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Chapter 6 - Kangaroo Court

PLEASE NOTE: as of 23 June 2022 this webpage is curretly being edited for type errors and should be completed by miday Australian time on 25 June 2022:- thank you 

 

The statement made on  Kangaroo court - Wikipedia"A kangaroo court is often held to give the appearance of a fair and just trial, even though the verdict has in reality already been decided before the trial has begun",  is exactly what happened during the various COT arbitrations i.e. the arbitrator and administrator collaborated with the defendants (Telstra), regardless of their unlawful conduct against the COT Cases. Was this the style of arbitration that Julian Assange was warning the COT Cases they were now in?  

the appearance of a fair and just trial

Kangaroo - Court

And so the arbitration saga begins.

Please note: this Chapter, Kangaroo Court, had been taken from an extensive set of facts a manuscript I am currently preparing which is in point format so that the content can be turned into a documentary telling the story of the way it happened and that a very young man called Julian Assange tried to stop it happening but those in the tale disregarding Julian's concerns. 

Before commencing with this part of the story, it is essential to note that during the COT arbitrations, Telstra's Frank Blount CEO was aware that my claims of 008/1800 free call billing problems were genuine, and yet he allowed Telstra to submit to the government false information about my claims in secret without me and the arbitrator being present. This disallowed me my legal right to challenge. This also disallowed the arbitrator a chance to value this part of my claim in his official findings. 

When Julian Assange told COT Case spokesperson Graham Schorer that other than Telstra were conspiring against the COT Cases, did he mean the government regulator was to address the more adverse findings against Telstra in secret or was there other forces at work who derailed the COT Cases arbitrations?  

The evidence that the Australian Communications Authority AUSTEL (now ACMA) had secretly allowed Telstra to address my 008/1800 arbitration billing documents on 16 October 1995 (five months after the conclusion of my arbitration) thus denying me my legal right of reply can be obtained from clicking onto Absent Justice Part 2 - Chapter 14 - Was it Legal or Illegal?

One of the letters attached to this secret event, dated 4 October 1994, (see Absent Justice Part 2 - Chapter 14 - Was it Legal or Illegal?) demands answers from Telstra during my arbitration (see Open letter File No/46-A to 46-l) and another letter, dated 2 August 1996. These letters show AUSTEL was very concerned that it appeared there was a systemic billing problem still in existence within Telstra’s network (see Arbitrator File No/115). Will the Australian public ever know how much extra revenue Telstra made during the period in which this systemic billing problem existed in their network after the arbitrator disallowed his technical consultants the extra weeks they stated they neeed to fully investigate my 008/1800 problems? (see Criminal Conduct Prologue - Chapter 1 - The collusion continues.

Another one of these letters dated 16 October 1995  (five months after my 008/1800 billing claim documents were not investigated as they should have been as part of the arbitration procedure) Open letter File No/46-A to 46-l prove AUSTEL allowed Telstra to address these same arbitration 008/1800 arbitration fault records in secret outside of the arbitration arena thus denying me my legal right of reply (see Absent Justice Part 2 - Chapter 14 - Was it Legal or Illegal?) 

How can AUSTEL (now the ACMA) continue to state that they are independent of Telstra and did not compromise my position? How can one side to an arbitration be allowed to secretly submit information to a government regulator and not the official  appointed arbitrator where the government regulator makes the finding and not the arbitrator? Why was I disallowed my legal right of reply to Telstra's 16 October 1995 submission? A submission which does not match the findings of Telstra's own CEO on pages 132 and 133 in his publication Managing in Australia (See File 122-i - CAV Exhibit 92 to 127) discussed below.

The following link Evidence - C A V Part 1, 2 and 3 -Chapter 4 - Fast Track Arbitration Procedure confirms Frank Blount, Telstra’s CEO, after leaving Telstra in he co-published a manuscript in 1999. entitled, Managing in Australia. On pages 132 and 133, the author exposes the problems Telstra were hiding from their 1800 customers:

  • “Blount was shocked, but his anxiety level continued to rise when he discovered this wasn’t an isolated problem. 
  • The picture that emerged made it crystal clear that performance was sub-standard.” (See File 122-i CAV Exhibit 92 to 127)

Frank Blount's Managing Australia https://www.qbd.com.au › managing-in-australia › fran can still be purchased online. 

It was these types of arbitration issues that appear to have prompted Julian Assange to warn the COT Cases that our arbitrations were not going to be run according to the rule of law.

For reasons known only to the Hon Barnaby Joyce, his support to have the government explain why the COT Cases were treated so undemocratically prior to and during their arbitrations faded not long after he first became Australia’s, Deputy Prime Minister

After the release of Frank Blount's Managing in Australia in 2000, the government regulator AUSTEL should have demanded the Telstra board explain why Telstra misled AUSTEL on 16 October 1995, when they secretly addressed my arbitration billing documents without either the arbitrator or I present shows just what it is like being a particpant in a Kangaroo court style action. 

Don't Shoot The  Messenger

Absent Justice - Don+39t shoot the messenger

The truth is revealed 

For these chapters, I will refer to myself by the name Alan Smith.  

Accessing the evidence

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

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

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

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

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

30th September 1994:  Warwick Smith writes to Graham Schorer, stating:-

“Telecom have changed some of the management team for the COT process. Today I asked Mr Ted Benjamin to accompany me to briefly meet Dr Hughes formally. Yesterday Mr Benjamin, in my presence, received an overview of the current position from Mr Peter Bartlett and Ms Di Mattina. … At this critical stage the impact of such a change needs to be minimal and advantage the process. I hope this will be the case.” (GS-CAV Exhibit 155 to 215 - See GS-CAV 204)

This letter does not advise Graham that Mr Benjamin has been a TIO Council member since June 1993.  This letter shows, once again, an illicit meeting of parties involved in the COT arbitration, without any COTs or their representatives being present.  Of interest, contrast these meetings with Dr Hughes’ statement to Mr James, President of the Institute of Arbitrators Australia, on 16 February 1996:-

“Mr Smith’s assertion … that a technical expert, Mr Read, refused to discuss technical information at his premises …is correct – in this regard, Mr Read was acting in accordance with his interpretation of my direction which prohibited him from speaking to one party in the absence of the other party…” (AS-CAV Exhibits 495 to 541 - See AS-CAV 503)

Was there one rule for the complainants and another for the defendants?

Absent Justice - Government

A SVT process that never commensed 

2nd October 1994:  Alan complains to Ted Benjamin about the deficient SVTs conducted at his premises.  On 6th October 1994, Telstra writes to Dr Hughes, asking him to order Alan to comply with their interrogatories and

“direct the claimant to provide Telecom, on or before 20th October 1994, with the particulars set out in Schedule 1 of this letter, and the documents set out in Schedule 2 of this letter”.

But some of the documents they were seeking could only be supplied by Telstra themselves, under one of the many FOI requests which they had not yet complied with!

Letters exchanged between Dr Hughes and Telstra, on 15th and 21st July, and 16th August 1994 together with two letters on 25th August 1994 (five letters in all) show Dr Hughes was well aware Telstra admitted some of the information Alan was seeking was stored in their archives.  Why didn’t Dr Hughes order Telstra to produce these documents so Alan could complete his claim?  Why was Dr Hughes not concerned about the copied 2nd October 1994 letter condemning the SVT process?  Who was protecting Alan’s rights?

How could Alan reply properly to Telstra’s interrogatories and complete the final presentation of his claim, when the arbitrator had not accessed the information Alan required, despite promising to do so on 17th February 1994?

By the end of August 1994, Alan suspected Paul Rumble’s threat of withholding FOI documents, if Alan assisted the AFP, was being played out.  What was really behind Telstra’s reluctance to supply the documents Alan needed? – was this anything to do with his previous contact with the AFP?

The transcript of a second interview with the AFP on 26th September 1994 confirms Telstra records, held by the AFP, proved Telstra was indeed bugging Alan’s phones. Was Telstra retaliating because Alan dobbed in Paul Rumble?

3rd October 1994:  Graham Schorer drafts a response to Warwick Smith’s letter of 30th September 1994 (above).  Graham’s solicitor, William Hunt, advises Graham to edit it before sending it because of the risk of being accused of slander, by Mr Benjamin, Mr Rumble or Ms Geary.  The letter was finally reduced to two pages and faxed to Warwick Smith on 5th October, with copies also going to Telstra’s CEO (Frank Blount), the TIO’s Legal Counsels (Peter Bartlett and Pia Di Mattina), the Arbitration Project Manager (John Rundell) and the Arbitrator (Dr Gordon Hughes).

Even after William Hunt’s advice, Graham’s letter still condemned Mr Rumble’s actions:-

“Mr Rumble’s conduct and treatment towards the CoT Members involved or attempting to become involved in the arbitration process, in the opinion of the individual C.o.T. Case Members, failed to meet the minimum standards of conduct regarding adequacy, reasonableness and fairness.”

“It should be noted that Mr Rumble performed his duties under the directions of the senior Telecom Group General Manger of Customer Affairs controlling the whole unit that directly interfaces with CoT Members, Mr Black.” (GS-CAV Exhibit 155 to 215 - See GS-CAV 204-B)

Graham was already in receipt of a previous letter, dated 4th July 1994 from Alan Smith to Paul Rumble (copied to the AFP, Dr Hughes and Warwick Smith) in which Alan raised concerns regarding Mr Rumble threatening Alan into promising not to provide FOI documents to the AFP.  Mr Rumble implied that continuing to provide information to the AFP would result in Telstra stopping the supply of the FOI documents Alan needed to support his claim.  Alan’s claim was never investigated. The Alan Smith CAV Chronology LGE file, and supporting documents including a copy of the transcript of the AFP interview with Alan on 26th September 1994 reveal the AFP’s clear concern regarding Mr Rumble’s threats.  Exhibit GS-CAV Exhibit 258 to 323 (- See GS-CAV 204-C) contains page 180 from Senate Hansard records for 29th November, 1994 and records Senator Boswell asking Telstra:-

“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 investigation?”

In Graham’s letter of 3rd October 1994, Graham also raises Steve Black’s involvement in the matters discussed, as Mr Rumble answered to Mr Black.  Further, on 13th October 1994 (see below), a Telstra whistleblower identifies Steve Black as one of the culprits attempting to minimise Telstra’s liability by altering information on FOI documents legally requested by various COT claimants.  This accusation further supported Graham’s claims regarding Mr Black as well as Graham’s challenge of the appointment of Ted Benjamin to replace Mr Rumble as Telstra’s Arbitration Liaison Officer.  Graham did not know Mr Benjamin was already a TIO Council member, and, as shown above, on 30th November 1993 provided confidential TIO council COT-related information to Telstra’s hierarchy after attending a TIO Council meeting.

Also noted above, Dr Hughes, Peter Bartlett and John Rundell, all received a copy of Graham’s October 1994 letter to Warwick Smith, therefore all four were a party to Graham’s concerns, yet nothing was done.  Later, Mr Rundell wrote to Warwick Smith (18th April 1995) copying to Dr Hughes and Peter Bartlett, alerting, “It is unfortunate that there have been forces at work collectively beyond our reasonable control that have delayed us undertaking our work.”  Even more amazing – Dr Hughes also wrote to Warwick Smith (12th May, 1995) and declared the Arbitration Agreement to be not “a credible process”.

Did the Paul Rumble/AFP issue stop the arbitration process?  NO.

Did the allegations of Steve Black and Rod Pollock tampering with documents initiate an investigation into the arbitration process?  NO.

Did the “forces at work” letter result in the arbitration process being postponed until the matter could be investigated?  NO.

Did Dr Hughes’ letter declaring the Arbitration Agreement to be not credible stop the arbitration process?  NO.

All this indicates that, in his letter to Warwick Smith, Graham was obviously correct to challenge Paul Rumble and the appointment of Ted Benjamin.

When Warwick Smith and Dr Hughes failed to investigate and demand answers from Paul Rumble, on 29 November 1994 (one month later) Senator Ron Boswell noted:

The Paul Rumble saga continues 

Absent Justice - My Story - Senator Ron Boswell

Threats  

Page 180 ERC&A, from the official Australian Senate Hansard, dated 29 November 1994, reports Senator Ron Boswell asking 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 investigation?”

After receiving a hollow response from Telstra, which the senator, the AFP and Alan Smith all knew was utterly false, the senator states:

“…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?” (See Senate Evidence File No 31)

Thus, the threats and bullying tactics used by Telstra, and later the government became a reality. What is so appalling about these threats including the withholding of relevant documents so that the claimants could not prove their claims of ongoing telephone faults and harrasment is that no one in Telstra, the government who still owned Telstra then would transparently investigated the disastrous impact this had on Alan Smith's overall submission to the arbitrator. The arbitrator and the government should have initiated an investigation into why an Australian citizen, who assisted the Australian Federal Police in their investigations into unauthorised interception of Alan Smith's telephone conversations and arbitration related faxes, was so severely disadvantaged during a civil arbitration.

It was Alan Smith who advised Graham Schorer not to take the Arbitration File that the hackers (Julian Assange) had been offering, and it was Alan Smith who was now suffering the consequences of that decision.

Steve Black writes to Graham stating:-

“Subject to the confirmation of the consent and availability of the Arbitrator I confirm my agreement to meet with him, Mr Smith, Mrs Garms and yourself on Wednesday 5 October 1994, or such other date as the Arbitrator is available. …”

“The purpose of the meeting is to address the means by which these Arbitrations may be progressed promptly. In particularly the meeting will focus on issues relating to the production of documents both by Telecom and between the parties.” (GS-CAV Exhibit 155 to 215 - See GS-CAV 205)

Even though Graham Schorer and Alan Smith continued to raise the production of document issues with Dr Hughes from February 1994, the meeting of 5th October 1994 never took place.  In Dr Hughes’ letter to Warwick Smith, dated 12th May 1995 (see below), he actually blames the poor timeframe in the Arbitration Agreement for the production of documents, as one of the reasons the Arbitration Agreement was not credible.

Although Dr Hughes did not convene this meeting to discuss the production of documents between the aforementioned parties, as will be seen from the oral hearing discussed below, a meeting to discuss Telstra’s request for documents from Alan was convened.  Are we to assume some sort of favouritism by the arbitrator?

During the AUSTEL COT report period, in April 1994, Cliff Mathieson, a Technical Advisor to AUSTEL, asked Alan to keep AUSTEL informed of any evidence he found during his arbitration, that might assist AUSTEL in their investigations into 008/1800 billing and short-duration call problems.  AUSTEL actually wrote to Telstra’s Steve Black on 10th June 1994 (on Alan’s behalf), expressing concern at the problems he was experiencing with sending and receiving faxes.  To keep AUSTEL up to date, Alan writes to them, on 3rd October 1994 providing evidence, using Telstra’s own data, which showed they charged Alan for two non-connected recorded voice faults (RVA) on 27th May 1994.  Alan’s evidence was supported by the fact that the person who complained about these two faults was his Arbitration Claim Advisor, Gary Ellicot, ex-national crime detective.

This letter to AUSTEL on 3rd October 1994 later became pivotal to Alan’s increasing anger, particularly when he then received the following information from Dr Hughes in a letter dated 15th November 1994:-

“As I have indicated previously, I believe it would be inappropriate for me to order the production of documents in connection with the preparation of your claim, until Telecom has submitted it defence. I will then understand the parameters of the claim.” (AS-CAV Exhibit 92 to 127 - See AS-CAV Exhibit 92 to 127)

Alan’s frustration is clear from his response, dated 27th November 1994:-

“I refer to your letter dated 15 November, 1994.”

“In paragraph three you have noted that, if newly released F.O.I. material is made available by Telecom, and if that makes it necessary for me to amend my claim, I should advise you accordingly.”

“I have continually corresponded with both yourself and Telecom about my concerns with regard to the conduct of Telecom Management; Simon Chalmers; Freehill, Hollingdale & Page and their delaying tactics. Their drip feeding procedure, where the release of these F.O.I. documents is some twelve months late, has disadvantaged me in the preparation of my submission under the Fast Track Arbitration Procedure.”

“Newly released documents on their own may only show limited evidence, painting a small picture. However, had this newly released F.O.I. material been released some twelve months ago, as it should have been under the F.O.I. Act, this material, when combined with documents already released, would have helped in many instances to further the point made on certain issues.”

“Telecom Management, by using this destructive system, has disadvantaged C.O.T. and its members throughout this Arbitration Procedure. By not allowing all the evidence to be viewed by C.O.T., Telecom has stopped us from substantiating all our claims with all the available material. ‘A Jigsaw Puzzle Can Only Be Finished When All The Pieces Are Tabled’: and didn’t Telecom Management play this to a break! …”

“So, in response to your letter of 15th November, 1994: How can I amend my claim? Telecom have already had five months to view my first submission as presented in June, 1994, and three months to view my second submission presented in August, 1994. I am already living on borrowed time, in more ways than one, and each delayed week is having an effect, particularly where advertising for next year is concerned – this has already been disadvantaged. …”

“I do not have the resources to have a professional team view these additional F.O.I. documents which have just been released by Telecom. I have spent time writing reference to these examples and enough is enough. All future F.O.I. that has not been provided will have to stay put. I am today mentally exhausted and unable to continue taking part in Telecom’s façade, their Merry Go Round.”

“I thank you for your time, and that of the Resource Team.” (AS-CAV Exhibit 92 to 127 - See AS-CAV 119)

This letter was sent the following day, 28th November, and that evening, totally overcome with anger and frustration, Alan smashed a single barrel shotgun that had been given to him by his father-in-law, Noel Wagner, some 16 or 17 years earlier.

Alan Smith had still not received his arbitration documents 

Absent Justice - The Injustice Continues

LODGEMENT OF AN INCOMPLETE ARBITRATION CLAIM

The first part of Alan’s claim was lodged with Dr Hughes on 15th June 1994.  Paul Rumble, of Telstra’s Customer Response Unit and Graham Schorer, COT spokesperson, were also at that meeting.  At the time, Alan makes it very clear to Dr Hughes and Mr Rumble that:-

The Arbitration Agreement states the arbitrator should pass the claim onto Telstra WHEN THE CLAIM IS COMPLETE, and allow Telstra one month to complete their defence.  George Close was not able to submit his report until late in August 1994, but a letter from Dr Hughes to Mr Rumble on 22nd June shows Dr Hughes sent Alan’s interim claim to Telstra on 15th June.  Since Alan’s claim was not complete until George’s report was submitted, this meant Dr Hughes was arranging for Telstra to have at least two months, from first receiving Alan’s interim claim, to present their defence.  As it happened, Telstra did not submit their defence until 12th December 1994 – almost six months after receiving Alan’s interim claim.  How much more one-sided can a process be?

This 13-page document, dated 30th March 1995 from FHCA to Warwick Smith, is submitted in full in the CAV Peter Bartlett Target.  Two relevant pages confirm FHCA noted that Alan’s claim was not formally certified as complete until November 1994. (AS-CAV Exhibit 92 to 127 - See AS-CAV 103)

What this FHCA letter doesn’t say is, that due to Telstra withholding FOI documents from Alan, Alan was still drip-feeding claim material to Dr Hughes, but this material was never assessed.

10th October 1994:  Alan again complains to Telstra regarding the SVT tests.

Like his letter of 2nd October 1994 (AS-CAV Exhibit 92 to 127 - See AS-CAV 106), this SVT complaint was also copied to Dr Hughes and Warwick Smith.  Likewise, it received no response (AS-CAV Exhibit 92 to 127 - See AS-CAV 107).

Alan’s one-sided Oral Hearing

11th October 1994:  Back to the Oral Hearing with Telstra, see (AS-CAV Exhibit 92 to 127 - See AS-CAV 101).

When Alan is unable to comply with Telstra’s interrogatories, Telstra asks the arbitrator to convene an Oral Hearing, which he does.  Dr Hughes advises Alan to attend this hearing alone as Telstra’s lawyers won’t be involved but, as the transcript of this gruelling, five-hour, non-stop examination shows, Telstra is actually represented by two officers who have some sought of legal expertise: Steve Black and Ted Benjamin. Note, the FTAP rules prohibit cross-examination.

The transcript of this hearing also shows Dr Hughes accepts Alan’s claim material as factual and enters it into evidence.  Claim document SM18 is highlighted and discussed at great length at this hearing.  Evidence, inadvertently provided by Dr Hughes’s secretary in August 1995, confirms documents SM 18 & SM 19 do not appear on the list of assessed documents, in the DMR and Lane Report.  See Alan Smith Relevant Information File, exhibit 5, DMR and Lane Report.

Comparing Alan’s summary at exhibit AS-CAV Exhibit 282 to 323 - see AS-CAV 322-A to F  with exhibit AS-CAV Exhibit 92 to 127 (- See AS-CAV 108) shows the comprehensive log of complaints he provided to the arbitrator during his arbitration. Page 2 in the DMR and Lane report states: “A comprehensive log of Mr Smith’s complaints does not appear to exist.” (AS-CAV Exhibit 282 to 323 - See AS-CAV 322-C)  The listed numbers in the far-right column of AS-CAV Exhibit 92 to 127 - See AS-CAV 108 comprise the number of the claim document as well also a cross-reference to a brief description of the document.  How much more comprehensive could the first 10 pages of this 12-page document be?

Transcript pages 37 to 41 (AS-CAV Exhibit 92 to 127 - See AS-CAV 106) show Dr Hughes explaining that if Alan wants him to address the phone bugging issues in his claim then Telstra had the right to order him to provide relevant information to support the claim.  Twice Alan confirms he wants the phone bugging and privacy issues to remain in his claim.  Steve Black’s letter to Warwick Smith, dated 17th October, 1994 regarding the voice-bugging issues, states:-

“Mr Smith has also raised Telecom’s fault investigation procedures (including voice monitoring) as an issue in his claim which is under arbitration. Telecom is currently in the process of responding to that claim under the agreed arbitration procedure.” (AS-CAV Exhibit 92 to 127 - See AS-CAV 109)

Please note:  Neither, Telstra (in their defence) nor Dr Hughes (in his award) addressed the phone-bugging claim issues, even though the Arbitration Agreement, clause 11, states, “The Arbitrator’s reasons will be set out in full in writing and referred to in the Arbitrator’s award.” (AS-CAV Exhibit 92 to 127 - See AS-CAV 110)

On 27th October, and again on 3rd November 1994, Alan wrote to Telstra seeking relevant CCS7 and CCAS Bell Canada International data (AS-CAV Exhibit 92 to 127 - See AS-CAV 111 and AS-CAV 112).  Some of this data was included in documents supposedly held in Telstra’s archives and Telstra had previously advised the arbitrator the documents were ready for release (AS-CAV Exhibit 92 to 127 - See AS-CAV 96 and AS-CAV 99).

The transcript shows Alan’s claim document (“Smith 18”).  The arbitrator and Alan spoke at great length about this billing document (AS-CAV Exhibit 92 to 127 - See AS-CAV 101).

Telstra Minimise their Liability

Absent Justice - My Story - Parliament House Canberra

The Hon Michael Lee, MP, Minister for Communications,

13th October 1994:  The Office of The Hon Michael Lee, MP, Minister for Communications, receives AUSTEL FOI document folio 94/0269-05 (22): a Telstra whistleblower letter, originally sent to Parliament House, Canberra.  This letter alleges two of Telstra’s executives, Steve Black and Rod Pollock, were involved in altering or removing information on documents requested by the COT claimants under FOI.

Please note:  someone has added a handwritten comment on page one, pointing to Rod Pollock’s name and noting, “Warwick Smith has been critical of Pollock on some issues.”  Alan provides documentation confirming that, on 16th May 1994 he left irrefutable evidence with Sue Harlow (Deputy TIO), for her to pass on to Warwick Smith.  He also left his Statutory Declaration naming Rod Pollock as one of the Telstra employees who removed information on requested documents or didn’t provide the correct documentation that should have accompanied existing received FOI documents.  Did Alan’s evidence force Warwick Smith to ask questions prompting the whistleblower to come forward? (GS-CAV Exhibit 155 to 215 - See GS-CAV 206)

On this day when Alan Smith left this evidence with Sue Harlow, explaining that the hackers (not known at that time as being Julian Assange), Sue Harlow had never heard of the hackers although Alan Smith was with Graham Schorer when he discussed these hackers with Warwick Smith, it suggest that Warwick Smith had not informed his Deputy of this encounter.

Alan was of clear mind when he recalls telling Sue Hawlow on this day that the hackers had made it clear to Graham that the claimants were not meant to get their documents necessary for them to support their claims. 

The following Senate Hansard statement dated 24 and 25 June 1997 shows Telstra were also instructing their technical consultants they had to stop the COT Cases from proving their claims.

This statement by Whistle-blower, Lindsay White, was made under oath

Absent Justice - Australian Senate

Stop the COT Cases at all cost

Worse, however, the day before the Senate committee uncovered this COT Case Strategy, they also told under oath, on 24 June 1997 see:- pages 36 and 38 Senate - Parliament of Australia/from an ex-Telstra employee and then-Whistle-blower, Lindsay White, that, while he was assessing the relevance of the technical information which had been requested by the COT claimants, he advised the Committee that:

"In the first induction - and I was one of the early ones, and probably the earliest in the Freehill's area - there were five complaints. They were Garms, Gill and Smith, and Dawson and Schorer. My induction briefing was that we - we being Telecom - had to stop these people to stop the floodgates being opened."

Senator O’Chee then asked Mr White - "What, stop them reasonably or stop them at all costs - or what?"

Mr White responded by saying - "The words used to me in the early days were we had to stop these people at all costs".

Senator Schacht also asked Mr White - "Can you tell me who, at the induction briefing, said 'stopped at all costs" (See Front Page Part One File No/6)

It is clear from Mr White's statement he identified me as one of the five COT claimants that Telstra had singled out to be ‘stopped at all costs’ from proving their my against Telstra’.

Comment:

Warwick Smith must have told someone – either in Government or in a regulatory position – that two different sources named Rod Pollock.

The whistleblower’s letter was passed to Graham Schorer by the Regulator (then the ACA, now ACMA) during the Major Fraud Group inquiry.  Despite this type of information being available to both the TIO and the arbitrator, still, nothing was done during Alan and Graham’s arbitrations to investigate these FOI matters.

In this letter under the heading, “Concerns and Issues”, this document states:-

“Mr Steven Black Group General Manager of Customer Affairs who has the charter to work to address and compensate Telecom’s ‘COT’ customers as well as the management of other customer issues related to Telecom is involved in and initiates conduct and work practices that are totally unethical. …”

“There are three main areas which Steve Black and his senior executives have sought to influence and manipulate:

  • Remove or change clear information on the position of liability
  • Diminish the level of compensation payable to COT customers
  • Dismissive of breaches in relation to matters regarding customer privacy.”

“In relation to the Robert Bray case Steve Black has sought to cover up the true facts of disclosure of customer information. Particularly he has sought to cover up ‘broadcasting’ of the customers [sic] private information.”

10th November 1994:  Dr Hughes writes to Mr Schorer:-

“Telecom has indicated in its letter of 26 October 1994 that it is ‘keen to have all issues in dispute’ dealt with in the arbitration process. It is, therefore, prepared to classify the allegations of unauthorised telephone tapping as falling within the description of ‘alleged service difficulties, problems and faults’. …”

“If you submit a claim which makes no reference to the allegations of unauthorised telephone tapping, and if Telecom makes no comment about the exclusion of such allegations, then they will fall outside the scope of this arbitration.” (GS-CAV Exhibit 155 to 215 - See GS-CAV 207)

Alan Smith raised the issue of his phone being illegally tapped on 15th June 1994 in his Letter of Claim, in his response to Telstra’s interrogatories on 16th September 1994 and during his Oral Arbitration Hearing on 11th October 1994.  Since Alan’s phone tapping issues were never addressed in his arbitration, did Dr Hughes ever intend to address Graham Schorer’s phone tapping issues? (or did he plan to ignore them, as he ignored them in Alan’s case?).

The wording “alleged service difficulties and faults” is incorporated into clause 10.2.2 of the Arbitration Agreement.

This letter from Dr Hughes further confirms his knowledge that the phone bugging issues were part of the arbitration procedure and were to be addressed by Telstra during the procedure.  Why did Dr Hughes allow Telstra not to address the information contained in Alan’s arbitration claim, which confirmed the AFP transcript stated Telstra had listened to Alan’s phone conversations without his knowledge or consent?

11th November 1994:  John Wynack, Director of Investigations at the Commonwealth Ombudsman’s Office, writes to Frank Blount, Telstra’s CEO.  The letter is copied to Dr Hughes and Warwick Smith and indicates how desperate Alan was becoming.  Alan believes that Mr Wynack made it quite clear to Mr Blount that he would be more than a little concerned if Alan’s allegations were proved correct regarding Telstra deliberately blanking out information on documents previously supplied under FOI and withholding relevant documents from Alan, including the Portland/Cape Bridgewater Ericsson AXE telephone exchange logbook including the illusive Arbitration File that the hackers had said was so important.

Mr Wynack’s concerns were justified. (AS-CAV Exhibit 92 to 127 - See AS-CAV 114)

It is most important we attach here the following link http://www.wedophones.com/Manuals/EricssonNotInService/AXE%20Operation%20And%20Maint%20Module%201.pdf at this point of time because through this website, even though I asked the arbitrator to access the Portland AXE telephone exchange logbook, this logbook discussed on page 20 of this link was never accessed or provided to me under FOI or the arbitration discovery process. Even the Commonwealth Ombudsman tried to access this same logbook via writing to Telstra's CEO Frank Blount on 13 November 1994, asking why it was never provided to me under FOI. It is clear from page 20 in this attached link that all faults registered by Telstra's technicians concerning any ongoing telephone problems within the Portland and Cape Bridgewater switching exchange would have been entered into this logbook. 

This one document was all I needed to prove my claims of ongoing telephone problems was factual. Had the arbitrator been made aware of this, he could never have brought down his findings without making a provision in his award for further compensation until Telstra could prove there were no more problems with this AXE telephone exchange. The ambit of the Arbitration Act allowed for this provision for additional payment.

Just as important is, why did Lane Telecommunications Pty Ltd (ex-Telstra technician's) advise the arbitrator of the importance of this Ericsson 77-page AXE manual? Is the reason Lane Telecommunications Pty Ltd did not inform the arbitrator that such a logbook existed because they were working with Ericsson from the very beginning when they were appointed by the TIO in March 1995 (eleven months after I signed my arbitration agreement? We are talking collusion here of the worse possible kind. 

In Dr Hughes’ draft award on page 4 at 2.3, he states:-

“Although the time taken for completion of the arbitration may have been longer than initially anticipated, I hold neither party and no person responsible. Indeed, I consider the matter has proceeded expeditiously in all the circumstances. Both parties have co-operated fully.” (AS-CAV Exhibit 92 to 127 - See AS-CAV 115)

What is amazing about this draft award, inadvertently provided by the TIO office 2001, is that at the side column of this clause someone has handwritten “Do we really want to say this?”  Did someone believe the arbitration process was not being as transparent as it should have been?  In the final award, there is no clause 2.3. Comparing both the draft and final awards show that the technical findings are the same; however, it is evident, from a date discussed in the draft, the technical findings were prepared before the TIO appointed DMR Canada as the Technical Consultant.

Telstra admitted, to Mr Pinnock on 7th September 1995 it withheld at least 40 per cent of the documents Alan requested during his arbitration until after Dr Hughes deliberated on his claim. (AS-CAV Exhibit 92 to 127 - See AS-CAV 116)

40 per cent of Alan's requested documents withheld until after his arbitration 

Absent Justice - Documents Uncovered

Information not seen before 

Here was documents in Dr Hughes secretary files that did not match the arbitrators findings or the documents he returned to Alan after his arbitration. These arbitration documents showed there were two report of two seperate issues with vital information removed (see Chapter 1 - The collusion continuesChapter 2 - Inaccurate and IncompleteChapter 3 - The Sixth Damning Letter  and Chapter 4 - The Seventh Damning Letter

It is significant that Dr Hughes knew Telstra were not abiding by the FOI Act, including not abiding by the agreed Process of Discovery.  On page 4 of John Pinnock’s report to the Senate, dated 26th September 1997 he states:-

“In the process leading up to the development of the Arbitration procedures, the Claimants were told that documents would be made available under the Freedom of Information Act.” (AS-CAV Exhibit 92 to 127 - See AS-CAV 117)

As per section 15(1) of the Ombudsman’s Act 1976, Ms Philippa Smith, Commonwealth Ombudsman, released her findings regarding Graham Schorer’s FOI complaints against Telstra:-

121:     “In my opinion, Telecom acted unreasonable in failing to notify Mr Schorer that the (FOI) fee was waived when Mr Schorer met Telecom’s condition by signing the FTAP on 21 April 1994.”

138:     “In my opinion, Telecom, it was unreasonable for Telecom to impose the condition in the letter of 15 March 1994 to Mr Schorer that it would provide certain documents after receiving confirmation that the FTSP was to proceed.”

140:     “In my opinion, Telecom acted unreasonable in refusing access to those documents for a further five weeks. (Delay in granting access to the files mentioned in B above)”

151:     “In my opinion, it was unreasonable for Telecom to delay sending the documents while the solicitors examined them for contentious issues. (Verification of exemptions)”

155:     “In my opinion, it was unreasonable for Telecom to delay sending the documents while the solicitors examined the documents to verify that exemptions had been applied wherever possible.”

Ms Smith’s full report is attached to Graham Schorer’s CAV Relevant Information file exhibit 9.

Alan Smith writes to Dr Hughes (GS-CAV Exhibit 155 to 215 - See GS-CAV 209), copying a letter from John Wynack, also dated 11th November 1994 to Telstra’s CEO Frank Blount, which states:-

“At the request of Ms Geary, I am notifying you of the details of the complaints made to the Ombudsman by Mr Alan Smith. …

24.3.94            Telecom claimed that documents given to Telecom by Mr Smith in 1992 had been destroyed or lost.

Telecom unreasonably refused to give any further documents to Mr Smith.

Telecom has lost or destroyed a number of files relating to his contacts with Telecom prior to 1991. …

5.5.94              Telecom unreasonably delaying providing accessgused to provide the ‘Portland/Cape Bridgewater Log Book associated with the RCM at Cape Bridgewater’ for the period 2 June 1993 to 6 March 1994.” (GS-CAV Exhibit 155 to 215 - See GS-CAV 209-B )

Dr Hughes plays arbitrator

21st November 1994:  After sending his letter of 15th November (AS-CAV Exhibit 92 to 127 - See AS-CAV 118), but before Alan’s reply is drafted, Dr Hughes writes to Alan again, with the following statement:-

“If I form the view, or if the Resource Unit forms the view, that there are any relevant documents in the possession of either party which have been deliberately or inadvertently withheld, I shall make an appropriate order for production.” (AS-CAV Exhibit 92 to 127 - See AS-CAV 120)

In relation to this statement, consider the whistleblower’s letter, of 13th October, 1994 previously discussed:-

“Circumstances and past actions of senior staff within Telecom have made it necessary to bring your attention to some very concerning facts that can no longer be ignored or dismissed.”

“We hesitate to bring the following instances to your attention but decided it was necessary as this situation is far too serious to be allowed to continue, and attempts we have made within the organisation to bring our concerns to light have fallen unheard. …”

“The management of COT customers by Rod Pollock is nothing more than an unprofessional, adversorial approach towards customers. …”

“Their general position has been to sit behind legal word and its many interpretations in so doing avoiding full disclosure of information [sic]. …”

“There are three main areas which Steve Black and his senior executives have sought to influence and manipulate:

  1. Remove or change clear information on the position of liability.
  2. Diminish the level of compensation payable to COT customers.
  3. Dismissive of breaches in relation to matters regarding customer’s Privacy.” (AS-CAV Exhibit 48-A to 91 -  See AS-CAV 79)

Rod Pollock and Steve Black were Telstra’s Liaison Officers in Alan’s arbitration.  The situation becomes even more fraught because Rod Pollock was in charge of the release of FOI documents during Alan and Graham’s arbitrations – a fact that probably goes a long way towards explaining why so many requested documents were never supplied!  Rod Pollock wrote to Dr Hughes, informing him Telstra had the information Alan was requesting.  What was going on between Dr Hughes and Rod Pollock to make Dr Hughes ignore this?  Why didn’t Dr Hughes order Telstra to provide this material for Alan and Graham’s Technical Advisor when he, George Close, had asked for it as part of his report preparation?

Warwick Smith’s name is handwritten on this 13th October letter to Parliament and, as the TIO, he was the administrator of my arbitration.  Alan and Graham believe that, along with AUSTEL, Warwick Smith probably received a copy of this letter.  Why where the COT claimants never alerted to the existence of this letter?  Being unaware of this accusation of unlawful acts by senior Telstra staff severely disadvantaged them in their claim attempts, and the right to have the matter addressed legally.  Was Dr Hughes also aware of this letter?

After Alan’s arbitration, he received a letter from Telstra under FOI.  This letter, arbitration number L69364/5, confirms that Dr Hughes wrote to Telstra on 30 November, 1994 stating:-

“Whilst I am prepared to grant an extension of time in the Smith arbitration, I am doing so in the hope that in the spirit of co-operation, Telecom will use its best efforts to submit its defences in Garms and Valkobi on or before the same date.”

“If Telecom is able to submit all three defences on or about the same date, I shall prevail upon the claimants to submit their replies (if any) prior to Christmas. …”

“I do not propose forwarding a copy of this letter to the claimants as I do not consider it appropriate for me to discuss any individual’s claim with other Claimants.” (AS-CAV Exhibit 92 to 127 - See AS-CAV 121)

This certainly appears to indicate that Dr Hughes was willing to grant extra time in Alan’s arbitration as a trade-off in relation to Telstra’s defence on the other two COT claimants, Garms and Valkobi, who were, like Alan, still waiting for documents so they could finalise their claims.  On the other hand, how could any of them be expected to successfully submit their replies (if any) by Christmas, when Dr Hughes knew Telstra had still not supplied the documents they needed to support their claims? Nothing adds up.

In Alan’s own case, it also seems that Dr Hughes had completely forgotten his previous letter of 21st November (see above).

Telstra’s own records of Alan’s complaints show that he was still suffering the same problems that sent him into arbitration in the first place, right through his arbitration until 1995.  How could Alan’s 15th June 1994 letter of claim be successfully investigated when the problems and faults were still prevalent on the day the arbitrator brought down his technical findings contained in his award?

Four letters the FHCA admitted to withholding from Alan during his arbitration

4th October 1994: AUSTEL’s Bruce Matthews letter to Steve Black asking questions of Mr Black regarding the discrepancies in Alan’s 008 service line and (on average) 11 per cent incorrect charging on his facsimile 267230 line. (AS-CAV 126)
11th November 1994: Ted Benjamin’s response to Bruce Matthews’ letter, noting, “Each of the questions put by you in your letter of 4 October, 1994 will be answered as part of Telecom’s defence to Mr Smith’s claims lodged under the Fast Track Arbitration ” (AS-CAV Exhibit 92 to 127 - See AS-CAV 127)
1st December 1994: Bruce Matthews’ letter to Ted Benjamin, stating, “I note that your letter states that ‘Each of the questions put by you in your letter of 4 October 1994 will be answered as part of Telecom’s to Mr Smith’s claim lodged under the Fast Track Arbitration Procedure.’ ” (AS-CAV Exhibit 128 to 180 - See ​AS-CAV 128)
16th December 1994: Ted Benjamin’s letter to Dr Hughes, with the three letters (AS-CAV Exhibit 92 to 127 and AS-CAV Exhibit 128 to 180 See AS-CAV 126, AS-CAV 127, and AS-CAV 128) Mr Benjamin states:-

“The question has also been raised of whether discussion between yourself and Austel on the content of the claim and defence in Mr Smith’s arbitration might itself breach the confidentiality rules of the Fast Track Arbitration Procedure.”

“The simplest way forward may be for Mr Smith and Telecom and yourself to all confirm in writing that this information can be provided to Austel if this meets with your approval.” (AS-CAV Exhibit 128 to 180 - See AS-CAV 129)

Alan received none of these letters during his arbitration.

Clause 6 of the Arbitration Agreement states:-

“A copy of all documents and correspondence forwarded by a party to the Arbitrator shall be forwarded by the Arbitrator to the Special Counsel and the other party.” (AS-CAV Exhibit 128 to 180 - See AS-CAV 130)

Sue Hodgkinson, FHCA, wrote to Dr Hughes, (15 MONTHS) after Alan’s arbitration, on 2nd August 1996 admitting to withholding the above letters.  This is addressed in more detail later.

5th December 1994:  Graham Schorer writes to Dr Hughes stating:-

“Telecom have knowingly violated the FOI Act and their obligations to supply myself with Telecom documents in accordance with my valid FOI applications. …

Telecom even gave an undertaking to the Chairman of Austel, Mr Robin Davey to pass on to myself and the other COT members on the 22nd November 1993 that Telecom undertook to fast track mine and the other COT members FOI applications prior to Mr Davey emphasising that Telecom were serious in withdrawing from all negotiations if I the other COT members did not sign the fast track seminar proposal by 5.00 pm Tuesday, 23rd November 1993. …

Peta of Warwick Smith’s office can substantiate that Telecom is knowingly misleading other COT members regarding Telecom supply of documents [sic].” (GS-CAV Exhibit 155 to 215 - See GS-CAV 210)

TELSTRA's FLAWED DEFENCE DOCUMENT B004

To be continued - drafting of that section is currently under way as of 23 June 2022:- thank you 

COT Cases Ann Grams, Maureen Gillan, Graham Schorer and Alan Smith 

Absent Justice - Senator Ron Boswell

Senate Hansard - 20 September 1995

Senate Hansard records under the heading A MATTER OF PUBLIC INTEREST dated 20 September 1995, shows a very emotional Senator Ron Boswell discussing the above type of injustices that we four COT claimants ( i.e. Ann Garms, Maureen Gillan, Graham Schorer and me) suffered prior during and after our 'so-called' government endorsed arbitrations - (see Senate Evidence File No 1 20-9-95 Senate Hansard A Matter of Public Interest):

“...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 [Director of Public Prosecutions], 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. …

"This is an arbitration process not only far exceeding the four-month period, but one which has become so legalistic that it has forced members to borrow hundreds of thousands just to take part in it. It has become a process far beyond the one represented when they agreed to enter into it, and one which professionals involved in the arbitration agree can never deliver as intended and never give them justice." 

"I regard it as a grave matter that a government instrumentality like Telstra can give assurances to Senate leaders that it will fast track a process and then turn it into an expensive legalistic process making a farce of the promise given to COT members and the unducement to go into arbitration. “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.” 

 

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

Senator Carr

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

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

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

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

Cathy Lindsey

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

The Hon David Hawker MP

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

Hon David Hawker

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

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

Hon David Hawker MP

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

Sister Burke

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

– Edmund Burke