also visited the Portland Telephone exchange in early 1994, and at the same time visited my Cape Bridgewater Holiday Camp, and after being told Telstra would not investigate my ongoing 008/1800 billing problems unless they were first registered in writing with Telstra’s lawyers Freehill Hollingdale & Page, then Telstra would not respond to my complaints.

Could this visit to the Portland telephone exchange and my premises perhaps, be linked to my first disclosure to AUSTEL, in June 1993, when I explained that at least two other businesses in Portland were having considerable 008/1800 problems? In addition, I told AUSTEL that it was impossible for so many ‘short durations-calls’ to have come into my business, even though that was what my telephone account showed. Telstra’s local technician had lied about the ELMI monitoring machine NOT being connected to my service, when it had been. What was in the logbook that a government regulator, Telstra’s own protective service officer and the commonwealth ombudsman’s office have been unable to gain access to it? Like much of the Cape Bridgewater fault data that AUSTEL failed to obtain from Telstra during their investigations into my complaints (see Main Evidence File No 15), I was also unable to get my hands on the Cape Bridgewater/Portland exchange logbook – not even with the help of the Commonwealth Ombudsman.

Could this be the reason why the logbook vanished? Perhaps Telstra feared a class action lawsuit in the future. All I wanted was to prove my case and get on with running my business.

In my own letter to Dr Hughes, of the same date, regarding the concealment of this logbook (which I continued to seek through the arbitration process) I noted:

“I believe the following fax from the Commonwealth Ombudsman’s Office, is relevant to my claim, and not contrary to the instructions outlined in your letter dated 10th November 1994.

“In defence of these letters and faxes I would like to state that I believed at the time of writing that I was showing both the reluctance of Telecom to assist me with the Arbitration Procedure and their efforts to inconvenience me in this Procedure. However, I understand the legal reasons you have put forward as to the inappropriateness of forwarding literature back and forth where it may be seen by parties as compromising the confidential undertakings I agreed to abide by.” (See Home Page File No 10 -A)

 

 Chapter 7 Telstra’s defence

The Uneven Scales of Arbitration

On 12 December, a bound document entitled Telstra’s Legal Submission (1994) was couriered to me in response to my interim claim—which was never completed. I was never given the extra thirteen months to prepare my claim, as had been the case when the arbitrator, Dr Hughes, allowed the other three claimants—Maureen Gillan, who signed her arbitration agreement on 9 April 1994, and Ann Garms and Graham Schorer, who, along with me, signed our three arbitration agreements, all witnessed by Barry Sullivan, ex-Detective Superintendent of the Queensland Police Force and later a Queensland Senator.

I felt sickened before I even opened it. I still hadn’t received most of the FOI documents I had requested back in December 1993—five more FOI requests followed—and here they were, making a response based on little more than half of my submission. I had not been provided a written receipt from Telstra for the Exicom TF200 telephone, which Telstra removed from my property on 27 April 1994, after my telephone and faxing problems had continued. Telstra advised me it would have to be removed as part of the arbitration process, as it needed to be analysed at their Melbourne laboratories.

The Sticky Beer in the Phone

That thuggery and deception was about to escalate. Here arises the infamous story of the sticky beer in the phone.

I have elaborated further on this story to how Mr Matherson of Austel helped me test two different Exicom model TF200 phones on the one line to find out if the ‘lock-up’ fault I had been experiencing was being caused by the phone or the phone line. These ‘lockups’ had meant that people on the other end of the phone could hear what was going on in my office after I had hung up. When we had completed these tests, Mr Matherson was quite adamant that we had proved that the fault was in the line because it occurred with both phones. Documents which I later acquired also showed that Telstra was aware that this fault often occurred in moisture prone areas like Cape Bridgewater.

My copy of Telstra’s Legal Submission, however, included a 29-page report titled ‘T200’. This document argued that the ‘lock-up’ problem with my phone/fax had been caused by spilt beer, found inside the casing of the phone.

For the record, the phone was removed from my office on 27 April 1994 but not received into Telstra’s laboratories until 10 May 1994. According to photographs included in this report, the outside of the phone was very dirty and, according to the technicians, when they opened the phone up, the inside was ‘wet and sticky’. Analysis of the wet and sticky substance showed that it was beer, and the conclusion was that the ‘beer’ had caused the ‘hook switch’ to lock up.  So, my drinking habits were the cause of my phone problems. The technicians didn’t know that Mr Matherson and I had tested two different phones on that line and found the same fault.

Moreover, when the phone left my office, it was quite clean — so how did it arrive at the laboratories in such a filthy state? If the ‘beer’ was not deliberately introduced, how did it get inside the phone? It certainly wasn’t even accidentally spilt there by me.

I put in a request with the arbitrator for a copy of the laboratory technician’s notes so I could see how they arrived at their conclusion. I explained I had appointed my own forensic document researcher to look over the documents. In response I received another copy of the original report — another instance of one rule for COT claimants and another for Telstra. Only a few weeks before, the arbitrator had allowed Telstra’s forensic document researcher access to my personal diaries.

I cannot begin to explain the anger that simmered inside me. I needed to expose the lengths Telstra had gone to with this ‘beer-in-the-phone’ farce. I knew they had faked the evidence, but I couldn’t prove it. And no matter who I contacted about this — Senators, the arbitrator, the arbitrator’s secretary — no-one cared to know.

Telstra was even saying ‘beer-in-the-phone’ was the cause of my ongoing fax problems, so I set about accessing Telstra’s technical analysis data covering the times when my fax problem was at its worst. This data showed that the ‘lock-up’ fault had been occurring in the network system since at least August 1993. So, I asked the arbitrator to ask Telstra how ‘beer’ could stay wet and sticky inside my phone from August 1993 to May 1994.

In fact, this data wasn’t even necessary to prove my case. Telstra had supplied a new phone to replace the one they took away, and it was no surprise to me that, according to their own data, the lock-up problem remained after the ‘dirty’ phone was replaced. It was still a problem when I sold the business in 2001.

As to Telstra’s assertion that the telephone was ‘very dirty’, it is fortuitous that, just before the technician took the phone away for testing, I had attached a white label to the front advising staff this was the phone to use. It was perfectly clean, as the photo Telstra took when it arrived at its laboratory shows. They had failed to keep track of their deception. You don’t need a forensic document specialist to see the difference between the two photos provided by Telstra.  Yet I could find no-one willing to challenge Telstra on tampering with evidence in a legal process, which is a criminal act.

I had urgently and constantly requested the Exicom/TF200 laboratory testing results for my arbitration, which was not supplied by March 1995, so I lined up Paul Westwood, of Forensic Document Services to investigate my suspicion that Telstra’s TF200 report was fraudulent. The arbitrator, however, refused to appoint him, and there the matter remained, until November 1995, six months after my arbitration was declared final, when there came another instalment of the ‘beer in the phone’ saga.

In a bundle of FOI documents was a laboratory report which showed that Telstra had carried out two investigations into my TF200. The second (on 24–26 May 1994) was two weeks after the first (10–12 May), and it proved that the first one — whose results had been provided to the arbitrator — was a total fabrication. Someone in Telstra had realised the first report was in some way dodgy and had authorised the second.

The second report, handwritten by Telstra laboratory staff, included graphs and photos and it showed that, when wet beer was introduced into the TF200 phone it dried out completely in 48 hours. My phone, found to be ‘wet and sticky’ in the first report, had not been tested until 14 days after it had been taken from my office. There was no way it could have been ‘wet and sticky’ after two days, let alone two weeks.

So, Telstra management knew, when they submitted that first report as part of my arbitration, that their second laboratory investigation had proved the first one was (to say the least) unreliable. But even with this freshly received evidence in December 1995, the TIO refused to investigate.

Beyond the beer in the phone deception, many other misleading statements were made under oath by Telstra’s defence unit and their technicians and included in their Legal Submission. Most disturbing of these were the signed Statutory Declarations made by some of the local technicians who knew from experience that Telstra’s network system into the local exchange was not up to standard, yet who still signed these legal documents that insisted everything (except for some minor, everyday type faults) had been all right during the period covered by my claim.

One local technician went so far as to say that he knew of no other business in the Cape Bridgewater area that reported the type and number of phone problems that I had. His statement even included mention of a friend, a stock farm agent, who had never had phone problems in Cape Bridgewater. When I checked Telstra’s own fault data, however, this very friend had, in fact, complained seven times in a matter of weeks during early 1994, including complaints about his fax line.

Another three local technicians stated under oath that back in 1988 when I moved to the area, the old RAX exchange at Cape Bridgewater had five incoming and five outgoing lines, and that any ensuing congestion would not have affected my service much during business hours. In fact, the exchange had only four lines in and out, and Telstra’s archives shows congestion was a problem between the Cape Bridgewater and Portland exchanges.

The worrying thing is that, if these three technicians truly believed their story, they were not very good at their jobs. Someone should have noticed there were only eight final selectors!

 

My reply to Telstra’s defence, January 1995

By chance, it was during this time I saw the American Movie Class Action, the story of a pharmaceutical company that knew the dangerous side-effects of one of its drugs but continued to sell the drug anyway. A chemist preparing a report for the company finds a flaw in the production of the drug, and the company chose to ‘lose’ the report rather than spend the money to correct the flaw. Business as usual. What struck me about this story though, was how the pharmaceutical company swamped the lawyer representing the patients with thousands of documents at the very last minute so that the lawyer had a very hard job finding a key report in time. According to the movie, this process of ‘burying’ important documents is called ‘dumping’.

Just before Christmas, and eleven days after they had submitted their legal defence, Telstra ‘dumped’ approximately 24,000 discovery documents on me — the very documents I had been waiting for to make my submission complete. And of course, the material I needed was buried in masses of irrelevant documents.

Clearly, this was a ploy. Telstra thought that by supplying them after I’d made my submission, it wouldn’t have to defend those documents, especially given I had only two weeks in which to submit my reply to Telstra’s defence.

The festive season is always the busiest time for bookings. Fortunately, Cathy had, by this time, moved into the camp house. Without her assistance I would never have survived through this time. Christmas slid past in a blur, and I found myself with still thousands of discovery documents to sort through. It was a miserable job.

On 6 January I sent the arbitrator a list of procedural documents I needed to support my response, asking him to request these documents from Telstra. By my deadline, however, I was still waiting and had to file my response without them. I was at a loss to know where to turn for help. Again, I was faced with the same tactics. Stonewalling and silence. (The documents I requested did eventually turn up, two years later.)

The arbitrator did, however, respond to a letter I sent asking for more information about the Bell Canada report. In his reply on 23 January 1995, he said: “Telecom does not consider it has any further information of relevance in its possession.’ He asked me to respond to this within 24 hours to ‘be certain that there is no confusion between the parties as to the documentation which is being sought.”

I did respond, within the 24 hours, asking for all the raw data Telstra had concerning the BCI testing at Cape Bridgewater. And heard no more about it. No data, no response of any kind.

My fax account shows that my response left my office and travelled to the arbitrator’s fax machine. Twelve months after my arbitration procedure was completed, I learned that Telstra did not receive this response. Then, on 28 June 1995 I learned that the arbitrator, apparently, had not received the fax either. The newly appointed TIO, wrote to me:

(The arbitrator) “provided you with a copy of this submission on 23 January 1995, noting that Telecom did not consider it had any further information of relevance in its possession. (The arbitrator) then invited you, within twenty-four hours to respond to Telecom’s submission. Our files do not indicate that you took the matter any further.”

This level of misplacement is astonishing. What happened to my fax? I might have imagined it simply got lost in the ether. But in August 1995 (three months after my arbitration), in a bundle of documents from the arbitrator’s office, there it was, a copy of the actual letter I sent to Dr Hughes, with the fax-footprint: ‘24-01-1995 – 15:12 – FROM CAPE BRIDGE HDAY CAMP TO 036148730’ confirming the arbitrator's office did receive it at all.

Despite this irrefutable proof, the TIO’s office has refused to provide me answers to why this most important BCI letter was never acted on. Had it been, the whole outcome of my arbitration might have been different.

A visit by Ferrier Hodgson Corporate Advisory (FHCA)

In February 1995 I was visited by people from the arbitration financial unit (we shall call them - FHCA) to assess my financial losses resulting from the failures in my phone service. A representative from Telstra came separately and was delayed by poor landing conditions at the local airport. FHCA was supposed to provide a list of who they interviewed and where they went on their trip to Cape Bridgewater and I had been led to believe that they provided just such a list to Telstra, but I never saw any documentation myself.

Under the rules of the arbitration, neither the resource unit, the technical advisory unit or FHCA was allowed to be alone with either Telstra or with me but there was not much we could do about the two-hour delay between the time the FHCA and the Telstra people arrived, except for FHCA’s solitary inspection of the general area. When the Telstra representative finally arrived, I saw FHCA’s true colours: everything I said was ignored or negated. FHCA already had fixed ideas about this case. The way they played down my business in front of the Telstra representative was a clear indication of what was to come.

Bearing in mind that FHCA and Telstra were not supposed to spend time together without me, I had arranged lunch at the camp. My offer was, however, declined and the others all adjourned to the Kiosk by the beach, contrary to the rules of the arbitration. What could I do? They all returned later and left together for Melbourne.

Well into 1995, I was still struggling to collate all the FOI documents I was still receiving, so late into the process, into some sort of sensible order. As I understood it, the arbitrator was not accepting any more material in support of my claim, but I was still being charged for calls which never connected, and I hoped for another oral hearing. I phoned the arbitrator to ask for access to the technical resource unit, for their help in best presenting all this evidence of ongoing problems; I explained that I could not afford to pay my own technical adviser any longer.

The arbitrator told me that the technical resource unit, would be visiting Cape Bridgewater shortly and we could discuss the presentation of my material then. Before that visit occurred however, DMR Australia pulled out of the process and a new technical unit was commissioned by the TIO’s office: (we shall call them LS Telecommunications), run by a man who had worked for Telstra for 20 years. (DMR Australia, it transpired, had pulled out because Telstra offered them valuable contracts and DMR saw a conflict of interest. I had to wonder: did Telstra deliberately set up this ‘conflict of interest’ situation? And how could DMR pull out of a signed contract?)

Ann, Graham and I told the TIO we did not want our claims assessed by an ex-Telstra employee and so DMR Group Canada was brought in to lead the process, with LS merely assisting. As it turned out, however, and contrary to the written agreement given by the TIO, LS did most of the assessments. Once more the TIO had misled us.

On 6 April 1995 a Telstra official arrived at the camp and together we collected a representative from LS from the airport. While I hoped to discuss my own concerns with ongoing phone problems with the Lanes representative, the visit was in fact a component of the arbitration process. The technical resource unit needed to make a general inspection of my premises, and the two local exchanges.

The three of us inspected the exchanges at Cape Bridgewater and Portland and had discussions with the local technician (the one with the stock farm agent friend who never had problems with his phone).

While the LS representative was in Cape Bridgewater, I attempted to raise the incorrect billing issues. But apparently, the arbitrator had instructed LS not to assess any new claim material. I was angry, for the arbitrator had assured me that if I discovered any new information among FOI documents, that information could be presented to the technical resource unit when they came to the camp. I had worked night after night to have my evidence prepared before the technical team arrived and it was clear to me that this new information supported my allegations. I was so angry, in fact, that he agreed to look at one document.

How could I be charged for a 9.49-minute call on 13 January 1995 at 11.50 am, I asked, and then for a 42 second call at 11.57 am? This is an impossibility. This caught the attention of the LS representative, and he agreed to look at further examples of incorrect charging on my 1800 account as compared to my diary notes. Such unacceptable charging had been running rampant through Telstra’s network, just as this copy of my account shows.

Neither the Telstra official nor the Lanes representative was prepared to comment on this evidence during my arbitration, although I was assured that the matter would be addressed.

They left shortly after this, together — and without me, which was in direct breach of the rules of arbitration. Who knows what private conversations may have taken place between them. On so many counts, now, I was convinced that the arbitration was a sham, with the single aim of ‘shutting me up’ with some minimum award.

But after they left, I had an idea. The Commonwealth Ombudsman’s Office had been supportive of my allegations concerning Telstra’s failure to supply discovery documents in a timely manner. Throughout this whole awful saga they had, again, proved themselves to be impartial and concerned primarily with natural justice.

The Commonwealth Ombudsman’s Office was preparing a report on Telstra’s tardy provision of COT’s discovery documents under the FOI Act, and I guessed that it would keep a copy of every document I had faxed them, or they had faxed me. I therefore asked them to use my 1800 number for any calls to me, because I guessed they would also document any calls they made in relation to my complaints. I was betting that the Commonwealth Ombudsman’s Office’s tally of those calls would not match up with my 1800 account.

And indeed, two years later, on 28 February 1997, the Commonwealth Ombudsman’s Office presented a document to Telstra, covering all communications between my office and theirs, as part of their report to Telstra’s Corporate Customer Affairs Office. This report documented all faxes to and from me, as well as all calls to and from my office — they made 43 calls to my 1800 account. Bingo! Over this same period Telstra charged me for 92 calls from the Ombudsman on my 1800 account. In their investigation, the Commonwealth Ombudsman’s Office confirmed these events.

So, it had been a sound idea, not that it helped my case. At the time of writing, Telstra has still not refunded me for these wrongly charged calls, nor made any attempt to explain the discrepancy. Nor has this matter been investigated by the TIO’s office, though the Commonwealth Ombudsman’s data demonstrated that incorrect charging on both my 1800 line and my fax line (in every instance, favouring Telstra) continued for at least 18 months after the arbitrator handed down my ‘award’. Since this incorrect charging was one of the issues I raised in the arbitration, and it was not addressed or included in the ‘award’, I do not consider the arbitration procedure is yet complete. I have written several letters to the TIO’s office about this matter, to no avail.

The arbitrator was due to hand down his award on 11 May 1995. Before that day, though, came the DMR/Lanes report on the technical losses and the FHCA financial report. The dire content of both these documents prepared me for a very poor result.

TIO-technical report

On 2 May I received the TIO-technical report, dated 30 April 1995, on the phone faults my business suffered over the period of my claim. Outrageously, this report left out more than half my claim documents. Despite numerous requests, the TIO would not investigate why both the arbitrator and the TIO consultants allowed so much of my claim material to be left out, or indeed who authorised a supposedly independent technical resource unit to ignore claim documents in a legal procedure.

All the incorrect charging issues had been ignored, as had the issues of lost faxes and phone faults that continued throughout the arbitration process, that were even then still losing me business. Nor had they touched the ‘lost’ incoming calls, charged for but not received.

There were some concessions in the report. The TIO consultants did acknowledge that they had not assessed all my claim documents. And they did find several of my claims to be proven and found against Telstra on a few issues, but to nowhere near the extent that could be reasonably expected based on my claim documents. For just one example, I cite material related to my gold phone, taken from a section covering the telephone exchange, referred to as RCM 1, which my coin-operated gold phone was connected to for most of the time. (The DMR/Lanes report drew on Telstra’s own data and records.)

2.2       There were consistent problems with the RCM system. Mr Smith’s services were carried on RCM No 1 until February 1994. This system had a track record of problems, and the RCM system components were the subject of several design corrections (Work Specifications). These issues were likely to cause a range of problems (as reported) over the period August 1991 to February 1993 (a period of 18 months) when Mr Smith’s services were transferred off RCM 1 and service improved. Specific problems caused are covered in later paragraphs (ref: 2.8, 2.9, 2.21).

            ASSESSMENT – Service was less than reasonable.

2.8       RCM 1 failure due to lightning damage. Lightning damage to communications equipment would be expected from time to time in this area. Reasonable service relates to the time taken to return the service to normal. A reasonable expectation would be repair within less than the 4 days taken.

            ASSESSMENT – Service was less than reasonable.

 2.9      Evidence of problems with services on RCM 1 had been sufficient to cause Telecom to move the CBHC services away from RCM 1 to RCM 2 and 3. Later when the RCM equipment was examined by Melbourne staff, evidence of severe error levels had accumulated on the counters in the transmission equipment (particularly RCM1). After corrective action these severe error levels were no longer accumulating.

            ASSESSMENT – Service was less than reasonable.

So far, so good. But then the report summarises the situation:

“Intermittent effects on the gold phone resulted in it being removed from RCM 1 11 days after potential cause (lightning strike damage to RCM 1). At the time of removal, the actual equipment fault had not been found, although testing was continuing. This seems to have been a reasonable action and timescale under the circumstances.”

ASSESSMENT – A reasonable level of service was provided

So, while at 2.8, four days was deemed an unreasonable timeframe for repair, in the summing up they find eleven days was reasonable. Moreover, the ‘11 days’ is itself in error. The lightning strike occurred in November 1992, and the fault wasn’t rectified until late January 1993, which amounts to almost three months out of service, not 11 days.

However, this finding does not match the finding for this same fault see Austel’s finding dated 4 March 1994, at Point 155:

Point 158 – “The crucial issue in regard to the Cape Bridgewater RCM is that assuming the lightning strike did cause problems to the RCM in late November 1992 these problems were not resolved till the beginning of March 1993, over 3 months later. This was despite a number of indications of problems in the Cape Bridgewater area. Fault reports from September 1992 also indicate that the commencement of problems with the RCM may have occurred earlier than November 1992. A related issue is that Mr Smith’s persistent complaints were almost certainly responsible for an earlier identification of problems with the RCM than would otherwise have been the case.”

Point 160 – “It should be noted that it is hoped that a number of issues in regard to the Cape Bridgewater RCM will be clarified when Telecom provides the documentation requested by AUSTEL.”

Point 169 –" Documentation reviewed indicates that other network users attached to the Cape Bridgewater exchange did report problems similar to those experienced by Cape Bridgewater Holiday Camp. It is also clear that problems identified in the area would have impacted on other network users as well as Cape Bridgewater Holiday Camp."    

But these are just details. In total, there were four paragraphs dealing with the gold phone, and in each one service was assessed as less than reasonable. And yet the summary assessment was positive. This is not even logical, let alone fair. It is incomprehensible that they gave the gold phone a positive assessment, since they acknowledge at 2.2 that RCM 1 ‘had a track record of problems. My claim documented more than six years of continuous customer complaints about the gold phone, in diary notes and letters. Ah yes, these were among the documents they did not assess.

I challenged DMR/Lane’s assessment of my gold phone and supplied both Telstra and the TIO’s office with conclusive evidence, including Telstra’s own documentation, of continuing problems with the gold phone. To no avail. In December 1995, I had finally had enough, and I refused to pay the gold phone account until its faults had been acknowledged. Telstra’s response was to cut the phone off.

The formal DMR & Lane report dated 30 April 1995 contains 23 assessments that highlight critical issues. Specifically, at point 3 of their findings, DMR & Lane noted that approximately 200 fault reports were filed between December 1992 and October 1994. However, they admitted that their analysis focused only on these 23 assessments and did not consider the remaining 177 fault complaints logged during that period.

This incomplete assessment significantly impacted my arbitration process, which cost me over $300,000 in professional fees. DMR & Lane only evaluated less than eleven percent of the reported faults, which is concerning.

Moreover, Austel’s findings on 4 March 1994 state at point 209 that Cape Bridgewater Holiday Camp has a longstanding history of service difficulties dating back to 1988. While most of the documentation originates from 1991, it is clear that the camp has faced ongoing service issues for the past six years, adversely affecting its business operations and causing loss of customers.

When DMR & Lane acknowledged that they only assessed 23 faults from the complaints raised between December 1992 and October 1994, they essentially admitted to creating a sloppy and incomplete report. 

The report mentions at point 2.23: “Continued reports of 008 faults up to the present. As the level of disruption to overall CBHC service is not clear, and fault causes have not been diagnosed, a reasonable expectation is that these faults would remain ‘open’.” 

Unfortunately, these faults remained unresolved for an additional eleven years, as evidenced by my website, absentjustice.com.

 

FHCA financial report

FHCA’s financial report was even more of a nightmare. It was incomplete; it did not show the workings which resulted in their findings which were to downgrade my true losses by as much as 300 per cent in some areas. It was so incomplete, it was difficult to challenge it, for there was nothing substantial to grasp in it. The errors of logic were painfully elemental.

For instance, although the FHCA report acknowledged that my business accommodated social clubs as well as school groups — ‘An analysis of the clientele of Cape Bridgewater Holiday Camp shows that only 53% were in fact schools’ — it based its calculations of business losses on the lower end of my revenue base, the $30 per two overnight rate for school groups, compared to the $120 to $160 charged for the 47% that were fully catered social club patrons. Given an approximately fifty-fifty split of school and other groups, this downgraded my losses by a minimum of at least 300 per cent.

Derek Ryan, my forensic accountant, was shocked at its handling of the arbitration procedure and wrote a 39-page report to the arbitrator detailing the failings he had found in it, including actual errors. For a couple of instances:

1.         The FHCA report does not include any detailed workings, so we have endeavoured to recalculate the FHCA figures given their assumptions and the base figures which were included in our report dated 21 June 1994.

            Our recalculated figures are still higher than the FHCA figures and we are unable to determine the reason for this.

2.         We believe that the FHCA report contains many inaccuracies and in the main area of loss quantification is simply wrong. The main calculation of loss has been considerably understated by an error logic.

            The error of logic appears to arise from the fact that FHCA reduce the total bed capacity by the night utilisation of 48% (to give available bed capacity) and FHCA then apply the bed occupancy rates to the available bed capacity. It is incorrect to reduce the total bed capacity by both factors.

Derek received no response from the arbitrator, so he contacted the project manager of my claim at FHCA, to ask how he had arrived at his findings. The project manager explained that he had instructions from the arbitrator to exclude a large amount of information from his final report. This meant the so-called independent arbitrator had forced the so-called independent financial assessors to ‘doctor’ their report. Derek wrote to Senator Richard Alston, Minister for Communications and the new TIO, to express his professional disappointment with FHCA. He considered their conduct detrimental to my claim because, since their report was incomplete, he had no firm base on which to formulate his response or, indeed, to challenge the report.

Six years later, and too late to make any difference, I received from the TIO’s office a copy of a letter dated 13 February 1996, from the Project Manager of FHCA to the TIO, written evidence that the FHCA financial report was incomplete: 

‘...I did advise Mr Ryan that the final report did not cover all material and working notes.”

Instead of the TIO providing this letter to me, within the statute of limitations period so I could use it in an appeal against the arbitrators’ award, the TIO concealed it until 2002 – outside the statute of limitations.

However, between 18 October 1995 and 4 October 1997, with the assistance of the Director of investigations on behalf of the Commonwealth Ombudsman, I sought, under FOI, from Telstra a copy of their arbitration file on my matters It confirms the Director of Investigation did not believe Telstra’s claim that it destroyed the file. I also tried to access a copy of the same arbitration file held by the TIO office, which, as the administrator of my arbitration – under law – had to retain a copy for at least six years: until 2002. The administrator (TIO) of my arbitration in his letter, of 10 January 1997, in response to my request, states:

“I refer to your letter of 31 December 1996 in which you seek to access to various correspondence held by the TIO concerning the Fast Track Arbitration Procedure. …

I do not propose to provide you with copies of any documents held by this office.” 

It became obvious by this time of the February 1996 letter, that the TIO arbitration resource unit and the arbitrator had collaborated with Telstra in ensuring my singles club (my second business) would not be assessed as a separate business loss and did not take into account the higher revenue loss of my single club dollar, but only valued my losses at the lower tariff I charged for school groups. However, I wanted something more substantial – perhaps the actual working notes, which were removed from the FHCA report under instruction by the arbitrator, and would have detailed my singles club information that I provided FHCA in February 1995. This single club material was never returned to me after my arbitration was finalised. The losses associated with my singles club patronage (which were never considered by the arbitrator) are extensively discussed on the website absentjustice.com

I very much doubt that the TIO informed Senator Richard Alston of this admission by FHCA.

The Award, May 1995

On 11 May 1995, the arbitrator handed down his award. He found in my favour on several instances, but these were based only on old fault reports; he didn’t address the ongoing problems which I had constantly advised him of and which he was obliged by the terms of Austel’s COT Cases Report to address. The award seemed to presuppose that I no longer had any problems with my phone service and that all had been addressed and made up to standard. How he could have come to this conclusion is incomprehensible to me.

The award gave me little over ten per cent of my claim. After I had considered all the expenses, I accumulated just to bring the phone problems to the attention of Austel and the Senate and submitting my claim to the arbitrator, I was left with about four per cent.

It was not the case that my claim was inflated. Another accountant, used as a co- advisor from Freemans, once treasurer of the Liberal National Party LNP in Queensland and now a senator, valued my claim at an almost identical amount.

I am not allowed to speak of the amount of the award, but there are things I can mention. In his award, the arbitrator said he ‘had to take into account the decrease in tourism’ in my area as one of the factors possibly contributing to lost business at the camp. This was outrageous; he was trying to explain my business losses in terms of a decrease in tourism, when all the objective evidence was pointing to an increase in tourism in my area.

Even the FHCA Report recorded an increase in numbers of tourists visiting the Portland region (from 1,396,000 in 1991/92 to 1,565,000 in 1993/94). This increase (which I referred to in my claim documents) was supported by figures supplied by the Department of Conservation and the Environment and by the Victorian Tourism Domestic Monitor. So, on what conceivable grounds had the arbitrator decided there had been a decrease in tourism in the area?

Speaking of the FHCA Report, the losses as calculated were taken on board. The arbitrator made his award based on those faulty calculations.

The arbitrator appears to have based his award on the assumption that Telstra’s defence claims were undisputed fact. He says, under the heading ‘Faults Caused by Claimant’:

(c)     Telstra nevertheless maintains that most reported faults were attributable to mis-operation by the claimant or by his callers or to normal wear and tear on the equipment they were using.

(d)     In this regard I have noted for example, the Statutory Declaration by ——, a senior technical officer (grade 1) who concluded that specific fault allegations involving the claimant’s answering machine, cordless phone, and facsimile machine could only be attributable to operator error. I have also noted a statement by ——, senior Telstra technician officer grade 2, to the effect that reported facsimile machine faults were attributable to customer error. (re: government held documents)

My claim documents clearly indicated that the faults which plagued my business right through my arbitration (1994–95) and for years afterwards were NOT due to operator error. The arbitrator was treating my assertions and Telstra’s assertions completely differently. Of course, the arbitrator could not know when one of us was not telling the truth, and he could only deal with the material placed before him; but he should not have assumed, without investigation, that it was I who was the unreliable party. I find this even more reprehensible given that I was so often forced to complain of Telstra’s deceptive or underhanded behaviour.

I knew Telstra was lying. Many of the documents cited in this book are evidence of the fact that Telstra knowingly lied in its defence of my arbitration, but at the time I needed it, I did not have the hard evidence. And even when the evidence started coming to hand, it was not accepted — not by the arbitrator, nor by the TIO, and sometimes not even by Austel. They didn’t want to know. But it was their job to want to know.

Just for the record, Telstra’s own archival material contradicts the assertions of the technical officer made under Statutory Declaration in point (d) above. The following internal fault record, in relation to my fax line (the name of the technician has been blanked due to an FOI stipulation) notes:

“… rang to advise me had found several problems with the RCM system Mr Smith was previously connected to. The major problem was caused by faulty termination of resistors on the bearer block protection another problem was caused by non-modified channel cards, a full report will be submitted by Len in the next week.”

Both the engineer the memo was addressed to, and the National Facsimile Support Centre, experienced fax problems when attempting to send faxes to my business. As far as I can tell, the technical officer committed an act of perjury in a legal arbitration process.

Whether the TIO believed this perjured information or not is irrelevant. As administrator to my arbitration, he had a duty of care to give equal attention to my claims and concerns, and this I believe he did not do. While I mainly did not have evidence to hand during my arbitration, once it did come to hand (months or years afterwards through delayed FOI documents), I brought it to the attention of the TIO and urged him to investigate. He therefore has no excuse for not being aware of the unlawful way in which this procedure was conducted and should have convened his own investigations into the matters raised.

What has been particularly difficult to accept are the statements made by Dr. Hughes in his award at point 3.2 (h). The claimant asserts that he continued to experience transmission problems after March 1993; however, since July 1994, he has had relatively few complaints.

This statement contradicts the five separate letters Dr. Hughes received, along with attachments dated October 4, 1994; November 11, 1994; and December 1, 8, and 16, 1994, from Telstra and AUSTEL. These communications alerted him to ongoing billing issues related to 008/800 numbers that were concerning to AUSTEL. They demanded clarification on whether he intended to address these issues. Furthermore, they instructed him not to inform AUSTEL of his decision, as they were obligated in the public interest to address the matter if it was not resolved in arbitration, given that it likely affected other Telstra subscribers.

I felt completely shattered, but I had to keep going, I had customers to deal with. Six days later, however, nature took over. In front of a group of campers, some sixty children and staff, I collapsed. An ambulance delivered me to hospital and, at first, it was suspected that I had suffered a heart attack. Five days in hospital followed and the final diagnosis was stress.

On my first day home I received a call from the FHCA project manager. He wanted me to know that he was aware things hadn’t turned out quite as I had hoped. He believed I now had to put it all behind me, get on with my life and show ‘them’ that I could do.

I am still wondering who ‘them’ was. And why, really, he had rung. By this point, my appeal time had elapsed. Had he heard about my collapse and had an attack of conscience? During this conversation, he also informed me that the executive manager of my case with was from Canada would also going to ring me; and so, he did.

The Canadian technical consultant manager said something like: ‘I was sorry to hear you had been ill and I hope you get better soon. This has been the worst process I have ever been a party to. This sort of situation would never have happened in North America.’

I was so stunned at this statement that I later forwarded a signed Statutory Declaration of my memory of it to various government ministers. I wrote to DMR in Canada for clarification but received no response. Tantalising possibilities that went nowhere. I was clutching at straws. After so many years and such a high cost, it was hard to let go in the face of such a disappointing and unjust result.

We draw the reader’s attention to the 12 May 1995 letter from the arbitrator to Warwick Smith (who was also the first Australian Telecommunication Industry Ombudsman (TIO). This crucial concealed arbitration letter states:

“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.

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.”

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 timestamps. 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 which states:

“We canvassed examples, which we are advised are a representative group, of these phenomena .

 

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.

As we have shown elsewhere in our story this one of the original two technical consultants attesting to the validity of this Scandrett & Associates 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.” 

Was this letter 12 May 1995 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)? 

The fax imprint across the top of this letter is the same as the fax imprint described in the Scandrett & Associates report, confirming faxes were intercepted during the COT arbitrations. The question the Telecommunication Industry Ombudsman and the Federal Attorney-General has still not answered is:

If I had received a copy of this 12 May 1995, 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?

On 23 May 1995 (Two weeks after the conclusion of my arbitration) another 700 or so FOI discovery documents arrived. Why now? What was Telstra playing at? I could have used the material twelve months ago to support my claim. Ten days ago, I could have used them to support an appeal against the award. Now, the only way I could use them was if I took the matter to the Supreme Court of Victoria, an alternative. Once the TIO and arbitrator heard that this was exactly what I was intending to do they set about destroying my credibility.

 

Playing politics

David Hawker, my local federal MP, had supported me, and the issue of rural telecommunication services, since 1992. In September 1995, before the Liberal government came into power, he arranged for some of the COT members to meet with the then Shadow Minister for Communications, Senator Richard Alston, in his office in Canberra.

Senator Alston had taken an interest in the COT cases from very early on, and in this meeting he was supportive of my claims regarding the unethical conduct by various parties associated with the administration of my arbitration, including my claims that Telstra had been listening in to my private phone calls as well as intercepting my faxes during the arbitration. Senator Alston had been under the same illusions as the COT four that the arbitration would be a non-legalistic and fast-tracked process. He expressed his concern that FOI discovery documents showed that Telstra knowingly used flawed and fabricated test results to support their defence of my claim, and that they had allowed the 10 November 1993 flawed BCI Addendum Report on Cape Bridgewater (Telstra's Falsified BCI Report) to remain in the public domain.

After the Coalition victory in 1996 Senator Alston became the Hon. Senator Richard Alston, Minister for Communications and the Arts. At this point his office asked me to supply them with a full report on my claims and the allegations I had made against Telstra over the years, along with any allegations I had about the conduct of the arbitration. I set about producing the report they needed: just to produce a chronological listing of events took 82 pages which I bound into a book, supported with a separate volume of attachments indexed to the main document. A copy of this report was sent to Senator Alston and another to the Commonwealth Ombudsman’s office.

Regrettably, since Senator Alston was appointed to a position which gave him the power to instigate a full inquiry into the many issues raised by the COT cases, nothing more happened in this matter beyond a letter of acknowledgement in September 1996.

The Exicom T200 and beer-in-the-phone reprise

Another FOI document received too late proved that Telstra was aware of the moisture problems associated with the Exicom T200 that resulted in billing faults exactly such as I had experienced, faults that my arbitrator and Telstra refused to address in my arbitration. This same document, an internal memo, suggests that Telstra re-deployed phones they knew were faulty and returned them back into service to other unsuspecting customers, because they would ‘still have to be deployed in areas of lower moisture risk. The memo is not dated, but other information in it puts it around 1993–94.

Given that these phones were known to malfunction in moisture-prone areas, I cannot fathom why Telstra thought they would work in a coastal area such as Cape Bridgewater. Or why, when I began to complain of the billing problems they didn’t simply say, ‘Oh, sorry Mr Smith, this is not the right phone for you.’ What a lot of trouble that would have saved.

I wonder how many of these faulty T200 phones are still being used by unsuspecting Telstra customers in places of high moisture content, for instance, fish and chip shops, bakeries, industrial kitchens, or heated swimming pools etc. — and how many of these customers are incorrectly charged for calls they did not receive, as I was for so long.

I also wonder about the legality of redeploying products known to be faulty — though it seems the Telstra Corporation is exempt from the Trade Practices rules covering other corporations and businesses in Australia.

After so many let downs, imagine my happiness when, in November 1995, six months after the arbitrator handed down his award, I received in another bundle of FOI documents, the laboratory reports I mentioned in Chapter Seven, in which Telstra carried out tests on my T200 fax/phone at their laboratory to see how long beer would stay wet inside the phone casing. To read that Telstra laboratory staff themselves had proved that beer could not have stayed wet and sticky for 14 days (the time between the phone leaving my premises and it is arriving at the laboratory) was incredibly exciting.

It was already evening time, but in the heat of the moment, I rang the arbitrator’s home number. His wife answered and told me he was overseas and not due home for some days. Caught on the back foot and thinking it likely the arbitrator had discussed at least some aspects of my arbitration with his wife, I imagined that if she knew who was calling, she might be afraid I was going to be troublesome. On the spur of the moment I gave her another name, one I knew the arbitrator was familiar with — that of the FHCA project manager. According to my telephone account, this call was made at 8.02 pm on 28 November 1995 and it lasted 28 seconds.

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

 

 

 

The Institute of Arbitrators

Since the TIO would not act, it was time to find some other way of addressing the unethical conduct of the arbitrator. On 15 January 1996 I addressed my complaints to Laurie James, President of the Institute of Arbitrators Australia.

I had several complaints regarding the fact that the arbitrator had not operated within the ambit of the Arbitration Act. I provided evidence that the TIO and Telstra had also met in private, without a representative of the COT group, during the planning stages of our arbitration. The arbitrator and his resource unit also met with Telstra in private, before we signed for the arbitration. These meetings broke the rules of arbitration, and we will never know what was discussed in them. We can assume, however, that it was not to the advantage of COT members.

Also, when the TIO and his legal counsel began to pressure the COT four into abandoning the commercial process (the FTSP) and signing for arbitration (the FTAP), no-one informed us that the appointed arbitrator was not graded by the Institute of Arbitrators. I learned this from the President of IAMA in 2001, who told me the arbitrator was not a graded arbitrator at the time of my arbitration. In fact, while the arbitrator was engaged with the COT cases, he sat for, but failed, his grading examination.

Technically, he was not qualified to handle any arbitration, let alone one that was so complex and far-reaching as ours. This information was relayed to Senator Alston and the TIO, but to no effect, and no-one has yet satisfied me as to why an unqualified arbitrator was chosen to oversee such a vast process and why he was permitted to continue, after failing his examination.

Mr James worked quickly, for on 23 January 1996 Dr Hughes wrote to John Pinnock (the new TIO) under the heading ‘Institute of Arbitrators – Complaint by Alan Smith’ saying:

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

1.      the cost of responding to the allegations

2.      the implications to the arbitration process if I make a full and frank disclosure of the facts to Mr James.”

I would give a lot to see what that ‘full and frank disclosure’ might consist of. I couldn’t ask at the time, however, as I did not get a copy of this until 2001. What I did get next was something shocking and upsetting.

In February 1996 I received a letter from the President of the Institute of Arbitrators, Mr Laurie James, with a copy attached of a letter he had received from the TIO. The TIO had written to Mr James to say that my complaints about the arbitrator were ill-founded. The TIO backed up this assertion by relating a very different version of the events I have just described. In his letter, the TIO stated falsely that I had rung the arbitrator’s home at 2 o’clock in the morning. He also told Mr James that I had given a false name.

With its implications that a man who rang anyone at the socially unacceptable time of 2 am was possibly unstable, or a threat to the peace, this seemed like a gratuitous attempt to blacken my name. Why else would the TIO take an innocent incident and try to turn it into something sordid? The TIO is supposed to be unbiased. He must have known that his correspondence would bring my character into question. And if he was prepared to do this in my arbitration, what about the arbitrations still going on for other members of the COT group. Who was he supporting — the Australian public or the telecommunications carriers?

The TIO had also forwarded a copy of this letter to the arbitrator, who would have asked his wife for her version of the incident. I believe that, all things being equal, his wife would confirm that I rang at 8 pm and that I was perfectly polite. But who knows, perhaps the arbitrator and the TIO cooked up the 2 am version between them.

Mr James was not inclined to follow through with my complaint, so the TIO had achieved his aim.

So that was the consequence when I thought I had found dynamite with the confirmation that someone within Telstra had tampered with my Exicom T200 phone and that Telstra staff had perjured themselves in Statutory Declarations defending their beer-in-the-phone story.  

I had thought that anyone interested in justice would feel no option but to review my case. Instead, the person whose position it was to address this, chose instead to try to discredit me. And it was not the only attempt. I am not sure who stooped lower, the TIO or the arbitrator, as the concluding part of this story illustrates.

It was not until 2002, six years after the event, that I received from the TIO, through FOI, a copy of a letter dated 13 February 1996, written by the Arbitration Project Manager to TIO, which sheds some light upon the fate of my complaint to the Institute of Arbitrators. This is the story of the second serious attempt to discredit me (see absentjustice.com and the Abuse of power & Perversion of the course segment/links.

In the letter, this Project Manager (the one who I was forced to exonerate from all liability while assisting the arbitrator during my arbitration) acknowledges that the FHCA financial report was incomplete (‘… the final report did not cover all material and working notes’, but he then goes on to make an astonishing assertion that the Victoria Police Brighton CIB was about to question me in relation to criminal damages to his property.

 

In fact, the Victoria Police Brighton CIB never considered me a suspect in relation to any crime, and letters held by the TIO’s office confirm this. Nonetheless, the Project Managers letter to the TIO implied that I was about to be charged for criminal damage. What is more, those false allegations were then sent on to a third party, the arbitrator, who then attached a copy of the letter in his response. to Mr Laurie James, President of the Institute of Arbitrators Australia, who was investigating my complaints.

At the very least this constitutes massive defamation of character. And it very likely prejudiced Mr James against my case. Of course, I had no idea of the existence of this letter at the time. Over the years since I became aware of this defamation, I have made continuous complaints to the TIO and relevant government ministers. None of this has resulted in any apology or retraction, but that should not surprise the reader.

Senate Estimates

This has been a highly legalistic arbitration: by June 1997, Telstra had paid more than 18 million dollars to defend itself against the COT claimants. What chance did we have when we had to rely on Telstra documents to support our claims and the person in charge of distributing those documents also sat on the council of the TIO?

During question time at a Senate meeting on 24 June 1997, Telstra was questioned regarding its tardy supply of FOI documents to the COTs. By this time the Commonwealth Ombudsman had completed her findings relating to Telstra’s administration of the supply of discovery documents to Ann Garms, Graham Schorer and myself. She found against Telstra. This finding resulted in a Senate review of the cases of Graham and Ann, but not of my case. It has never been explained why I was left out, though it has been suggested that my ongoing phone problems represented a can of worms no-one wanted to open in public.

In this same Senate meeting, the Shadow Minister for Communications, Senator Chris Schacht, raised the issue of the $18 million that Telstra had paid out in legal fees during the COT arbitrations in contrast to the $1.74 million that the COT claimants had collectively received to that point:

“The thing that really is annoying is that the lawyers got millions, you paid them millions to go through all this process, and the claimants got $1.7 million — we know who won this case.

… you went through a process of hanging people out to dry for a long time.

Senator Carr, Labor, then said to Telstra’s Group General Manager:

I have a document here, headed up ‘TELSTRA SECRET’, which suggests that some time ago you were being advised that Mr Smith was likely to secure a substantial payment through a legal arbitration process. Is it not the case that probably it would have been in your commercial interest to have settled long before you did?”

The Telstra representative who was deflecting these questions by the various Senators, had overseen the COT arbitrations and responsible for supplying us our FOI discovery documents, was also a member of the counsel to the TIO’s office. He replied to Senator Carr:

“We could not reach a final settlement with Mr Smith before the matter went to arbitration. It was then taken over by Austel in its investigation into what became the COT Report.”

A neat side-step. And the issue was left basically unanswered.

The question of whether Telstra’s withholding of FOI documents was a deliberate ploy occupied a Senate Estimates Committee from September 1997 to January 1999. By that time there were 21 COT cases, and five of these, including Ann Garms and Graham Schorer, were chosen for investigation. If it was found proved with these five that Telstra had acted deliberately such that their arbitrations had been compromised, then it would be assumed true for the remaining COT cases.

On 26 September the TIO was called before the Senate Estimates Committee to answer questions about the conduct of the arbitrations. He made an extraordinary statement:

“… the arbitrator had no control over that process, because it was a process conducted entirely outside the ambit of the arbitration procedures.”

This was an incredible reversal from the TIO’s office, and one that should have given me joy. Under oath, he was finally agreeing with what I had been saying for so long to the Institute of Arbitrators Australia. 

The Senate investigation proceeded over the next 20 months and delivered a decision that Telstra had indeed deliberately withheld FOI documents to the detriment of the COT claimants. But while this was proved for the five test cases, the decision to pass on the benefits to the remaining COT cases was reversed. The five received some 150,000 FOI documents between them (which now supported at least some of their original claims) and to top this off they also won a total award of more than fifteen million dollars between them from this Senate Inquiry, and the other sixteen got nothing, not even their previously withheld FOI documents which would have assisted all of them in their previous arbitrations/mediations but would have at this time, assisted them in any appeal they might decide to make.

On 23 March 1999, when this Senate investigation was over, the Chairman of the Committee, Senator Alan Eggleston, made a press release:

“A Senate working party delivered a damning report into the COT dispute. The report focused on the difficulties encountered by COT members as they sought to obtain documents from Telstra. The report found Telstra had deliberately withheld important network documents and/or provided them too late and forced members to proceed with arbitration without the necessary information. Senator Eggleston said: ‘They have defied the Senate working party. Their conduct is to act as a law unto themselves.”

In fact the TIO Board and Council had hidden two important issues from the Senate Estimates Committee: (1) The Board and Council knew that the TIO-appointed Resource Unit also stopped the COT claimants from receiving relevant documents during the arbitration process and (2) The TIO and the defendants (Telstra) let this happen by allowing the Resource Unit to decide which documents they thought were relevant for the arbitrator to view and which they thought should be withheld from the process.

So many people were concerned about what had happened to the remaining sixteen COT cases, at least one Senator showed support. Two Victorian Police officers had acquired in camera Hansard records for 9 July 1998, where it was noted that to award only those five cases under investigation would be an injustice for the remaining sixteen. They gave me a copy of the Hansard pages, which was frustrating as I was unable by law to use the information in them to pursue justice. Indeed, when I tried to use these privileged documents to support my continued request for access to FOI documents, I was threatened twice by Senator Eggleston that if I disclosed the content of these privileged reports I could be held in contempt of the Senate – a two-year jail sentence.

Questions and more questions

There are still many questions I am waiting to be answered by Telstra. The Commonwealth Ombudsman’s office has been attempting to extract replies from Telstra on my behalf, with some success, particularly on the more trivial matters, but more often with no success at all. For a typical instance, early in the arbitration process I had asked, under FOI, to see documents explaining just how the rules of the arbitration had been arrived at, particularly the first draft of these rules. When Ms Philippa Smith, the Ombudsman, relayed this request to Telstra she received the following reply:

“Telstra has been unable to locate (name deleted) further general files which include copies of the correspondence received from Hunt and Hunt in relation to the development of the Fast Track Arbitration Process and I am told that these files, along with other documents, were disposed of by his personal assistant sometime after he left Telstra’s employ”.

It seems the more mundane letters can be located but important evidence relating to my arbitration can be lost forever. This missing evidence could well have proved that the so-called ‘independent’ rules which the members of COT signed, were not independent at all.

Many documents mysteriously disappeared, and many organisations disassociated themselves from my arbitration over the years. When, in late 1996, I raised the question of the role of the previous President of the Institute of Arbitrators in the drafting of the rules of my arbitration, I was advised by the current President of the Institute that:

“The Institute of Arbitrators Australia has absolutely no connection with the arbitration between Telstra and yourself.”

Yet the TIO and my arbitrator stated in writing that the President of the Institute (later a County Court judge) in 1994 independently drafted the rules of the arbitration. Who do we believe?

In my case alone, when Telstra listed the documents, they received as part of my claim their list is 43 documents short of the number I forwarded to the arbitrator. Where are these documents?

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Chapter 8 My Award

It is important to again address parts of both the DMR & Lane and FHCA reports discussed earlier in this story because it is an area that when explained again in more detail we can clearly see the collusion and unconscionable conduct that went on between these two consultants who COT Case Ann Garms, Graham Schorer and me were forced to exonerate from all liability for any acts of negligence deliberate or by mistake.

Six years later, and too late to make any difference, I received from the TIO’s office a copy of a letter dated 13 February 1996, from the Project Manager of FHCA to Mr the TIO, written evidence that the FHCA financial report was incomplete:

‘...I did advise Mr Ryan that the final report did not cover all material and working notes.’  I very much doubt that the TIO informed Senator Alston of this admission by FHCA.

Instead of the TIO providing this letter to me, within the statute of limitations period so I could use it in an appeal against the arbitrators’ award, he concealed it until 2002 – outside the statute of limitations.

However, between 18 October 1995 and 4 October 1997, with the assistance of Mr John Wynack, director of investigations on behalf of the Commonwealth Ombudsman, I sought, under FOI, from Telstra a copy of their arbitration file on my matters. confirms Mr Wynack did not believe Telstra’s claim that it destroyed the file. I also tried to access a copy of the same arbitration file held by the TIO office, which, as the administrator of my arbitration – under law – had to retain a copy for at least six years: until 2002. Mr Pinnock (the administrator) of my arbitration in his letter, of 10 January 1997, in response to my request, states:

“I refer to your letter of 31 December 1996 in which you seek to access to various correspondence held by the TIO concerning the Fast Track Arbitration Procedure. …

I do not propose to provide you with copies of any documents held by this office.

It became obvious by this time of the February 1996 letter, that the TIO arbitration resource unit and the arbitrator had collaborated with Telstra in ensuring my singles club (my second business) would not be assessed as a separate business loss and did not take into account the higher revenue loss of my single club dollar, but only valued my losses at the lower tariff I charged for school groups. However, I wanted something more substantial – perhaps the actual working notes, which were removed from the FHCA report under instruction by Dr Hughes, and would have detailed my singles club information that I provided FHCA in February 1995. This single club material was never returned to me after my arbitration was finalised. The losses associated with my singles club patronage (which were never considered by the arbitrator.

The Award, May 1995

On 11 May 1995, the arbitrator handed down his award. He found in my favour on a few instances, but these were based only on old fault reports; he didn’t address the ongoing problems which I had constantly advised him of and which he was obliged by the terms of Austel’s COT Cases Report to address. The award seemed to presuppose that I no longer had any problems with my phone service and that all had been addressed and made up to standard. How he could have come to this conclusion is incomprehensible to me.

The award gave me little over ten per cent of my claim. After I had considered all the expenses, I accumulated just to bring the phone problems to the attention of Austel and the Senate and submitting my claim to the arbitrator, I was left with about four per cent.

It was not the case that my claim was inflated. Another accountant, Barry O’Sullivan from Freemans, once treasurer of the LNP in Queensland and now a senator, valued my claim at an almost identical amount.

I am not allowed to speak of the amount of the award, but there are things I can mention. In his award, the arbitrator said he ‘had to take into account the decrease in tourism’ in my area as one of the factors possibly contributing to lost business at the camp. This was outrageous; he was trying to explain my business losses in terms of a decrease in tourism, when all the objective evidence was pointing to an increase in tourism in my area.

Even the FHCA Report recorded an increase in numbers of tourists visiting the Portland region (from 1,396,000 in 1991/92 to 1,565,000 in 1993/94). This increase (which I referred to in my claim documents) was supported by figures supplied by the Department of Conservation and the Environment and by the Victorian Tourism Domestic Monitor. So, on what conceivable grounds had the arbitrator decided there had been a decrease in tourism in the area?

Speaking of the FHCA Report, the losses as calculated were taken on board. The arbitrator made his award based on those faulty calculations.

The arbitrator appears to have based his award on the assumption that Telstra’s defence claims were undisputed fact. He says, under the heading ‘Faults Caused By Claimant’:

(c)       Telstra nevertheless maintains that most reported faults were attributable to mis-operation by the claimant or by his callers or to normal wear and tear on the equipment they were using.

(d)      In this regard I have noted for example, the Statutory Declaration by ——, a senior technical officer (grade 1) who concluded that specific fault allegations involving the claimant’s answering machine, cordless phone, and facsimile machine could only be attributable to operator error. I have also noted a statement by ——, senior Telstra technician officer grade 2, to the effect that reported facsimile machine faults were attributable to customer error.

My claim documents clearly indicated that the faults which plagued my business right through my arbitration (1994–95) and for years afterwards were NOT due to operator error. The arbitrator was treating my assertions and Telstra’s assertions completely differently. Of course, the arbitrator could not know when one of us was not telling the truth, and he could only deal with the material placed before him; but he should not have assumed, without investigation, that it was I who was the unreliable party. I find this more reprehensible given that I was so often forced to complain of Telstra’s deceptive or underhanded behaviour.

I knew Telstra was lying. Many of the documents cited in this book are evidence of the fact that Telstra knowingly lied in its defence of my arbitration, but at the time I needed it, I did not have the hard evidence. And even when the evidence started coming to hand, it was not accepted — not by the arbitrator, nor by the TIO, and sometimes not even by Austel. They didn’t want to know. But it was their job to want to know.

Just for the record, Telstra’s own archival material contradicts the assertions of the technical officer made under Statutory Declaration in point (d) above. The following internal fault record, in relation to my fax line (the name of the technician has been blanked due to an FOI stipulation) notes:

… rang to advise me had found several problems with the RCM system Mr Smith was previously connected to. The major problem was caused by faulty termination of resistors on the bearer block protection another problem was caused by non-modified channel cards, a full report will be submitted by Len in the next week.

Both the engineer the memo was addressed to, and the National Facsimile Support Centre, experienced fax problems when attempting to send faxes to my business. As far as I can tell, the technical officer committed an act of perjury in a legal arbitration process.

Whether the TIO believed this perjured information or not is irrelevant. As administrator to my arbitration, he had a duty of care to give equal attention to my claims and concerns, and this I believe he did not do. While I mainly did not have evidence to hand during my arbitration, once it did come to hand (months or years afterwards through delayed FOI documents), I brought it to the attention of the TIO and urged him to investigate. He therefore has no excuse for not being aware of the unlawful way in which this procedure was conducted and should have convened his own investigations into the matters raised.

I felt completely shattered, but I had to keep going, I had customers to deal with. Six days later, however, nature took over. In front of a group of campers, some sixty children and staff, I collapsed. An ambulance delivered me to hospital and, at first, it was suspected that I had suffered a heart attack. Five days in hospital followed and the final diagnosis was stress.

On my first day home I received a call from the FHCA project manager. He wanted me to know that he was aware things had not turned out quite as I had hoped. He believed I now had to put it all behind me, get on with my life and show ‘them’ that I could do.

I am still wondering who ‘them’ was. And why, really, he had rung. By this point, my appeal time had elapsed. Had he heard about my collapse and had an attack of conscience? During this conversation, he also informed me that the executive manager of my case with DMR was also going to ring me; and so, he did.

The Canadian DMR manager said something like: ‘I was sorry to hear you had been ill and I hope you get better soon. This has been the worst process I have ever been a party to. This sort of situation would never have happened in North America.’

I was so stunned at this statement that I later forwarded a signed Statutory Declaration of my memory of it to various government ministers. I wrote to DMR in Canada for clarification but received no response. Tantalising possibilities that went nowhere. I was clutching at straws. After so many years and such a high cost, it was hard to let go in the face of such a disappointing and unjust result.

On 23 May 1995, another 700 or so FOI discovery documents arrived. Why now? What was Telstra playing at? I could have used the material twelve months ago to support my claim. Ten days ago, I could have used them to support an appeal against the award. Now, the only way I could use them was if I took the matter to the Supreme Court of Victoria, an alternative that was entirely beyond my financial means, as Telstra well knew.

Telstra principal FOI officer and well as a sitting TIO Councillor’s letter to me re late-supplied FOI documents which I should have received via my May 1994 FOI request again confirm that the COT Cases had no chance of ever receiving the justice the government assured us we would have if we went into arbitration with Telstra.

This individual served as Telstra’s arbitration defence liaison officer and was also a member of the TIO Council. I only discovered this information after the Senate highlighted a conflict-of-interest issue during an official investigation into the COT case from September 1997 to March 1999. The official Senate Hansard, which is available on my website absentjustice.com, reveals that this individual openly admitted to never disclosing his conflict of interest as Telstra's official arbitration officer during discussions about COT arbitration matters in the TIO office's monthly meetings.

This same TIO Councillor and Telstra arbitration heavyweight failed to advise the same 26 September 1997 Senate FOI investigation that he had waited in my case twelve months before releasing the FOI documents that would have supported many unaddressed issues raised in my arbitration. On opening this evidence, I remember saying to myself, if only I could have received these most relevant documents during my arbitration or even four weeks previous during my designated arbitration appeal period, I would have been able to successfully appeal part of the arbitrators' award.

However, this was wishful thinking. In the covering letter from Mr Benjamin dated 24 May 1995 under the heading “Your FOI the request of May 1994” includes the following: 

“Further documents have recently come to light that fall within your FOI request of May 1994.

Copies of these documents are enclosed. At this time a table has not been prepared giving decisions in relation to these documents as it was considered by Telecom more important you receive copies of the documents now.” 

It was clear from some of these documents that Telstra was fully aware they had a national network billing software problem. Was this the reason Telstra withheld these relevant billing documents for the whole period of my claim?

 

Chapter 9 Aftermath

Among the issues not addressed in my arbitration award was that of Telstra’s incorrect charging. Five months after my award came down, Austel visited Cape Bridgewater to view the documents that had not been addressed by the arbitrator. These amounted to six bound volumes of evidence I had accumulated to support my case. The Austel people appeared to be quite stunned at the six volumes and commented that they had never seen so much evidence, presented in such detail. (In fact, over the years leading up to my arbitration, I had continually provided evidence to Austel of Telstra’s incorrect charging.) Finally, they left, taking the volumes with them.

Austel allowed Telstra to address the material in the absence of any mediator such as the arbitrator, and I was given no opportunity to respond. I wasn’t even officially notified of Telstra’s response, I had to wait for an FOI document, which I received by chance in 2001. The information Telstra had provided to Austel in a letter in October 1995, defending itself against my itemised problems, was full of false claims. Had I been given the chance to show the comparison with my data, I could have proved this. But I was not given the chance, and Telstra’s version was privileged over mine with no further investigation. What sort of a way was this to provide justice? I was denied my legal right of challenge. The faulty billings continued.

Meanwhile the daily running of the camp was almost beyond me. Cathy was handling the work almost entirely on her own. All the marketing and promotional expertise I had built up over the years was of no help: I had no reserves of energy to call on, and more importantly, perhaps, I no longer believed any good could come of it. I was in a state of despondency, stewing on my situation. How could this be happening to me in Australia in the 1990s? Wasn’t this supposed to be a democracy? It felt like something out of Kafka.

I decided I had to do something, so for a start, I requested the return of all my claim documents (as per the rules of the arbitration) and waited with growing anger for weeks before deciding to drive to Melbourne and collect them myself in August 1995. I don’t know why I expected to have my request met at this time, in truth, I was spoiling for a fight. And indeed, my documents were not ready, the arbitrator’s secretary, Caroline informed me, and the arbitrator was not available.

I was not polite. I demanded she get my documents at once and reminded her I had put in my request three months before. ‘I am not leaving this office without those documents,’ I shouted. ‘Call the police if you want to, I don’t care. You have my property, and I want it back now.’ At last, a young lad appeared wheeling a trolley loaded with boxes. He asked me to sort out which were my claim documents; I simply took the lot.

It was a revelation. Among the documents were some I’d never seen before, and they were very interesting, to say the least. By the rules of my arbitration, any information supplied by one party must be automatically circulated to the other party and to the TIO’s legal counsel. Among the material I took from the arbitrator’s office that day, however, was an envelope full of documents and loose papers, none of which had ever been forwarded to me.

A letter from Telstra to the arbitrator had been sent with three attachments, letters sent between Austel and Telstra, between October and December 1994. Telstra wrote:

You will note from the correspondence that Austel has requested Telstra to provide information relating to charging discrepancies reported by Mr Smith for short duration calls on his 008 service. These issues form part of the subject matter of Mr Smith’s claim under the Fast Track Arbitration Procedure.

The simplest way forward may be for Mr Smith and Telstra and yourself to all confirm in writing that this information can be provided to Austel if this meets with your approval.

Now, if this was the way to go, why didn’t I receive some indication of this from the arbitrator? I received no correspondence from him at all on this matter.

In its letter of 1 December 1994, Austel had indicated that other Telstra customers in the Portland area had also complained about incorrect charging on their 008 services, and Austel raises this concern in their letter of 8 December:

A major consideration in Austel’s pursuit of the issue raised by Mr Smith was the likelihood that these problems, if proved to exist, would almost certainly affect a number of other Telstra customers.

In direct breach of the rules, the arbitrator did not forward these letters to me during the arbitration. And, as I have already told, the arbitrator made no finding in his award regarding the substantial evidence of incorrect charging in my claim documents.

In a letter of 11 November 1994 Telstra told the arbitrator and Austel that it would address these incorrect charging issues in their defence. That Telstra failed to do so, and that the arbitrator permitted this, I believe constitutes a conspiracy between the arbitrator and Telstra. Further incriminating documents in this cache I had unwittingly stumbled upon, supported the notion that there was a conspiracy afoot.

The DMR/Lanes report revisited

Among the documents inadvertently provided to me by the arbitrator’s office, I found another version of the DMR/Lanes technical report for my business. On the title page of the version, I received back in April 1995, the second paragraph consists of one short sentence: ‘It is complete and final as it is.’ The second paragraph on the equivalent page of the arbitrator’s report has more to say: ‘There is, however, an addendum which we may find it necessary to add during the next few weeks on billing, i.e. possible discrepancies in Smith’s Telecom bills.’

Again, in the arbitrator’s copy (on page 3), the fourth and fifth paragraphs state:

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.

This information is missing from my version of the report. Did the arbitrator and DMR/Lanes think I would forget about the billing issues if they didn’t remind me? To discover that DMR/Lanes intended to address the billing issues but mysteriously omitted this from the final version of their report just sealed my conviction that I was the victim of a conspiracy in this arbitration.

And it was here, under the heading ‘Cape Bridgewater Documentation’, I found the astonishing statement I mentioned in an earlier chapter: ‘A comprehensive log of Mr Smith’s complaints does not appear to exist.’

Were they playing games with me? I certainly had provided one! At times my life felt like one huge comprehensive log of complaints. Austel had been stunned at my volumes of evidence. I had images of my supporting documents being tossed into some ‘too-hard basket’ and I was fed up with it. Secure in their government jobs, had they any idea what we COT claimants were going through, what this meant to us?

What is so disturbing about these additions to the two conflicting DMR & Lane 30 April 1995 reports is that all 23 technical finding in each report are identical. When these two identical reports are read in conjunction with the Lane 6 April 1995 report, they are likewise the same. What this shows is that Lane not only produced 99.9% of the findings in all three reports they also conveniently failed to address my ongoing billing faults. What cannot be argued after viewing the two DMR & Lane 30 April 1995 reports is that at point 3 in both: it notes:

About 200 fault reports were made over December 1992 to October 1994. Specific assessment of these reports other than covered above, has not been attempted. There are 23 faults shown in both reports that were investigated, none were faults registered in the arbitrator’s award (findings) he notes that my claim was over a 6 and half year period from April 1988 to December 1994. This shows that DMR & Lane assessed less than two years of a six and half year claim.  To save arguing which faults which year was assessed and which was not, I again repeat as I have repeated on my webpage as well as in this book. Did Lane only assess less than a third of those faults registered because to have assessed ALL of my fault complaints which I might add amounted to over 600 for the six and half years (which the government regulator agrees) was one of the worst of all of the COT Cases is because to have assessed this amount of faults Lane would have had to acknowledge the Ericsson equipment was fault ridden. It appears it was best to purchase Lane Telecommunications Pty Ltd and all their computer files of all the COT Cases complaints so that there is no record in existence of the real problems the government was soon to inherit once the National Broadband Network (NBN) went into play.    

FOI avalanche

As if to rub my face in my defeat, months after the arbitrator had handed down his decision in my arbitration, I was still receiving hundreds, even thousands, of discovery documents. Some of them I had requested years ago and would have been most useful in supporting my claim, but by this time, of course, they were of no use anymore.

As these documents kept arriving, I found it impossible to just shut the door on the saga and walk away. I became increasingly convinced that I had been the victim of a deliberate act of sabotage, and not only in relation to obvious things like the ‘beer in the phone’ episode. Why, I wondered, did the arbitrator not make any finding regarding all the lost faxes I had reported, both before and during the arbitration process, some of which involved valuable evidence that was somehow lost in Telstra’s network, on route to the arbitrator’s office for assessment by the resource unit and Telstra’s defence unit.

How had the arbitrator not seen through Telstra’s attempt to make me appear as a drunk by saying that my fax problems were caused by alcohol. How was it not obvious to the arbitrator that Telstra wanted the faulty line to be hidden from the resource unit in case they stumbled on the truth that it was Telstra’s lines that were causing the problems?

In 2001, six years after the fact, I received from the TIO’s office a letter Dr Hughes wrote to Warwick Smith on 12 May 1995. In this letter, the arbitrator observes that the arbitration agreement was not a ‘credible’ process to have used in my arbitration. If Warwick Smith had passed this letter on to me at the time I could have challenged the arbitrator’s findings. How could an appeal judge rule against the arbitrator’s own advice to the administrator that the rules of the agreement used in the process ‘had not allowed sufficient time for delays associated with the production of documents, obtaining further particulars and the preparation of technical reports’? It was terribly frustrating to get this documentary support too late

Playing politics

David Hawker, my local federal MP, had supported me, and the issue of rural telecommunication services, since 1992. In 1995, before the Liberal government came into power, he arranged for some of the COT members to meet with the then Shadow Minister for Communications, Senator Richard Alston, in his office in Canberra.

Senator Alston had taken an interest in the COT cases from very early on, and in this meeting, he was supportive of my claims regarding the unethical conduct by various parties associated with the administration of my arbitration, including my claims that Telstra had been listening in to my private phone calls during the arbitration. Senator Alston had been under the same illusions as the COT four that the arbitration would be a non-legalistic and fast-tracked process. He expressed his concern that FOI discovery documents showed that Telstra knowingly used flawed and fabricated test results to support their defence of my claim, and that they had allowed the 10 November 1993 flawed BCI Addendum Report on Cape Bridgewater to remain in the public domain.

After the Coalition victory in 1996 Senator Alston became the Hon. Senator Richard Alston, Minister for Communications and the Arts. At this point his office asked me to supply them with a full report on my claims and the allegations I had made against Telstra over the years, along with any allegations I had about the conduct of the arbitration. I set about producing the report they needed: just to produce a chronological listing of events took 82 pages which I bound into a book, supported with a separate volume of attachments indexed to the main document. A copy of this report was sent to Senator Alston and another to the Commonwealth Ombudsman’s office.

Regrettably, since Senator Alston was appointed to a position which gave him the power to instigate a full inquiry into the many issues raised by the COT cases, nothing more happened in this matter beyond a letter of acknowledgement in September 1996.

The Exicom T200 and beer-in-the-phone reprise

Another FOI document received too late proved that Telstra was aware of the moisture problems associated with the Exicom T200 that resulted in billing faults exactly such as I had experienced, faults that my arbitrator and Telstra refused to address in my arbitration. This same document, an internal memo, suggests that Telstra re-deployed phones they knew were faulty and returned them back into service to other unsuspecting customers, because they would ‘still have to be deployed in areas of lower moisture risk.’ The memo is not dated, but other information in it puts it around 1993–94.

Given that these phones were known to malfunction in moisture-prone areas, I cannot fathom why Telstra thought they would work in a coastal area such as Cape Bridgewater. Or why, when I began to complain of the billing problems they didn’t simply say, ‘Oh, sorry Mr Smith, this is not the right phone for you.’ What a lot of trouble that would have saved.

I wonder how many of these faulty T200 phones are still being used by unsuspecting Telstra customers in places of high moisture content, for instance, fish and chip shops, bakeries, industrial kitchens, or heated swimming pools etc. — and how many of these customers are incorrectly charged for calls they did not receive, as I was for so long.

I also wonder about the legality of redeploying products known to be faulty — though it seems the Telstra Corporation is exempt from the Trade Practices rules covering other corporations and businesses in Australia.

After so many let downs, imagine my happiness when, in November 1995, six months after the arbitrator handed down his award, I received in another bundle of FOI documents, the laboratory reports I mentioned in Chapter Seven, in which Telstra carried out tests on my T200 fax/phone at their laboratory to see how long beer would stay wet inside the phone casing. To read that Telstra laboratory staff themselves had proved that beer could not have stayed wet and sticky for 14 days (the time between the phone leaving my premises and it is arriving at the laboratory) was incredibly exciting.

It was already evening time, but in the heat of the moment, I rang the arbitrator’s home number. His wife answered and told me he was overseas and not due home for some days. Caught on the back foot and thinking it likely the arbitrator had discussed at least some aspects of my arbitration with his wife, I imagined that if she knew who was calling, she might be afraid I was going to be troublesome. On the spur of the moment, I gave her another name, one I knew the arbitrator was familiar with — that of the FHCA project manager. According to my telephone account, this call was made at 8.02 pm on 28 November 1995 and it lasted 28 seconds.

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

The Institute of Arbitrators

Since the TIO would not act, it was time to find some other way of addressing the unethical conduct of Dr Hughes, the arbitrator. On 15 January 1996 I addressed my complaints to Laurie James, President of the Institute of Arbitrators Australia.

I had several complaints regarding the fact that the arbitrator had not operated within the ambit of the Arbitration Act. I provided evidence that the TIO and Telstra had also met in private, without a representative of the COT group, during the planning stages of our arbitration. The arbitrator and his resource unit also met with Telstra in private, before we signed for the arbitration. These meetings broke the rules of arbitration, and we will never know what was discussed in them. We can assume, however, that it was not to the advantage of COT members.

Also, when the TIO and his legal counsel began to pressure the COT four into abandoning the commercial process (the FTSP) and signing for arbitration (the FTAP), no-one informed us that the appointed arbitrator was not graded by the Institute of Arbitrators. I learned this from Mr Nosworthy, President of IAMA in 2001, who told me Dr Hughes was not a graded arbitrator at the time of my arbitration. In fact, while he was engaged with the COT cases, Dr Hughes sat for, but failed, his grading examination. Technically, he was not qualified to handle any arbitration, let alone one that was so complex and far-reaching as ours. This information was relayed to Senator Alston and the TIO, but to no effect, and no-one has yet satisfied me as to why an unqualified arbitrator was chosen to oversee such a vast process and why he was permitted to continue, after failing his examination.

Mr James worked quickly, for on 23 January 1996 Dr Hughes wrote to John Pinnock (the new TIO) under the heading ‘Institute of Arbitrators – Complaint by Alan Smith’ saying:

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

1.      the cost of responding to the allegations

2.      the implications to the arbitration process if I make a full and frank disclosure of the facts to Mr James.

I would give a lot to see what that ‘full and frank disclosure’ might consist of. I couldn’t ask at the time, however, as I did not get a copy of this until 2001. What I did get next was something shocking and upsetting.

In February 1996 I received a letter from the President of the Institute of Arbitrators, Mr Laurie James, with a copy attached of a letter he had received from the TIO. The TIO had written to Mr James to say that my complaints about the arbitrator were ill-founded. The TIO backed up this assertion by relating a very different version of the events I have just described. In his letter, the TIO stated falsely that I had rung the arbitrator’s home at 2 o’clock in the morning. He also told Mr James that I had given a false name.

With its implications that a man who rang anyone at the socially unacceptable time of 2 am was possibly unstable, or a threat to the peace, this seemed like a gratuitous attempt to blacken my name. Why else would the TIO take an innocent incident and try to turn it into something sordid? The TIO is supposed to be unbiased. He must have known that his correspondence would bring my character into question. And if he was prepared to do this in my arbitration, what about the arbitrations still going on for other members of the COT group. Who was he supporting — the Australian public or the telecommunications carriers?

The TIO had also forwarded a copy of this letter to the arbitrator, who would have asked his wife for her version of the incident. I believe that, all things being equal, his wife would confirm that I rang at 8 pm and that I was perfectly polite. But who knows, perhaps the arbitrator and the TIO cooked up the 2 am version between them.

Mr James was not inclined to follow through with my complaint, so the TIO had achieved his aim.

So that was the consequence when I thought I had found dynamite with the confirmation that someone within Telstra had tampered with my Exicom T200 phone and that Telstra staff had perjured themselves in Statutory Declarations defending their beer-in-the-phone story.  

I had thought that anyone interested in justice would feel no option but to review my case. Instead, the person whose position it was to address this, chose instead to try to discredit me. And it was not the only attempt. I am not sure who stooped lower, the TIO or the arbitrator, as the concluding part of this story illustrates.

It was not until 2001, five years after the event, that I received from the TIO, through FOI, a copy of a letter dated 13 February 1996, written by John Rundell of the Technical Resource Unit to Mr Pinnock (TIO), which sheds some light upon the fate of my complaint to the Institute of Arbitrators. This is the story of the second serious attempt to discredit me.

In the letter, Mr Rundell acknowledges that the FHCA financial report was incomplete (‘… the final report did not cover all material and working notes’), but he then goes on to make an astonishing assertion that the Victoria Police Brighton CIB was about to question me in relation to criminal damages to his property.

In fact, the Victoria Police Brighton CIB never considered me a suspect in relation to any crime, and letters held by the TIO’s office confirm this. Nonetheless, John Rundell’s letter to the TIO implied that I was about to be charged for criminal damage. What is more, those false allegations were then sent on to a third party, Dr Hughes (the arbitrator), who then attached a copy of the letter in his response to Mr Laurie James, President of the Institute of Arbitrators Australia, who was investigating my complaints.

At the very least this constitutes massive defamation of character. And it very likely prejudiced Mr James against my case. Of course, I had no idea of the existence of this letter at the time. Over the years since I became aware of this defamation, I have made continuous complaints to the TIO and relevant government ministers. None of this has resulted in any apology or retraction, but that should not surprise the reader.

Senate Estimates

This has been a highly legalistic arbitration: by June 1997, Telstra had paid more than 18 million dollars to defend itself against the COT claimants. What chance did we have when we had to rely on Telstra documents to support our claims and the person in charge of distributing those documents also sat on the council of the TIO?

During question time at a Senate meeting on 24 June 1997, Telstra was questioned regarding its tardy supply of FOI documents to the COTs. By this time the Commonwealth Ombudsman had completed her findings relating to Telstra’s administration of the supply of discovery documents to Ann Garms, Graham Schorer and myself. She found against Telstra. This finding resulted in a Senate review of the cases of Graham and Ann, but not of my case. It has never been explained why I was left out, though it has been suggested that my ongoing phone problems represented a can of worms no-one wanted to open in public.

In this same Senate meeting, the Shadow Minister for Communications, Senator Chris Schacht, raised the issue of the $18 million that Telstra had paid out in legal fees during the COT arbitrations in contrast to the $1.74 million that the COT claimants had collectively received to that point:

The thing that really is annoying is that the lawyers got millions, you paid them millions to go through all this process, and the claimants got $1.7 million — we know who won this case.

… you went through a process of hanging people out to dry for a long time.

Senator Carr, Labor, then said to Telstra’s Graeme Ward:

I have a document here, headed up ‘TELSTRA SECRET’, which suggests that some time ago you were being advised that Mr Smith was likely to secure a substantial payment through a legal arbitration process. Is it not the case that probably it would have been in your commercial interest to have settled long before you did?

Telstra’s Ted Benjamin, who had overseen the COT arbitrations and responsible for supplying us our FOI discovery documents, was also a member of the counsel to the TIO’s office. He replied to Senator Carr:

We could not reach a final settlement with Mr Smith before the matter went to arbitration. It was then taken over by Austel in its investigation into what became the COT Report.

A neat side-step. And the issue was left basically unanswered.

The question of whether Telstra’s withholding of FOI documents was a deliberate ploy occupied a Senate Estimates Committee from September 1997 to January 1999. By that time there were 21 COT cases, and five of these, including Ann Garms and Graham Schorer, were chosen for investigation. If it was found proved with these five that Telstra had acted deliberately such that their arbitrations had been compromised, then it would be assumed true for the remaining COT cases.

On 26 September, the TIO Mr Pinnock was called before the Senate Estimates Committee to answer questions about the conduct of the arbitrations. He made an extraordinary statement:

 … the arbitrator had no control over that process, because it was a process conducted entirely outside the ambit of the arbitration procedures.

This was an incredible reversal from the TIO’s office, and one that should have given me joy. Under oath, he was finally agreeing with what I had been saying for so long.

The Senate investigation proceeded over the next 20 months and delivered a decision that Telstra had indeed deliberately withheld FOI documents to the detriment of the COT claimants. But while this was proved for the five test cases, the decision to pass on the benefits to the remaining COT cases was reversed. The five won a total award of several million dollars between them from this Senate Inquiry, and the other sixteen got nothing.

On 23 March 1999, when this Senate investigation was over, the Chairman of the Committee, Senator Alan Eggleston, made a press release:

A Senate working party delivered a damning report into the COT dispute. The report focussed on the difficulties encountered by COT members as they sought to obtain documents from Telstra. The report found Telstra had deliberately withheld important network documents and/or provided them too late and forced members to proceed with arbitration without the necessary information. Senator Eggleston said: ‘They have defied the Senate working party. Their conduct is to act as a law unto themselves.’

In fact the TIO Board and Council had hidden two important issues from the Senate Estimates Committee: (1) The Board and Council knew that the TIO-appointed Resource Unit also stopped the COT claimants from receiving relevant documents during the arbitration process and (2) The TIO and the defendants (Telstra) let this happen by allowing the Resource Unit to decide which documents they thought were relevant for the arbitrator to view and which they thought should be withheld from the process.

So many people were concerned about what had happened to the remaining sixteen COT cases, at least one Senator showed support. Two Victorian Police officers had acquired in camera Hansard records for 9 July 1998, where it was noted that to award only those five cases under investigation would be an injustice for the remaining sixteen. They gave me a copy of the Hansard pages, which was frustrating as I was unable by law to use the information in them to pursue justice. Indeed, when I tried to use these privileged documents to support my continued request for access to FOI documents, I was threatened twice by Senator Eggleston that if I disclosed the content of these privileged reports I could be held in contempt of the Senate – a two-year jail sentence.

Questions and more questions

There are still many questions I am waiting to be answered by Telstra. The Commonwealth Ombudsman’s office has been attempting to extract replies from Telstra on my behalf, with some success, particularly on the more trivial matters, but more often with no success at all. For a typical instance, early in the arbitration process I had asked, under FOI, to see documents explaining just how the rules of the arbitration had been arrived at, particularly the first draft of these rules. When Ms Philippa Smith, the Ombudsman, relayed this request to Telstra she received the following reply:

Telstra has been unable to locate Mr Black’s further general files which include copies of the correspondence received from Hunt and Hunt in relation to the development of the Fast Track Arbitration Process and I am told that these files, along with other documents, were disposed of by his personal assistant sometime after he left Telstra’s employ.

It seems the more mundane letters can be located but important evidence relating to my arbitration can be lost forever. This missing evidence could well have proved that the so-called ‘independent’ rules which the members of COT signed, were not independent at all.

 

Many documents mysteriously disappeared, and many organisations disassociated themselves from my arbitration over the years. When, in January 1995, I raised the question of the role of the previous President of the Institute of Arbitrators in the drafting of the rules of my arbitration, I was advised by the current President of the Institute that:

The Institute of Arbitrators Australia has absolutely no connection with the arbitration between Telstra and yourself.

Yet the TIO and my arbitrator stated in writing that the President of the Institute (later a County Court judge) in 1994 independently drafted the rules of the arbitration. Who do we believe?

In my case alone, when Telstra listed the documents, they received as part of my claim their list is 43 documents short of the number I forwarded to the arbitrator. Where are these missing documents?

Document (dated 16 May 1994, is a copy of my sworn statement faxed on this day to Detective Superintendent Jeff Penrose of Australian Federal Police (AFP) in which I note:

"At approximately 4.20 pm yesterday, I spoke to Detective Superintendent Jeff Penrose (Federal Police) regarding my concerns about what had taken place.

My purpose for being at Telecom House was that when Telecom had originally supplied the FOI documents, they had somehow failed to supply the adjoining documentation that should have accompanied some of these Fax Header Sheets (fifty-six (56) header sheets in all)

It is now my concerns were justified...and  in the office provided for me, that because much of the FOI documentation was so blanked out that it was hard to march the correct correspondence to the Telecom Header Sheets in question.  

The moment I brought to their attention the irregularities regarding the two faxes in question there was an immediate urgency to terminate my presence, and I was asked to leave at 40.40 pm".

This was the reason I phoned Detective. Superintendent Jeff Penrose of the Australian Federal Police and described the situation to him.  Mr Penrose responded with words to the effect 0that:

‘… it is illegal to destroy documents during a discovery process’ and went on to explain that my attendance at Telstra’s office certainly qualified as an official ‘discovery process’.

 

 

 

 

Chapter 10 and the faults continue

The issues drag interminably on. Are they waiting for me to give up and go away? My faxing problems have never stopped. If documents are sent by courier and don’t arrive, we have recourse through the courier company. If documents sent by fax through Telstra’s network are lost however, it would seem there is no recourse.

The missing faxes

In June 1998 I asked five different businesses to write about the fax problems they encountered with me. Hawker’s Secretarial Service in Portland said, ‘… being the only secretarial service in Portland, my fax machine is a valuable tool in my office and as to date I have never experienced problems with any of my other clients.’ These letters were passed to the TIO’s office. But it is not just the ongoing problem that bothered me. It is the custom I lost.

On 1 July 1998 I wrote to the Deputy TIO, Mr Wally Rothwell regarding faxes that had been ‘lost’ in transit during my arbitration, or which were delivered, but were unreadable. Since the time of my arbitration, I have been trying to get this issue addressed.

I copied on to Mr Rothwell several faxes returned to me from the arbitrator’s office once the arbitration had been completed. These faxes had arrived at the arbitrator’ office as only half pages or as blank pages. There were also bank statements I faxed to Ferrier Hodgson, which arrived at their office with no details showing. I asked the TIO how FHCA could have assessed my financial position correctly when some of the documents I sent them arrived blank. Predictably, there was no response from the TIO.

On 30 July 1998, the Australian Federal Police wrote that they were unable to help me track down my missing faxes, and on 18 August 1998, the Attorney General wrote that he too could not be of assistance. If the Federal Police and the Attorney General’s office are not concerned about the loss of legal documents in transit via a fax machine, then who can help me?

I also wrote to the TIO and the Minister for Communications, asking them to instruct the arbitrator’s office and the TIO’s legal counsel to supply me with a copy of the ‘missing’ claim documents, under the rules of the arbitration which Telstra and I both signed.

Points 6, 7.2 and 25 of the FTAP rules state:

6.    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.

7.2 The Claimant shall within 4 weeks of receipt of written notice from the Administrator pursuant to Clause 5 that he has received completed and signed Request for Arbitration forms send to Telecom and to the Arbitrator in duplicate, its Statement of Claim and any written evidence and submissions (‘the Claim Documents’) in support of that claim.

25   Within 6 weeks of publication of the Arbitrator’s award, all documents received under this Procedure by the parties, the Administrator, the Resource Unit and/or the Arbitrator and all copies thereof, shall be returned to the party who lodged such documents.

If they adhered to the FTAP rules, Telstra and the TIO’s legal counsel should have had copies of everything I sent to the arbitrator, whether I sent it by mail or fax. And according to the same rules, the TIO was bound to instruct Telstra or their legal counsel to supply me with the ‘missing’ documents. The only conclusion I can draw from this is that the TIO must be aware that most of my claim documents never reached Telstra’s defence unit or the legal counsel in the first place and therefore knows it is pointless to direct them to return these documents to me. Very little in the actions of the TIO has reassured me or the other members of COT as to the capacity for impartiality of that office in its role as standing between us and Telstra.

On 26 February 1999, I sent three faxes to COT member, Graham Schorer: the first and third of these arrived at Graham’s office as intended but the second did not. Graham’s fax journal shows the two faxes which were received, marked with an arrow. According to my Telstra account, I was duly charged for the long-distance transmission of all three. If I hadn’t happened to phone Graham to discuss the document which didn’t arrive, we might never have discovered it had ‘gone walkabout’ between our faxes. Now most people would accept a single incident like this as just a ‘blip’ in the system. Unfortunately, this has happened on too many occasions, and it was happening back in 1994 over the months during which I was lodging my claim with the arbitrator.

We also must wonder how many other similar occurrences have not been noticed over the years and how many individuals or businesspeople send faxes and never discover that they didn’t arrive at their intended destination and so happily pay their Telstra accounts.

Still trying to get my original claims addressed

On 17 February 1998, I sent the TIO a bound submission detailing my continued and ongoing incorrect charging by Telstra. The submission started with the beginning of my arbitration and included copies of pages of the transcript of the oral hearing conducted on 11 October 1994 with Telstra, the arbitrator and myself, and a representative of the TIO, showing that my claim documents relating to incorrect charging were accepted into the arbitration procedure. There were several pages explaining the significance of the material I was submitting, so many that, on page 94, the arbitrator is reported as stating during the oral hearing, ‘I don’t think we need any further examples.’

Yet even with this mountain of evidence the TIO still stated that the problem began only ‘at a late stage of the arbitration process.’ It’s as if it would stick in his throat to present my case on its own terms, impartially. On the positive side, the TIO did respond. He asked Telstra whether they agreed ‘that this matter was not addressed’ in my arbitration. Wake up! I felt like yelling, not for the first time. Of course, at the time of writing this, I have yet to receive Telstra’s response. I’m not holding my breath. I can only suppose that a judgement against Telstra in the matter of incorrectly charging their customers on a regular basis would set a dangerous precedent. I pay the price, while Telstra avoids facing the issue at all costs. And behind Telstra stands the TIO, and Austel, and the government.

In 1998 I also sent the transcript of the 1994 oral hearing to the TIO and the Minister for Justice, alerting them to how, at that time at least, the arbitrator agreed to address Telstra’s tapping of my phone lines and listening to my private phone calls during the arbitration procedure.

Arbitrator to Smith: ‘... effectively any reference in your claim documents to date regarding unlawful phone tapping will be treated by me and the resource unit as unsubstantiated and therefore not relevant for the purpose of determining whether you’re entitled to compensation.’

Me: ‘No, I will leave it in the claim because —’

Arbitrator: ‘You understand if you leave it in your claim, Telecom is entitled to ask what the basis for this allegation is?’

Me: ‘Right, okay, yes, all right.

Arbitrator: ‘So you want to leave the allegation in?

Me: ‘I will leave the allegation in.

But these claims were not addressed, either in my award, or by the TIO, or indeed by the Minister.

If Telstra is allowed to get away with eavesdropping on businesses while it is government owned, then what does the future hold for Australia once it is completely privatised, with no government control at all? Even now, how many other businesses are having their private matters watched? How many overseas investors are being ‘bugged’ without their knowledge? How many businesses fighting a take-over bid have their private information passed around to whoever might benefit from a bit of inside knowledge? How many faxes are copied to someone other than the intended recipient?

An article on electronic security in the Melbourne Age of 10 October 1998 reported that it was possible for anyone with access to Telstra’s network to monitor faxes as they are sent and to keep copies without the sender’s knowledge. This article also pointed out that telephone operators can eavesdrop on calls and Telstra can access all calls, though this is supposed to be under strict controls.

After three more years of telephone complaints after my award was handed down — of line-locks, deadline problems, missing faxes and the 1800 billing problems — Telstra finally sent two representatives to see me at Cape Bridgewater on 14 January 1998. By this time, I had put together a mass of evidence consisting largely of Telstra’s own data and my itemised accounts. The two Telstra representatives explained they were liaising with the TIO’s office regarding my complaint that my arbitration had not addressed several issues raised in my original Letter of Claim. They considered my evidence sound and took it away with them. In their notes of this meeting, they said:

… Mr Smith produced various printouts of CCAS data in comparison with his Telstra accounts. In many instances the calls add up however, in some cases there appeared to be differences in the duration of the call time. I note that the examples given by Mr Smith at the meeting spanned the period of the Arbitration and after the conclusion of the Arbitration.

Senator Alston wrote to David Hawker my Member of Parliament on 27 February 1998 and again on 29 May 1998 telling him that Telstra was examining the documentation with a view to resolving my concerns. Things were looking promising, I thought.

Then in a letter dated 9 June 1998, the Deputy TIO referred to an intended meeting with the arbitrator, to ‘clarify whether he did consider the 1800 issue during the arbitration.’ Pay attention, I felt like shouting. There had never been any doubt about this. A 15 November 1995 letter from the TIO-appointed Arbitration Project Manager to the TIO was quite clear that NONE of the billing issues, including the 1800 issues, were ever investigated during my arbitration. And on 3 October 1995 Austel wrote to Telstra, with a copy to the TIO, asking why the billing issues I raised during my arbitration had NOT been addressed

In July 1998 seven letters passed between the TIO office and me, all proving that many of my claim documents which my Telstra account shows were faxed to the arbitrator’s office in 1994–95 had either not arrived or had arrived in a damaged state. Yet on 25 August 1998, Mr Pinnock (TIO) wrote to me:

The only issues that I am considering, as the former Administrator of your arbitration, are the alleged overcharging for your 1800 service and matters pertaining to your Gold Phone service, and whether they were considered in the final award.

There is no mention of my complaints of lost faxes, not even an explanation of why he is not considering them. I must wonder, is there some reason behind this omission? My submission was very clear about the importance of the issue of the lost faxes. Why was he avoiding it? Mind you, nor did he address the issues he said he was considering.

In June 1996 I had written to advise the TIO that four 1800 billing claim letters addressed to the arbitrator had not been provided to me during my arbitration. On 2 August 1996, in response to that letter the Resource Unit admitted to the TIO and the arbitrator that they had indeed withheld these letters. In 2002 I received back a copy of my letter to the TIO dated 26 June 1996 and found that the TIO had added a handwritten note at the bottom of this letter, 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.

I have sent some sixty to seventy letters to the TIO since 1996, asking his office to follow up on these ‘serious allegations’ (which are in fact not allegations, but the truth). The TIO’s office has refused bluntly, and reminds me that if I am not satisfied, I can take them and the arbitrator to court, aware that I do not have that sort of money.

I call this criminal collusion. What is more, as I have already shown, Austel and the TIO allowed Telstra to secretly address these same four 1800 billing documents in October 1995, five months after the end of my arbitration. Had the TIO and the defendants concocted some deal so these billing documents could be hidden from the arbitrator and me? And why? So that Telstra could address them outside of the arbitration, compromising my legal right to challenge Telstra’s defence of these documents.

Telstra’s CEO, Frank Blount, admitted the breadth of this 1800 billing problem in his 1999 book Managing in Australia. Not only the billing, but most aspects of the performance of the 1800 ‘product’ were, as the book notes, ‘sub-standard’, and Blount’s response, when apprised of this, was one of ‘shock’.

And Telstra management certainly knew these four years earlier when they knowingly supplied the government regulator with grossly inaccurate information in my arbitration, and indeed when the Resource Unit’s technical consultants refused to investigate the evidence regarding my 1800 line.

Finally, I have had enough

In June 2001 I put the business up for sale and in December that year Darren Lewis took possession. Cathy and I kept the property next door. I believed that the problems with Telstra had become a personal vendetta and that they would disappear when I was no longer involved. Alas, that was not the case.

From March 2002, Darren Lewis wrote numerous letters to the TIO, complaining of fax related problems of a similar nature to those I had suffered. Mr Lewis received the support of the Hon David Hawker, who wrote to him in October 2002:

Given the serious communications problems encountered by the former proprietor of your business (Mr Alan Smith), I intend to make representations on your behalf directly to the Federal Minister for Communications and Information Technology.

In November 2002 the Channel 9 Sunday Program featured the camp in a story on various COT cases and Telstra. Following the program, I received a letter from a Barry Sullivan:

After viewing the Sunday programme, I realise the similarities your business and others had with Telstra ten years ago with the similarities our building business had, when we lived at Bridgewater. During a period between the late 1980s and early 1990s we had considerable amount of difficulty with our phone. Our phone problem had such a negative effect on our building business over a period that our work dried up.

I had not come across Barry Sullivan’s case during the time of my arbitration. In fact, Austel had passed on to Telstra information regarding other Cape Bridgewater residents who were experiencing ongoing telephone problems like the ones I had experienced but kept this information from me (and presumably the arbitrator) during my arbitration. By the new millennium though, the issue was well and truly public. Under the headline ‘Plans afoot to attract tourists’ the Portland Observer wrote on 8 August 2003:

The Cape Bridgewater Tourist Association is planning a major swimming event each New Year’s Day in a bid to attract tourists to the area. At their meeting on Tuesday, association members also expressed continuing problems with the telecommunications into the area.

One operator Denis Carr said he had been told Telstra was rectifying the problem.

I hope he wasn’t holding his breath.

Meanwhile, things were not improving for Darren Lewis. In November 2002 an article in the Portland Observer noted:

The telecommunications problems which plagued former Cape Bridgewater Holiday Camp operator Alan Smith have continued to beset current owner Darren Lewis. Mr Smith is a founding member of the Casualties of Telstra. Mr Lewis said this week he had experienced several problems with the phone and fax service since taking over the Cape Bridgewater Holiday Camp last year.

‘Telstra admits there is a fault and they are trying hard to solve it,’ he said.

But in January 2003, Darren Lewis was obliged to write to the TIO John Pinnock:

As well as speaking to David Hawker’s representative this morning, I also had a disturbing discussion with Tony Watson, the Telstra fault technician assigned to my case. Mr Watson informed me (in a roundabout way) that he is reluctant to supply me with any more information in relation to our phone faults because he knows I am in contact with Alan Smith, the previous owner of the business.

Was Telstra afraid I might attempt to reopen my arbitration? Or was Mr Watson still holding a grudge against me because of something that was supposed to have been addressed in my arbitration nine years before? Either way, it is outrageous that Darren Lewis had to suffer such treatment — and that such treatment is basically endorsed by the government, which refuses to confront Telstra.

Back to the politicians

In 2002 there was another attempt to initiate a government investigation into the travesties around the COT arbitration cases, this time by Senator Len Harris of Queensland, who wanted to see justice for the sixteen COT cases who missed out following the Senate Inquiry. The Senator was advised the government would investigate those cases he had raised, but no investigation ever took place. The same issues were raised again, three years later, by the newly elected National Party Senator, Barnaby Joyce, who had just toppled Senator Harris for the same Senate ticket. Both Senators, representing two different parties, felt strongly about the denial of natural justice in the COT cases and were determined to redress it.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Chapter 11 Summing up the years

There is something in me that won’t let me walk away, that won’t accept defeat. For several years after my ‘award’ was handed down, I continued to make my case against the issues in my arbitration that were never addressed by the arbitrator; in every case to no avail.

Over the same years, the COT members have sent updated information supporting our various claims to all the appropriate government agencies, officials, politicians and senators. I have provided documented proof, again, that my arbitration was not carried out according to the principles of natural justice. In 2014, I briefed the Hon. Tony Abbott, Prime Minister, the Hon. Malcolm Turnbull, Minister for Communications.

I have twice gone to the Administrative Appeals Tribunal seeking documents I had been promised for my arbitration, with limited success.

Three times I have complained to the Institute of Arbitrators. The first I have already described in Chapter 9. Then in 2001 the Institute agreed to investigate fresh evidence. This was the time Mr Nosworthy informed me the arbitrator was not qualified during my arbitration. Despite this, the Institute found there was no case to answer. Finally in July 2009, the Institute of Arbitrators Mediators Australia (IAMA), again agreed to investigate further fresh evidence. Among other items of evidence, I submitted the words of the TIO at the Senate Estimates Committee, that the ‘process conducted entirely outside the ambit of the arbitration procedure.

In October 2009, I sent the IAMA further evidence from forensic technical consultants attesting that someone with access to Telstra’s network had been screening and intercepting claim documents pertaining to at least four separate COT arbitrations. This material showed that for at least seven years after my arbitration was concluded someone was screening and intercepting faxed documents leaving my residence and my business before redirecting that information on to its intended destination. The arbitrator had officially agreed to address this issue of interception, but he did not. Under the terms of arbitration, he was legally bound to provide findings on all materials, but he made no reference to interception at all. This was clearly a matter for the IAMA. But their response when I proffered the supporting documentation was less than enthusiastic:

Presently, IAMA does not require this further documentation to be sent. However, the investigating persons will be notified of these documents and may request them later 

No one has requested them.

I have had to ask myself, is it only me who sees the enormity of this interception of confidential, arbitration-related documents? Is it only me who is bothered about how many other Australian arbitration processes may be subject to this type of hacking, secretly and illegally screening documents before they arrive at their intended destination?

But I am not alone. One of the two forensic technical consultants attesting to the validity of their findings in that report, wrote to me on 17 December 2014:

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.

The last I heard from the IAMA Ethics and Professional Affairs Committee was on 11 November 2013. Despite their agreement to investigate, they refused to hand down any findings. I have asked them on many occasions and their refusal is implacable.

I went to the TIO to complain, but his response was brusque: ‘Your arbitration is over.’

One bright note did follow from the AFP investigation into the COT cases. Even though I was unable to benefit from their work, when the AFP reported to the Minister that COT claimants’ phone conversations had been intercepted, this led to amendments in the Telecommunications Interception Act in 1995, aimed at protecting users’ privacy.

So, it is true, my arbitration is over. Even so, I am still hopeful for justice from a system that promised to give it to us. Warrick Smith, when he was the TIO, exercised no duty of care for COT members, but appeared always to act in favour of Telstra, from the moment he forced the four original COT claimants to abandon the commercial assessment process for a costly and legalistic arbitration procedure presided over by an unqualified arbitrator.

We COT members feel we have been let down by every government office we have approached for help in the face of a stonewalling Telstra and an uncooperative TIO. It is as if we are too small fry. Our problems don’t matter. We may receive replies from the relevant minister or department, but there is no follow up, no teeth in them. Only the Commonwealth Ombudsman has consistently performed its role in accordance with the principles of what is lawful and just. Ministers when in Opposition are helpful, but once they are in government, we become non grata again.

When I look back over the years since my ‘award’ was handed down I recall many moments when I contemplated giving up the fight. But how could I when the ‘award’ left out, ignored or dismissed so much? When the terms of the ‘award’ were based on fabrications and lies as blatant and easily uncovered as saying tourism numbers in my region had dropped over the period of my claim, when all the statistics showed an increase. When the chairman of Austel promised us, consequential losses would be included in any awards made, but this did not happen? How could I after all the financial loss involved in preparing my case, and the business I lost, so that I was forced to re-mortgage three times just to stay in the fight to bring these matters to the attention of the Australian public and the communications minister?

If Telstra had addressed the issues of lost faxes and eavesdropping, I would probably have accepted the award — indeed, if the arbitrator had addressed the issue of lost faxes and eavesdropping, I would probably have accepted, albeit reluctantly. If the arbitrator had addressed the incorrect charging I would have accepted. And if the arbitrator had raised the issue of Telstra using falsified and impracticable documents as part of their defence, I would not have questioned his integrity. If he had been appropriately qualified, I would have had more grounds for confidence in him. As it is, on so many grounds outlined in this book, the arbitrator was far from impartial and therefore not an independent adjudicator in my arbitration. But on all these issues my claims were effectively silenced — by being ignored.

 

Summary

On 20 September 1995, four months after the arbitrator prematurely brought down his findings on my matters, and fully aware I was denied all necessary documents to mount my case against Telstra, an emotional Senator Ron Boswell discussed the injustices the four original COT claimants (i.e., Ann Garms, Maureen Gillan, Graham Schorer and me) experienced prior and during our arbitrations. He said:

Eleven years after their first complaints to Telstra, where are they now? They are acknowledged as the motivators of Telecom’s customer complaint reforms. … But, as individuals, they have been beaten both emotionally and financially through an 11-year battle with Telstra. …

Then followed the Federal Police investigation into Telecom’s monitoring of COT case services. The Federal Police also found there was a prima facie case to institute proceedings against Telecom but the DPP , in a terse advice, recommended against proceeding. …

Once again, the only relief COT members received was to become the catalyst for Telecom to introduce a revised privacy and protection policy. Despite the strong evidence against Telecom, they still received no justice at all. …

These COT members have been forced to go to the Commonwealth Ombudsman to force Telecom to comply with the law. Not only were they being denied all necessary documents to mount their case against Telecom, causing much delay, but they were denied access to documents that could have influenced them when negotiating the arbitration rules, and even in whether to enter arbitration at all. …

Telecom has treated the Parliament with contempt. No government monopoly should be allowed to trample over the rights of individual Australians, such as has happened here.

On 27 January 1999, more than four years after Telstra committed these offences, I received a letter from Senator Kim Carr advising:

I continue to maintain a strong interest in your case along with those of your fellow ‘Casualties of Telstra’. The appalling way you have been treated by Telstra is reason to pursue the issues but also confirms my strongly held belief in the need for Telstra to remain firmly in public ownership and subject to public and parliamentary scrutiny and accountability.

Your manuscript demonstrates quite clearly how Telstra has been prepared to infringe upon the civil liberties of Australian citizens in a manner that is most disturbing and unacceptable

Senator Kim Carr again criticised the handling of the COT arbitrations on 11 March 1999 as the following Hansard link shows. Addressing the government’s lack of power, Senator Carr stated:

What I do make a comment on is the question of civil liberties and the rights of citizens to approach this parliament and seek redress for their grievances when corporate power, particularly in a publicly owned corporation, has been abused. And there can be no question that that is what is at the heart of this issue.

And addressing Telstra’s conduct, he stated:

But we also know, in the way in which telephone lines were tapped, in the way in which there have been various abuses of this parliament by Telstra—and misleading and deceptive conduct to this parliament itself, similar to the way they have treated citizens—that there has of course been quite a deliberate campaign within Telstra management to undermine attempts to resolve this question in a reasonable way. We have now seen $24 million of moneys being used to crush these people. It has gone on long enough, and simply we cannot allow it to continue. The attempt made last year, in terms of the annual report, when Telstra erroneously suggested that these matters—the CoT cases—had been settled demonstrates that this process of deceptive conduct has continued for far too long.

The Senate Hansard of 11 March 1999 includes further quotes confirming just how scathingly critical several Senators were in relation to the way Telstra ran the COT arbitrations, and not the arbitrator Dr Hughes even going so far as to note that it was “a process subject to unilateral amendment by Telstra”. That the committee was able to state Telstra used their “unilateral” control of the arbitration process to avoid supplying the promised documents shows the arbitration process failed the COT cases.

Senator Schacht was possibly more vocal when he stated:

I rise to speak to this statement tabled today from the working party of the Senate Environment Communications, Information Technology and the Arts Legislation Committee—a committee I served on in the last parliament—that dealt with the bulk of this issue of the CoT cases. In my time in this parliament, I have never seen a sorrier episode involving a public instrumentality and the way it treated citizens in Australia. I agree with all the strong points made by my colleagues on both sides who have spoken before me on this debate. What was interesting about the Senate committee investigating this matter over the last couple of years was that it was absolutely Tri partisan—whether you were Labor, Liberal or National Party, we all agreed that something was rotten inside Telstra in the way it handled the so-called CoT cases for so long. The outcome here today is sad. There is no victory for citizens who have been harshly dealt with by Telstra.

Senator Mark Bishop's statement shown below also notes.

Significant issues do arise. I think it is appropriate to refer to the final paragraphs of the committee report. In the second to last paragraph, the report of the committee tabled by Senator Eggleston says:

Estimates of Telstra's costs in relation to the Cot’s issue since the claims were made exceed $20 million ($14.285 million to 1997 and rising). Most of the expenditure has been spent, not on settlement but on administrative and legal costs. It became quite clear early in the process that the claimants had in fact been disadvantaged by malfunctions in their telephone system. It is difficult to understand why Telstra appeared to prefer to deny that there was a problem and then prolonged the difficulties in establishing the extent of that problem.

The final sentence reads:

In the Committee's view, Telstra should now seek to reach a negotiated agreement with the interested parties.

If fault is to be allocated at this very early stage of the final lap, that fault lies at the door of Telstra. It really is appropriate for Telstra, a $100 billion corporation, to stop using its monopoly power, to stop retaining the services of dozens of highly paid solicitors and to come to the table and to seek to reach a negotiated agreement with these four or five persons. It is simply outrageous that Telstra, which is still a public corporation, can spend something in the order of $20 million - Senator Boswell - Some $24 million.

I am informed by Senator Boswell it is 24 million - defending a claim when the claim before it is somewhere between $2 million or $4 million. This is simply an outrageous proposition and a waste of public money.

At a press conference on 26 July 2002, Senator Harris aimed questions at the chief of staff to the Hon Senator Richard Alston, Minister for Communications. He asked:

 “Through the following questions, the media event will address serious issues related to Telstra’s unlawful withholding of documents from claimants, during litigation.

Why didn’t the present government correctly address Telstra’s serious and unlawful conduct of withholding discovery and/or Freedom of Information (FOI) documents before the T2 float?

Why has the Federal government allowed five Australians (from a list of twenty-one) to be granted access to some of the Telstra discovery documents they needed to support their claims against Telstra, but denied the same rights to the other sixteen?

Why has the Federal Government ignored clear evidence that Telstra withheld many documents from a claimant during litigation?

Why has the Federal Government ignored evidence that, among those documents Telstra did supply, many were altered or delivered with sections illegally blanked out?” 

In 2015, after putting several of my documents up on my LinkedIn site, several offshore lawyers emailed me to express their shock and disbelief in relation to my situation.  One of them, a lawyer practising in the Egyptian Court in Cairo, said that he would be willing to provide his legal opinion regarding six separate areas where he believed the arbitration process had failed the first four COT claimants and so, with his permission, I then sent a copy of his two-page document to the Australian Federal Police, along with his name, although I decided not to publish his name on the website.  Since then, he has notified me that I can now identify him in any manuscript I might prepare regarding the first four COT arbitrations, and I can also explain his reasons for believing that the arbitration process failed the COTs.

So, on one hand, we have two Australian Government investigations and one IAMA investigation that have all apparently ended, but not one of those three will hand down a finding.  On the other hand, an Egyptian legal advisor on LinkedIn clearly sees injustices that he is prepared to put his name to, if or when I publish my manuscript “Ring for Justice.”

The legal advice received from Alaa, my Egyptian lawyer LinkedIn contact concerning the unethical way in which he notes my arbitration was conducted has been provided to the Australian Federal Police as a testament at what Alaa sees as an injustice.

 

 

 

Chapter 12 Addendum - One