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The following document was provided to both the Administrative Appeals Tribunal and the Australian Communications Media Authority during my 2008 Freedom of Information (FOI) application to the AAT to grant me access to all of my 1994 to 1995 arbitration related documents, which the government promised I would receive if in signed their endorsed Fast Track Settlement Proposal /Fast Track Arbitration Procedure. 

In the following 22-page AAT Statement of Facts and Contentions, I have not attached the exhibits [the evidence as I have in every other submission on absentjustice.com] so as to avoid disclosing people’s identities and government security. Some of the main players in this saga may have been threatened or harassed into committing the injustices they did. However, at the AAT hearing I provided all of the evidence suporting this Statement of Facts and Contentions, in full, to the prime minister’s office, various members of the Australian government and the Australian Federal Police, and no one has questioned or refuted the validity of the documents. 

For those wishing to read only a sample of the chapters in my Statement of Facts and Contentions they need only to click on the various highlighted Contents as they will be taken directly to the chosen chapter.       

 

      ADMINISTRATIVE APPEALS TRIBUNAL

Statement of Facts and Contentions

ALAN SMITH

Contents

Introduction  2

Background  2

This Submission  2

My case and Public Interest 2

Senate Hansard – A Matter of Public Interest 3

Proving the Independence of the Government Regulator 3

Document 1 in the Respondents Section 37 Documents 4

Two Concerned Victoria Police Officers 4

Document 303 in the Respondents Section 37 Documents 5

Document 103 and 104 in the Respondents Section 37 Documents 5

The Incestuous Link Continues 6

Section 70 of the Crimes Act 1914  7

AUSTEL Concealment of Flawed Telstra Tests 7

Senate Hansard  7

Secretly Addressing Arbitration Issues 8

Document 177 in the Respondents Section 37 Documents 8

Covert Contract Changes 9

Denial of Natural Justice  9

Telstra’s Signature not witnessed  10

Documents 232 to 244 in the Respondents Section 37 Documents 10

Documents 35 to 48 in the Respondents Section 37 Documents 10

An Exercise in logic  11

The COT Arbitrations – A Tainted Defence  13

Suppression of Documents 14

Document 37 in the Respondents Section 37 Documents 14

Senate Estimates Committee Investigation re COT / FOI requests 15

Invasion of Privacy  16

Document 43 in the Respondents Section 37 Document 16

Bureaucrats and Concealment 17

DICTA Independent Assessment 17

Further to the Public Interest 18

Other Affected Businesses/Not an Isolated Problem   19

Document 303, the Respondents Section 37 Document 19

Document 290 to 292 in the same Respondent Section 37 Document 19

IMPORTANT COMMENT  20

Widespread Faulty Equipment 20

EXICOM TF200 phones / Faulty Optical Fibre and a Statutory Declaration  21

Conclusion  22

The Great Contact of Trust 22

Introduction

Background

It is important that the AAT understands that, back in August 1992, five ordinary small business operators, three from Victoria and two from Queensland, came together in an attempt to force Telstra to supply them with telephone services comparable to their business competitors. This group originally called themselves the Casualties of Telecom (later changed to the Casualties of Telstra), or COT Cases for short. One of the five, Shelia Hawkins, left the group at the end of 1992. After an audit of Telstra’s fault handling process by Coopers & Lybrand in late 1993, and a Government investigation into the COT’s complaints, which had by then escalated to some sixteen small businesses, it was clear that Telstra needed a testing process to determine if the faults being lodged by Telstra customers were genuine or not. Together with AUSTEL (the Government Communications Regulator), Telstra then set up a process called Service Verification Testing (SVT), designed to meet all of AUSTEL’s mandatory specifications regarding the success of calls going out of a customer’s premises and, more importantly, the success of calls coming into the customer’s premises. The AUSTEL / COT Cases public report that was provided to the Hon Michael Lee MP on 13^th April 1994 confirms that, in a pending settlement process for the Difficult Network Fault (DNF) COT Customer complaint, this SVT process was to be used to prove that there were no more problems affecting the customer’s service.

This Submission   

This twenty two-page Statement of Facts and Contentions has been condensed from a draft document entitled Section 70 of the Crimes Act 1914 (Australia), which totals 283 pages and 834 accompanying exhibits, including earlier letters I have written to the Australian Communications and Media Authority (ACMA) between 7^th February and 20^th October 2010, which the ACMA (the Respondents) have compiled as The Respondents Section 37 Documents.

This submission contains information that proves that the documents I have requested are in the public interest. The first part of this document does this by describing my own circumstances, and the deception that has been practiced on me by bodies whose positions of authority typically deems them to be above suspicion – Telstra, as a service provider, and at the time of most of these events publically owned; the government regulator of telecommunications, wether as AUSTEL, ACA or the ACMA; and the Telecommunications Industry Ombudsman. The documents that I have requested will hopefully encourage accountability, so that no one else should find themselves in a position like mine.

The latter part of this document focuses directly on the public interest – other business people who have had similar issues to mine, forcing them out of business, along with practices by Telstra where faulty equipment was knowingly installed, leading to a perpetuity of problems

My case and Public Interest

As my arbitration was endorsed by the Government Regulator, AUSTEL, on behalf of the Federal Government, then I believe it is certainly in the public interes, for Australian citizens to know that, in Canberra, on 21^st March 1995, two Commonwealth officers advised me that AUSTEL knew that Telstra, the defendants in my arbitration process, had knowingly relied on two flawed reports to support their defence of my claims (the Cape Bridgewater Bell Canada International (BCI) test report and the AUSTEL-facilitated Cape Bridgewater Holiday Camp Service Verification Test report), but AUSTEL was powerless to intervene.

1. AUSTEL found Telstra to have misled Graham Schorer (CoT Spokesman) and myself regarding our phone problems, but it took them thirteen years or more for copies of the draft reports that revealed these findings to be released to us.
2. Australian citizens can be assured that the legally binding arbitration agreements they have signed were drafted by the arbitrator in consultation with the Special Counsel attached to the TIO, only to learn, after the agreements were signed, that the defendants in the case (Telstra) had actually drafted the agreement which had a limited time frame allowing for the claimants to properly prepare their claims and access discovery FOI documents during the their respective arbitrations.
3. Covert changes can be made to the ‘final’ version of an arbitration agreement, after being sent by the arbitrator to the Solicitor representing the claimants for his opinion, but before the claimants signed it, with neither the Solicitor not the claimants being notified. This deception was not proved conclusively until 2007, when the relevant documents were released.
4. The Telecommunication Industry Ombudsman wrote to the defendants (Telstra) and the Government Regulator during the claimant’s designated arbitration appeal period, advising the defendants that: “I have to hand your letter of 19 May 1995 to AUSTEL’s Carrier Monitoring Unit which refers to the Smith decision and the reconciliation of the Arbitrator’s comments on Telstra’s legal liability. I am happy to discuss this matter. AUSTEL has sought my views”, but concealed this letter and the “Arbitrators comments on Telstra’s legal liability” so that the claimant (me) couldn’t use the Arbitrator’s comments during that appeal period.
5. The Telecommunication Industry Ombudsman did not notify the Government Regulator AUSTEL that the arbitrator had made his determination on Telstra’s legal liability in my case (see point 4) using an arbitration agreement that the arbitrator had already condemned as ‘not a credible document’ for use in the COT arbitrations.

Senate Hansard – A Matter of Public Interest

On the 20^th October 1995 an emotional Senator Ron Boswell addressed the Senate under the heading A Matter of Public Interest – Telstra noting:

“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. …

“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" (See Senate Evidence File No 1 20-9-95 Senate Hansard A Matter of Public Interest)

Proving the Independence of the Government Regulator

In my 20^th October 2010 letter to the AAT I stated that the ACMA has a conflict of interest in my FOI matters and that AUSTEL (now the ACMA) have concealed, from both the Government and the public, that in some cases at least, AUSTEL knew that Telstra’s SVT process was fundamentally flawed (see below) but still AUSTEL allowed Telstra to submit these flawed SVT reports to the TIO-appointed arbitrator.  Evidence contained in documents 103 and 104 in The Respondents Section 37 Documents,      namely CCAS data from the 29^th September 1994, the day Telstra conducted their SVT process at my business, has been analysed by Brian Hodge MBA who worked for Telstra for twenty-nine years as a technical specialist before going out on his own.  Mr Hodge’s report dated 27^th July 2007, which was   provided to the ACMA in 2008, states that Telstra did not perform the mandatory incoming Service Verification Tests into my business.

Document 1 in the Respondents Section 37 Documents

In my letter to the AAT on 20^th October 2010 (see document 1), in The Respondents Section 37 Documents ) I note:

“...If the author of the FOI Act had ever imagined that a Government agency or regulator would deliberately conceal relevant information from Government Ministers and/or allow a Government-owned organisation to submit false information to an arbitrator (which is exactly what Telstra did during my arbitration) then surely a special condition would have been included in the Act so that the injured party would be protected if they later asked for documentation from the agency that allowed this criminal conduct to take place. I am now asking the AAT – has a matter like this ever been presented to you before and, even if this is a completely new situation, could you please advise me how we are supposed to address the ACMA conflict of interest issues concerning FOI matters”.

Testimonials from the Commonwealth Ombudsman’s office show that some of the relevant information that AUSTEL concealed from these various Government Ministers (e.g. AUSTEL’s draft COT Reports) was provided to Telstra before Telstra signed my arbitration agreement on 21^st April 1994, but withheld from me until November 2007.  Points 209 & 212 in AUSTEL’s draft report, attached as documents 303 to 379 in the Respondents Section 37 Documents, prove that, if AUSTEL had given me this report when it was provided to Telstra, then Dr Hughes, as the assessor at the time, could have commercially assessed this fresh evidence under the already-signed, AUSTEL-facilitated Fast Track Settlement Proposal (FTSP).  Dr Hughes would then have been able to find more adversely against Telstra in his FTSP findings than he did in the Fast Track Arbitration Procedure (FTAP) award.

Two Concerned Victoria Police Officers 

In July 2001, two senior Victorian Police Officers, who had been staggered to discover that the Communications Minister’s officers had stopped the Senate Estimates Committee Investigation in 1997/99 from assessing my Telstra FOI matters, passed on to me a damning document headed Senate Estimates Committee Hansard In-Camera 6^th and 9^th July 1998, and stamped ‘Confidential’.  I am convinced that this document was provided to me after the Victoria Police Major Fraud Group had been in contact with technical consultants who had dismissed as total rubbish Telstra’s arbitration report that the Telstra laboratory had found a ‘wet and sticky substance’, which they identified as ‘beer’, inside my EXICOM TF200 phone (see also opposite page), and that this had caused the phone to lock up. 

On 28^th November 1995, six months after my arbitration, I received evidence confirming that Telstra had actually carried out two separate investigations of my phone, two weeks apart, and that the second test report proved that the first one, which had been provided to the arbitrator, was not a true account of the testing process at all but was a total fabrication. because actual pPhotos and graphs by Telstra laboratory staff proved that, when wet beer was introduced into the TF200 phone by Telstra’s laboratory staff, it dried out completely in forty-eight hours.  My phone, however, was collected from my business on 27^th April 1994 and not tested until 10^th May – a gap of fourteen days.  I now believe that the members of the Major Fraud Group who were later involved in my case were staggered to learn about this fresh evidence, but still neither the TIO Board nor AUSTEL would investigate this new information. If it would help, I can provide the AAT and the ACMA, in the public interest, with a copy of Telstra’s original, twenty-nine-page TF200 EXICOM Report, and the second set of Telstra’s laboratory findings – the ones that denounce the first report as nothing more than a bogus document that stopped a full and proper investigation into why my telephone service was locking up.

Telstra FOI document folio D01026 notes: “EXICOM TELEPHONES – the most common fault is line looping which can either be permanent or intermittent. In this case the call would appear on the billing record as a short duration call.”  This is the same, ongoing, short duration/billing fault that, on 11^th November 1994, under the heading Charging Discrepancies Recorded by Alan Smith and Issues Related to   Short Duration Calls on 008 Service, Telstra told AUSTEL: “...Each of the questions put to 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 Procedure”.  Please now remember that the EXICOM TF200 phone that Telstra installed at my premises was connected to my 267 267 incoming phone line; the line that my 008 service was routed through; the line that suffered from the short duration / lock-up / billing problems that Telstra said would be addressed during Telstra’s defence of my arbitration claims but which, instead, were secretly addressed by the Government Regulator on 16^th October 1995, five months after my arbitration had ended.

Document 303 in the Respondents Section 37 Documents

This is AUSTEL’s draft of their Alan Smith draft report printed on 3^rd March 1994.  The following two points in the report are particularly relevant:

Points 209 states: “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”. 

Point 212 states: “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”.

In relation to this type of testing regime, it needs to be noted here that it seems as though the failure of the testing regime to “locate the cause of faults being reported” may be linked to AUSTEL allowing Telstra to limit their mandatory parameters testing (FOI folio R04205). Pease also consider a Telstra email dated 20^th December 1993 (FOI folio A00354) which discusses this same testing parameter performance standard noting:  “I understand there is a new tariff filing to be lodged today with new performance parameters one of which commits to 98% call completion at the individual customer level. Given my experience with customer disputes and the recent BCI study, this is cause for concern. We will not meet this figure in many exchanges around Australia particularly in country areas”.  My records show that, during the period when AUSTEL allowed Telstra to limit this testing regime, AUSTEL and Telstra received over 2,644 customer complaints from just one survey and 4% (105) of the customers who responded to that survey stated they had experienced ongoing telephone problems of the COT type service difficulties and faults.

Document 103 and 104 in the Respondents Section 37 Documents

These two documents are Telstra’s CCAS data records from 29^th September 1994, the day that Telstra claim to have successfully carried out all the required incoming Service Verification Tests at the Cape Bridgewater Holiday Camp.  I believe the Australian public would consider it to be a gross miscarriage of justice, an abuse of power, and a major matter of public interest if they were to learn that public servants, paid from the public purse and working for a Government regulatory body (AUSTEL), would allow the defendants (Telstra) in a legal process such as my arbitration to hide behind their Government employer by falsely stating that all the incoming tests carried out at my business, on each of my service lines, had met all of AUSTEL’s specifications, when Documents 103 and 104 clearly confirm that none of the required incoming test calls to my business were carried out, on any of the three service phone lines.

If we can prove that, during a Government-endorsed arbitration process (even if it was sixteen years ago), AUSTEL, which was then the Government Telecommunications Regulator, knowingly allowed the defendants in the process (Telstra) to state, under oath, that their SVT process had met all of AUSTEL’s requirements, even though both Telstra and AUSTEL knew this was not true, and that they then concealed their knowledge from the relevant Communications Minister (then the Hon Michael Lee MP), then I believe the Australia public would definitely believe it was in the public interest for this information to be revealed. I am therefore now placing on record, as part of my AAT Statement of Facts and Contentions, a formal request for Mr Chris Chapman, Chairman of the ACMA, to appoint Emeritus Professor Reg Coutts, Part-time ACMA Board member, Managing Director of Coutts Communications Pty Ltd and Chairman of Red Button Technologies to assess the two pages of CCAS data records referred to above for the purpose of determining the actual level of ACMA’s independence in relation to my matters.  I also ask that Mr Chapman then provide the results of that investigation (which should not take any more than thirty minutes) to the Federal Government Attorney General, the AAT, and me.  If Mr Chapman and the ACMA Board refuse to assist me in this he will simply confirm my claims that the ACMA has a conflict of interest in relation to my matters and the ACMA should therefore not be left in charge of determining which FOI documents they can locate and which they cannot.  I am therefore also respectfully asking that the AAT pass a copy of this Statement of Facts and Contentions to the Federal Attorney General because it is quite clear the Government Regulator has continued to conceal the associated SVT evidence ever since.  It should also be noted that there is no statute of limitations in relation to exposing a crime.

The Incestuous Link Continues

On the 18^th June 1993 Michael Elsegood, AUSTEL’s Manager of International Standards, wrote to Telstra in relation to my billing issues.  I had explained to AUSTEL using Telstra’s own Call Charge Analyses System (CCAS data) that there seemed to be two related problems caused by a lock-up problem in the Ericsson AXE software (which Telstra already knew about).  The Portland, manned AXA Exchange, which the Cape Bridgewater, unmanned Remote Multiplexer Exchange is routed through, had been experiencing these problems from at least August 1991, a situation that is supported by numerous Telstra FOI documents, one of which (L23848) notes: 

“These numbers indicate to me the poor standard of Ericsson software. For as long as we have had AXE we have been having software lockups and almost every CNA/ISU that comes along promises a solution to this problem but they still occur”. 

Then an internal Telstra email to the infamous Peter Gamble (FOI folio A13980) notes: 

“...you are quite correct in your thoughts that the anecdotal reference applies more to AXE than ARE-11 ‘Lock-ups’ are generally was well-known as a problem in AXE exchanges not only in Australia but in countries overseas as well”. 

On 20^th January 1994 Cliff Mathieson AUSTEL and Michael Elsegood co wrote and signed a letter to Telstra on behalf of the Government Regulator AUSTEL under the heading Verification Tests For Difficult Network Fault Cases noting:

“...Tests involving the customer’s equipment should be conducted to ensure that there is no fault in the equipment. Where test results do not meet the essential outcome, remedial action should be taken and the relevant tests repeated to confirm correct network operation”

In fact AUSTEL’s first quarterly COT Cases report to the Hon Michael Lee MP dated July 1994 notes:

“...An important component of Telecom’s 4-stage fault handling process is the Service Verification Tests (SVT). These tests are applied during stage 3 of this process. These tests are important for Telecom to be able to provide objective data about the end-to-end performance or its network in regard to the service of an individual customer on the date the tests are conducted. In its briefing, Telecom indicated (and we will seek confirmation and further detail in writing) that if the SVT indicates an unacceptable level of service then the required replacement of network equipment will be undertaken”.  

Michael Elsegood is currently a member of the TIO Board and both the TIO and ACMA Boards are refusing to investigate why AUSTEL (now the ACMA) deceived the Hon Michael Lee MP into believing that all of the Service Verification Tests had been successful when the attached CCAS data (Documents 103 and 104 in the Respondents Section 37 Documents) proves otherwise. As stated above, one way in which the TIO and ACMA Boards can prove their independence would be to use the platform of the matters now before the AAT to arrange for documents 103 and 104 in the Respondents Section 37 Documents to be properly and transparently analysed to determine whether or not Telstra did generate the required incoming test calls in to my business on all three service lines, as directed by AUSTEL.  It must surely be in the public interest for both the TIO and ACMA Boards to determine whether the ACMA’s predecessors did or did not act in an unconscionable manner by providing an elected Member of Parliament with false information concerning the Cape Bridgewater SVT process. 

Section 70 of the Crimes Act 1914

A statutory declaration dated 23^rd March 2010 was aexplaining that Frances Wood and Cliff Mathieson had advised me, on 21^st March, 1995 two months before the arbitrator handed down his decision in relation to my matters, that AUSTEL knew the Bell Canada International Inc BCI and SVT tests at Cape Bridgewater were fundamentally flawed.When I asked Mr Mathieson to report this to the administrator to my arbitration however, he stated words to the affect that AUSTEL could not become involved, because it was a matter for the arbitrator to determine.It is both a matter of serious concern AND of public interest that public servants, paid from the public purse, are afraid to reveal information that will affect court or arbitration decisions.In the SVT case, the arbitrator then accepted as fact three sworn affidavits from Telstra, all falsely saying that the SVT process had met all of the Government Regulator specifications. Are we to assume that because Section 70 of the Crimes Act 1914 prohibits public servants from revealing what they uncover during their regulatory duties this act supersedes Australia’s Constitution that every citizen of Australia has a duty of care to report a crime committed against a fellow Australian?

On 12^th July, 1995 Cliff Mathieson wrote to Taits Solicitors Warrnambool noting:

“...This letter responds to your correspondence dated 29 June 1995 in relation to your client Mr Alan Smith. Mr Tuckwell, Chairman, AUSTEL, has requested that I reply on his behalf. The tests to which you refer to were neither arranged nor carried out by AUSTEL. Questions relating to the conduct of the tests should be referred to those who carried them out or claim to have carried them out.”  

AUSTEL Concealment of Flawed Telstra Tests

Senate Hansard

Hansard records of a Senate Estimates Committee Meeting on 24^th June 1997 confirm that, during cross examination by Senator Schacht and Senator O’Chee, Mr Lindsay White, a senior Telstra technical expert, stated under oath that part of his COT arbitration work was to assess technical information and that during his induction he was told that the five COT complainants, naming me as one of the five, who, according to Peter Gamble, had to be stopped at all cost.  According to Mr White, Mr Gamble actually said:

“… we – we being Telecom – had to stop these people, to stop the floodgates being opened.”

The Hansard report then records Senator Chris Schacht asking:

“Stopped at all costs – that was the phrase?  Can you tell me who, in that induction briefing, said ‘stopped at all costs’? 

To which Mr White responded: “Mr Peter Gamble, Peter Riddle.”

On 16^th November 1994 AUSTEL wrote to Telstra stating:

“...The recent SVT results for Alan Smith raise some issues on which AUSTEL requests clarification, as follows: That Telecom will shortly provide, as requested in AUSTEL’s letter of 11 October 1994, a statement on: the deficiency of the current process”...

and

“...This statement should also detail the action Telecom intends to take to address this deficiency”.    

On 28^th November 1994, one month after Peter Gamble had been advised about these deficiencies in the Cape Bridgewater Holiday Camp SVT process, Mr Gamble responded to AUSTEL’s letter, advising AUSTEL that the information he was providing to AUSTEL regarding the SVT results, was being: “… supplied to Austel on a strict Telecom-in-Confidence basis for use in their Service Verification Test Review only and not for any other purpose. The information is not to be disclosed to any third party without the prior written consent of Telecom”, even though that information was being used by Telstra as arbitration defence material during the Government-endorsed, AUSTEL-facilitated COT arbitrations, AUSTEL still went along with Mr Gamble and concealed their knowledge that Telstra had relied on SVT results they knew were fundamentally flawed.  Could it be that AUSTEL allowed Telstra to use these flawed defence documents because AUSTEL’s Commonwealth Officers were worried that, if they revealed that information to anyone outside AUSTEL, they would be caught by the now-outdated Section 70 of the Crimes Act 1914, and the two-year jail term that could be handed down?  It must certainly be of public interest that first; Telstra and the Government Regulator conspired to allow false evidence to be submitted to a Government endorsed arbitration, and second; that they allowed this crime to be concealed  – all because of an outdated section of the Crimes Act.

I therefore ask that the AAT carefully consider:

• A comparison of the CCAS data in documents 103/104 of the Respondents Section 37 Documents, which confirms that Telstra’s Peter Gamble did NOT carry out the required SVT process at my premises on 29^th September 1994, with Mr Gamble’s letter dated 28^th November (see immediately above), because it is of public interest that AUSTEL, a Government Regulator, concealed this vital CCAS data from me, as a claimant in a Federal Labor Government-endorsed arbitration;
• If AUSTEL had released this evidence during my arbitration then the arbitrator would have had no other choice but to demand that Telstra explain why they were relying on Cape Bridgewater Holiday Camp test results they knew were fundamentally flawed.

Secretly Addressing Arbitration Issues

Document 177 in the Respondents Section 37 Documents

This letter dated 1^st March 2010 is one of many letters I have written to the ACMA asking why, after the arbitrator had handed down his findings in relation to my arbitration, Telstra had been allowed to secretly address issues that had not been addressed during that arbitration.  The issues that were addressed after my arbitration included the billing claim documents referred to in my letter of 1^st March, when I noted: 

“It was part of this same billing problem that AUSTEL allowed Telstra to address in secret on 16^th October 1995, five months after the end of my arbitration, and therefore outside the arbitration procedure. When AUSTEL allowed Telstra to secretly investigate my arbitration claims regarding billing problems, I was automatically denied my legal right of reply”.

On 19^th December 1995, when I was still unaware that AUSTEL had allowed Telstra to address some of my arbitration claims outside the arbitration process, Darren Kearney, AUSTEL’s Senior Policy Analyst, visited my business and, as I have also noted in my letter of 1 March 2010:  “Clearly, even without 70% of my claim documents, I was still able to prove to Mr Kearney there were serious lock-up and billing problems affecting my phone and fax service”.  These are, of course, the same lock-up problems that Telstra knew had affected thousands and thousands of customers when the EXICOM TF200 phones had been installed in moisture-prone areas like Cape Bridgewater (see p.20 and p.21section, below).

It is therefore of public interest notable that:

• The Government Communications Regulator allowed Telstra to address arbitration claim documents outside a legal arbitration arena even though, in 1994, the Regulator had assured the Australian Senate that the arbitration would be conducted according to the Commercial Arbitration Act 1984, under the auspices of the Supreme Court of Victoria; and
• The same Government Regulator did not allow me my legal right to challenge Telstra in relation to this lock-up/billing issue because I could have shown that it was likely that many other Telstra customers were also experiencing the same lock-up/billing problems and that these problems could be related to the EXICOM TF200 phones as well as the now exposed national 008/1800 billing problems.

In other words, if AUSTEL and/or the Telecommunication Industry Ombudsman had allowed me my legal right of reply to Telstra’s 16^th October 1995 defence of my arbitration claims, then AUSTEL would have realised that I could be right and, once again, Telstra was misleading and deceiving a Telstra customer.  This would then have meant that AUSTEL would have been duty bound by legislation to demand that, as per Telstra’s licensing conditions, they recall all the EXICOM TF 200 phones.  Instead, some of those faulty EXICOM TF200 phones may well be in existence today.

Covert Contract Changes

Denial of Natural Justice

On 12^th April, 1994 Dr Hughes wrote to Peter Bartlett (TIO Special Counsel, noting:

“I appreciate that one claimant has already executed the agreement in its current form. The others will no doubt be pressed to do likewise over the next few days. I further appreciate you will be reluctant to introduce additional changes to the draft procedure at this delicate stage of negotiations but it is of course also fundamental that account be taken of the concerns raised by members of the Resource Unit. Perhaps the agreement should be executed in the current form and then agreement sought from the parties to vary the terms to take into account any proposals by Ferrier Hodgson or DMR which you agree are reasonable”. 

Although the 12^th April, 1994 letter was only copied to the TIO (Warwick Smith) and J Selek & J Rundell of Ferrier Hodgson (the Arbitrators Resource Unit), it now has a Telstra FOI number (A59256/7) allocated to it, confirming that Telstra saw this letter, probably either before or shortly after the agreement was signed.  Since it was not officially signed by Telstra in our presence it would seem Telstra (or their lawyers) noticed the alterations to clause 24 and the removal of the liability caps for Ferrier Hodgson (inc clause 25) and DMR the technical consultants (in clause 26) when Peter Bartlett (Special Counsel) couriered the agreement to Telstra on 21^st April 1994, after we had signed it.  Alternately were were to execute the agreement in the current form”, as Dr Hughes suggested in his letter of 12^th April, and then alter the agreement while they still had it in their possession?   Although Peter Bartlett wrote to COT spokesperson Graham Schorer on 22^nd April 1994, noting: “...I enclose a copy of the Procedure as signed by yourself and Telecom,” we did not get the Telstra signed arbitration agreement until five days later.  Could it be that the changes were made some time during those five days perhaps?  What we do know for certain is that Senator Richard Alston, Senator Ron Boswell, Graham Schorer (COT Case Spokesperson), our lawyers and I believed we were signing the same agreement that the first claimant, Maureen Gillan, had executed on 8^th April because our lawyers had received the same (unsigned) version for their comment, faxed from Dr Hughes’ office, on 19^th April 1994.

The fax imprint on these two identicle agreements were faxed from Dr Hughes’ office by his secretary, Caroline Friend, to Mr Alan Goldberg QC and William Hunt, solicitor between 1:20 and 2:00 pm on 19^th April 1994.  Each fax included an unsigned copy of the arbitration agreement, the same agreement that had already been executed by Maureen Gillan on 8^th April 1994 (the claimant referred to by Dr Hughes in his 12^th April letter to Peter Bartlett). It is these two identical agreements that Senator Richard Alston, Senator Ron Boswell, Alan Goldberg QC, William Hunt, Graham Schorer and I believed we were signing on 21^st April 1994, still had the $250,000.00 liability caps still in place (see opposite page).

PLEASE NOTE:  The first COT claimant executed the agreement on 8^th April 1994 and, shortly after copies were then provided to Senators Richard Alston and Senator Ron Boswell, who were informed that this was the final, binding version of the agreement that would be used for the other COT claimants.  The alterations that were made after the agreement had been approved by these two Senators, a QC (Alan Goldberg), a Solicitor (William Hunt), the first COT signatory (Maureen Gillian), Graham Schorer and me. These were not only covert alterations to a legal document after the claimants’ lawyers had agreed to it in its original form, nor is it just about a legal document that was altered after the claimants had actually signed it, this is a legal document that was altered after two Senators, elected by the people of Australia, had also been led to believe it was the final version.

Misleading and deceiving two lawyers and the claimants may not be considered as a matter of public interest, but misleading and deceiving two elected Senators of the people surely is.

Telstra’s Signature not witnessed 

It is important to note that, even though we strongly requested that Telstra sign this agreement in front of us, our requests were ignored.  Barry Sullivan from Plummer & Pullinger, Loss Assessors, witnessed our signatures on all seventeen pages of the document but when it was returned to us from Telstra, only Steve Black’s signature had been added, and it had not been witnessed, as our signatures were.  This gives further rise to our concern to when the agreement was altered.

On 20^th September 1995 (page 3, above) in a speech by Senator Ron Boswell in reference to the first four COT claimants, the Senator noted:  “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 whether to enter arbitration at all.” This statement supports my suggestion that there was something sinister going on when we were being pressured into signing the arbitration agreement.  In part of the speech referred to above, Senator Boswell also referred to an FOI document folio D01166 written by Telstra that stated:  “My course therefore is to force Gordon Hughes to rule on our preferred rules of arbitration,” – further testament to our claims that the COT claimants were never given a ‘level playing field’ in the lead up to signing the arbitration agreement.

Documents 232 to 244 in the Respondents Section 37 Documents

Theseis documents, which includes a copy of a letter dated 22^nd June 1994, from Telstra’s Steve Black to Peter Bartlett and an attached copy of the arbitration agreement that was to be used for the following twelve COT claimants (with the $250,000.00 liability caps replaced) was faxed to AUSTEL from the TIO’s office which seems to indicate that the Government Telecommunication Regulator, AUSTEL/ACMA was aware that the liability caps had been replaced on this agreement.  I believe this suggests that the present Regulator, the ACMA, knows more about the unlawful alterations to the arbitration agreement than they are prepared to reveal which, again, supports my contention that it is highly probable Section 70 of the Crimes Act 1914 is stopping certain public officials from disclosing what they know in regards to the covert alterations to the arbitration agreement.

It is interesting to note that, even though letters that I wrote to Mr Chris Chapman, Chairman of the ACMA, on 17^th & 30^th September and 29^th December 2008 clearly shows that AUSTEL was involved in some way in this covert alteration arbitration agreement matter Mr Chapman still chose to respond, on 21^st January 2009, advising me that:  “You have indicated that the arbitration agreement you signed was not in the same terms as the agreement you had previously been shown and believed you were signing. ACMA considers that the matter falls outside its statutory responsibilities and it does not intend to investigate.”

Documents 35 to 48 in the Respondents Section 37 Documents 

On page 5 of this 7^th February 2010 FOI request I explain that AUSTEL was advised that Telstra was secretly altering FOI documents in orderso as to minimise Telstra’s liability, before they were released to the COT claimants and that Telstra’s Steve Black had been named as the ringleader of that process.  This was the same Steve Black who signed the altered arbitration agreement and the same Steve Black who sent a copy of the new version of the agreement (prepared for the following twelve COT claimants, with the liability caps replaced) to Peter Bartlett on 22^nd June 1994.

The information I am currently seeking under my 7^th February 2010 FOI request (which is now before the AAT) is of public interest because it is directly linked to the Government Communications Regulator (AUSTEL) and the TIO’s Special Counsel both being aware, at the very least by 22^nd June 1994, of these covert alterations to my arbitration agreement, and how they did nothing to assist me to have these clauses reinstated in the same way they were reinstated, as Clause 11.2, in the new agreement to be used for the remaining twelve COT claimants, and in Rule 31 in the TIO’s ‘Standard Arbitration Rules’ that were used for all other TIO-administered arbitrations.

An Exercise in logic

In my 9^th December 2010 letter to Mr Julian Burnside QC (copied to the AAT) it is clear that at least 3,000 of my fault claim documents could not possibly have been assessed, collated, calculated and then valued, particularly since we know that Dr Hughes’ technical resource unit DMR & Lane asked for ‘extra weeks’ in which to value this fault data but their official request was denied because Dr Gordon Hughes was booked to deliver a legal paper in Greece and could not afford to spend any extra time on my arbitration. In fact Peter Bartlett (Special Counsel) wrote to Warwick Smith (TIO) on the 28^th April 1995 stating:

“Attached is a draft letter to Gordon. It is in reasonably harsh terms. Could you please consider whether a letter in this form or an amended form, should go to Gordon”.

The draft letter states:

“...I understand you are to present a paper in Greece in mid May. I would expect the Award would be delivered prior to your departure. It would be unacceptable to contemplate the delivery of the Award being delayed until after your return”. 

How can one version of two identical DMR & Lane reports, both dated 30^th April 1995, can list thirteen more bound submissions containing approximately 3000 claim documents that the other version of the report? How can both reports state they sourced exactly the same claim documents when one list has thirteen more spiral bound submission (containing approx 3,000 claim documents) and perhaps more important, if one version of the report shows that there are thirteen sets of claim documents (3,000 more documents to be assessed and the other version), apparently produced on the same day, notes that those documents had all been properly assessed, how could the resource consultants have assessed 3,000 extra highly technical documents in the space of one single day?

As an exercise in logic, let us assume that DMR & Lane were able to magically assess, collate and understand the relevance of those 3,000 technical documents in just the one day available on (30^th April) – then where are the results of that magic assessment?  There are no references to assessments to the study of the billing documents in the so-called ‘final’ version of the report and/or draft report the only reference to billing issues in Dr Hughes’ version indicates the need for extra weeks to assess Smith’s billing claim documents – making it blatantly obvious that DMR & Lane were not able to magically assess, collate and understand the relevance of those 3,000 billing claim documents at all.

As a second exercise in logic, let us assume that the two consultants, Paul Howell from DMR (Canada) and David Read from Lanes, were each able to read, understand and collate one technical document per minute (even though most professionals allow three to four minutes to read and assess technical documents), and there are 3,000 technical documents to read in all, or 1,500 each; even if the two consultants read for ten hours a day without taking any breaks they would each still only get through six hundred documents per day (at one per minute or sixty per hour).  Alternately, if they worked non-stop for twenty-four hours, they might manage 1,440 documents each.  This would be difficult enough, if what they were reading were simple, uncomplicated documents, but most of the billing documents under discussion would require mathematical calculations to be checked, if the consultants were doing their work properly in relation to Telstra’s Call Charging Analysis (CCAS) data.  Obviously this is not possible.  

Information related to all these matters is in the public interest because the arbitration project managers Ferrier Hodgson is a company that still assesses many Australian and International businesses.  In my case, however, Ferrier Hodgson simply allowed my valid claim documents to be discarded.  In fact, documents 170 and 171 in the Respondents Section 37 Documents make up a letter dated 17^th March 1998, from A. G. Hodgson, Chairman of Ferrier Hodgson, to Mr Alan Cameron, Chairman of the Australian Securities Commission, which states:  “DMR, Lane and FHCA (Ferrier Hodgson Corporate Advisory) did consider all of the Claims submitted by Mr Smith. DMR and Lane did address all of the claim documents submitted to the Arbitrator” but a comparison of my previous 26^th July 2008 AAT Statement of Facts and Contentions; and this current AAT Statement of Facts proves that Mr Hodgson either knowingly deceived the Australian Securities Commission, or his staff knowingly deceived him.

In June 1996, the TIO asked FHCA to explain why, during my arbitration, relevant claim correspondence from Telstra to Dr Hughes was withheld by FHCA from being investigated.  On 2^nd August 1996, FHCA’s Sue Hodgkinson wrote to Dr Hughes admitting that FHCA had withheld relevant billing correspondence from being assessed but, even though documentation from the TIO’s office noted that:  “These are quite serious allegations. We need to respond to specific letters Smith says weren’t forwarded or received and provided answers on each” the TIO has never explained why FHCA withheld this billing correspondence from the arbitrator and me during my arbitration.   

On 6^th December 1995, my financial claim advisor, Mr Derek Ryan of DMR Corporate, wrote to Senator Richard Alston, informing the Senator that the Ferrier Hodgson Corporate Advisory (FHCA) financial report on  my matters:

“… was in an incomplete state and it is impossible for anyone to re-calculate or understand how FHCA loss figures were determined and he had been advised by a staff member of FHCA that a large amount of information was excluded from their final report at the request of the arbitrator.”

On 17^th February 1996, in relation to Mr Ryan’s complaints, Mr John Rundell of FHCA wrote to Mr John Pinnock (TIO) asserting that he: “… did advise Mr Ryan that the final report did not cover all material and working papers.” FHCA’s admission that their report was incomplete was also withheld from Mr Alan Cameron, Chairman of the Australian Securities Commission.

Clearly FHCA based their calculations on my accountant’s report of 21^st June 1994 alone, and did not include the supplementary financial report I submitted to FHCA in March 1995.  TIO reporting confirms that both the (TIO) Warwick Smith and the arbitrator (Dr Hughes) were clearly aware that the COT Claimants were having difficulty in preparing their respective claims in the limited time frame allowed for by Telstra when they drafted the arbitration agreement used in the COT arbitrations. It is clear from Dr Hughes letter of 12^th May, 1995 to Warwick Smith (see page 18) that Dr Hughes dammed the arbitration agreement as not being a credible document because of these poor time frames.  In my case, I informed Dr Hughes I would be submitting further financial information to support my claim.

On page 3 of their report, FHCA agree that I purchased the business in February 1988 and go on to note that: 

“At the time of the purchase, CBHC (Cape Bridgewater Holiday Camp) catered predominantly for school camps. Smith states that he set out to increase this market to social, Probus and single clubs and he intended to run tours and total package holidays.”  In my supplementary financial report of March 1995, I provided FHCA with numerous examples of how I had increased the market, with 40% of the bookings being made up of social clubs etc by 1991/92, along with explanations of how these groups had experienced difficulty in reaching me by phone.  FHCA however, only based their report on the lowest priced school camp rate of $37.00 per student for two nights and completely ignored the more lucrative margin over the weekends when social clubs booked for two nights (fully catered) at rates between $140.00 and $160.00 per person.

The AAT and the ACMA may think they can argue that this is not a matter of public interest but FHCA were free to make whatever calculations they chose to make because, from as far back as 1994, AUSTEL, the ACA and now the ACMA have continued to hide the part they played in secretly exonerating FHCA from any liability that might result from exactly the type of behaviour described above. If FHCA had not been secretly exonerated from any liability for the part they played in my arbitration, I am sure their calculations of my financial losses would have been a lot higher than 4.5% of the figure calculated by my accountant, Derek Ryan of DMR Corporate. A difference of 95.5% is a very large discrepancy and raises questions about the possibility of a more sinister motive related to Telstra allowing the FHCA $250,000.00 liability caps to be removed from my arbitration agreement.

The COT Arbitrations – A Tainted Defence  

On 12^th December 1994, Telstra declared to the arbitrator (under oath), that the Telstra Corporation had no case to answer in relation to my claims.  In support of this statement Telstra submitted twelve witness statements, five bound volumes of supporting documents, a highly legalistic submission, two fundamentally flawed technical reports, a request for further and better particulars and a demand that I respond to Telstra’s interrogatories.  It cost me close to $200,000.00 to submit professionally prepared financial and technical claims and a response to Telstra’s interrogatories but, before I even began that expensive process, AUSTEL had already found strongly against Telstra in their draft report (see above). Since 1995 I have invested a further $240,000.00 in expenses in a (so far) unsuccessful attempt to have my arbitration matters independently investigated.

It is a matter of public interest that, during a Government-endorsed legal arbitration process, a Government-owned corporation (as Telstra was in 1994) was able to persuade some of their employees to perjure themselves by submitting sworn affidavits stating that Telstra’s Portland / Cape Bridgewater network had NOT experienced the many serious ongoing telephone faults detailed in my claim, even though the following points prove that the Telstra Corporation knew, long before their employees  knowingly submitted these false statements:  

1. Telstra Grade of Service Complaint Mr Alan Smith dated 2^nd July 1992 notes: “...Our local technicians believe that Mr Smith is correct in raising complaints about incoming callers to his number receiving a Recorded Voice Announcement saying that the number is disconnected. They believe that it is a problem that is occurring in increasing numbers as more and more customers are connected to AXE.”  
2. Telstra FOI document titled Telecom Secret Folio C04006/7/8 records:  “...Many letters stating the problem of not getting through to Alan Smith. Legal position – Mr Smith’s service problems were network related and spanned a period of 3-4 years – given his evidence and claims. I do not believe it would be in Telecom’s interest to have this case go to court. Overall, Mr Smith’s telephone service suffered from poor grade of network performance over a period of several years”.
3. AUSTEL’s 3^rd March 1994 draft findings (see p 5 above) which notes: “...it is apparent that the camp has had ongoing services difficulties for the past six years which has impacted on its business operations causing losses and erosion of customer base;

AUSTEL’s hiding of their draft report (which was not released until November 2007) has cost me dearly and what the TIO, AUSTEL and now the ACMA have failed to understand is that it took eighteen months of my life and an enormous financial burden to complete my arbitration and all I was unknowingly doing was attempting to prove something that AUSTEL had already proved (in their draft report) while Telstra continued to submit false witness statements, under oath, denying there was ever a problem.

Have the ACMA Chairman Chris Chapman, the ACMA Board or the TIO Board fully understood what happened as a result of AUSTEL concealing from the Minister, the arbitrator and me what they knew to be the truth regarding my ongoing telephone problems? Senate Estimates Committee Hansard records confirm that Telstra spent millions upon millions of dollars in legal fees defending COT claims when, as it has now been revealed, the claims of at least two and possibly eight COT claimants had already been proved, months before the claimants signed the arbitration agreement.

Have the ACMA Board and the TIO Board fully understood how much it has cost tax payers for Telstra to defend the COT claims when Telstra was a fully-Government-owned corporation? The cost to the taxpayer included the hiring of the TIO-appointed arbitrator; the TIO Special Counsel; and the TIO-appointed Resource Unit. The Resource Unit alone worked on assessing claim and defence documents from 1994 to 1998 – and all this money was spent as part of a process where the Government Regulator (AUSTEL) had already secretly found in favour of the claimants.

On top of all these expenses you can add the cost of investigations run by Senate Estimates Committee Hearings between 1997 and 1999 and the Commonwealth Ombudsman’s Office into the way in which Telstra withheld relevant FOI documents the claimants had a legal right to, particularly since the Government Regulator’s secret draft reports had already determined that Telstra had been at fault all along.

Suppression of Documents

Document 37 in the Respondents Section 37 Documents

Document 37 is my FOI request of 7^th February 2010 (the subject matter now before the AAT) on page-3 that on 11^th January 1994 Telstra’s Steve Black wrote to both Warwick Smith Telecommunication Industry Ombudsman (TIO) and then Acting AUSTEL Chairman Robert Horton noting:

“...Information obtained from Telecom, in the course of AUSTEL’s regulatory functions, and relevant to any parties involved in a formal arbitration process with Telecom under the control of the (TIO) will only be released after consultation with the TIO and Telecom”.     

It is clear from this letter that any relevant document that AUSTEL (now the ACMA) “obtained from Telecom, in the course of AUSTEL’s regulatory functions”, would first be vetted by either the TIO or AUSTEL before it was released to the COT Claimants.

25^th March 1994:  The Commonwealth Ombudsman, Ms Philippa Smith, wrote to Telstra’s CEO, Frank Blount, advising him that Telstra’s Steve Black had informedadvised her Director of Investigations, John Wynack, that Alan Smith was not being provided with FOI documents during his arbitration because of:  

“...the need for Telecom to check all documents prior to release so that Telecom is alert to the possible use/misuse of sensitive information. Your officers also informed Mr Wynack that they expected the vetting of the documents would take only a couple of days.”

22^nd June 1995: sSix weeks after Dr Hughes brought down his findings using the agreement he declared not credible and a technical report that was incomplete Telstra released to me under FOI conclusive proof that the Bell Canada international Inc, Cape Bridgewater tests were impracticable. When I raised this fresh evidence with the new TIO John Pinnock and Dr Hughes on 21^st June 1995 the TIO office faxed their concerns to Peter Bartlett at Minter Ellison stating:

“Re Alan Smith, John (John Pinnock) wants to discuss it on Monday, and what the approach should be re parties seeking to revisit issues post Arb’n (Arbitration) His position is not to open the can of worms, but would like to discuss strategy with you.”

20^th August 1997: Ben Dunn, Barrister Michael Brereton & Co wrote to Senator Ron Boswell Re: Alan Smith v Telstra Corporation noting:

“...It seems clear that at the time of reaching the initial settlement with Telstra, Mr Smith had not been fully informed by them of the extent of the problems with the exchange and that Telstra, wittingly or unwittingly, withheld information relevant to the settlement to Mr Smith’s detriment, The conduct of the arbitration which followed was highly dubious and open to attack as inviting questions of bias since the arbitrator ruled out many relevant documents to the detriment of Mr Smith’s claim. All of these circumstances and the fact that the entire arbitration was conducted in a highly legalistic manner much in favour of Telstra on rules it forced into place suggest that Mr Smith was less than fairly dealt with by Telstra and the arbitrator”.

 27^th January 1999: Senator Kim Carr, Manager of Opposition Business in the Senate (and now Minister in the present Labor Government) wrote to me noting:  “The appalling manner in which you have been treated by Telstra is in itself reason to pursue the issue, but also confirms my strong 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.” 

23^rd March 1999: after the Senate Estimates Committee Hearing into the COT arbitrations had been completed, the Australian Financial Review reported that the Chairman of the Committee, Senator Eggleston, had stated:   “A Senate working party delivered a damming report into the COT dispute. The report focussed on the difficulties encountered by COT’s 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 [Telstra] have defied the Senate working party. Their conduct is to act as a law unto themselves”.

The above statement made by Senator Eggleston that: “They [Telstra] have defied the Senate working party. Their conduct is to act as a law unto themselves”, coincides with a letter I received two days previous dated 21^st March, 1999 from J R Perry of Perry & Associates Pty Ltd addressed to the Casualties of Telstra C/- The Small Business Show Channel Nine noting:

“...I watched your show on Sunday morning carrying the piece of Telstra. I was interested to hear of Telstra’s lies under oath, destruction of evidence, etc, etc. I started a law suit 21/2 years ago against Telstra for breach of contact during their cable TV rollout. They have placed every obstacle in our way and dragged the case out to try to bleed us dry. They sent dozens of contracting companies such as mine to the wall by manipulating markets and breaching contracts. Only 3 companies have had the resources to fight them. Unfortunately two company owners have allegedly committed suicide due to the loss of their homes and families as a consequence of Telstra’s actions, although this would be difficult to prove. We also have found the following: – Destruction of evidence from the first day of the suit – False affidavits from Telstra management – Withholding discovery documents”

PLEASE NOTE: Telstra has just recently unveiled a new security operations centre (SOC) in Canberra, along-side T4 ASIO’s protection security section. It offers a range of security advisory services designed primarily for Australian Government Departments, agencies and business enterprises but can be provided to others, with the written approval of the attorney general, provided that a Commonwealth interest can be shown.  Just twelve years ago however, on 23^rd March 1999 (see above), Senator Eggleston advised the public that: “They [Telstra] have defied the Senate working party. Their conduct is to act as a law unto themselves.”    If Telstra’s conduct has now changed so that they no longer ‘act as a law unto themselves’ as they did up to at least 1999, then Telstra should prove it, by agreeing with the ACMA to have the Cape Bridgewater Holiday Camp CCAS documents assessed by Emeritus Professor Reg Coutts, part-time ACMA Board member.

Senate Estimates Committee Investigation re COT / FOI requests

I believe it is a matter of public interest that:

·          The then-Federal Coalition Government in 1997 and 1998 only investigated five of the twenty-one COT claimant’s complaints of not receiving relevant FOI documents during their government endorsed arbitration’s.; The ·           The claims of the remaining sixteen COT Cases were ignored because the Government was concerned about the time frame of assessing (their claims remaining claims)because such an investigation would impede upon the then-pending privatisation of Telstra.

In-camera Senate Estimates Committee Hansard reports dated 6^th and 9^th July 1998, state that one Senator actually told a senior Telstra Executive that he agreed with:

“... the chair. We have a difficulty. In many senses we all say, ‘For God’s sake Telstra, just give the last four all half a million or a million dollars each and stop it immediately.’ But that would be an injustice to the 16 or whatever you have settled.” 

Injustice or not, as a result of the Senate’s involvement, the first five of the twenty-one COT claimants did eventually get some of the FOI documents they had asked for and receive compensation as a result of the Senate investigation.  The remaining sixteen COT claimants however (see opposite page), who were on the Senate Estimates Committee’s ‘B’ list, were not provided anywhere near the FOI documents they were entitled to, nor did they receive compensation from Telstra through this Senate Estimates investigation, even though they had been informed that, whatever the outcome of the first five ‘litmus test’ COT cases, the following sixteen would be treated the same.

I believe it is a matter of public interest that three Senators I know of (there could be more) have tried desperately to organise for these claimants to have access to the type of documents that the other five claimants had access to as well as some sought sort of compensation for those remaining sixteen COT claimants, but this has not eventuated.  In fact, there was one occasion when a Senator phoned my home at 7.45 one morning to inform my partner and me I that he had achieved a breakthrough my claims would be assessed, only to be stopped by those with a vested interest in concealing my evidence that is included in my 26^th July 2008 AAT Statement of Facts and Contentions and in this current Statement of Facts and Contentions. 

All this evidence proves that the COT / Government-endorsed arbitrations were not conducted according to the promises pledged (see documents 271 to 273 in the Respondents Section 37 Documents) to then-Shadow Minister for Communications, Senator Richard Alston; Senator Ron Boswell of the National Party; and the Australian Democrats.

Invasion of Privacy

Document 43 in the Respondents Section 37 Document

On page 9 in my 7^th February, 2010 FOI request to the ACMA, I provided advice that, on 7^th January 1999, Scandrett & Associates Pty Ltd, Telecommunications Consultants (Queensland) wrote:

“In our opinion these additional “facts” would make it almost certain that COT persons did not perform any alteration to the headers of the faxes involved. The second possibility is that a party or parties with access to the Telstra network on a national basis and the ability to selectively intercept and resend facsimiles have interfered with or used the national network of Telstra to intercept and resend these faxes. In summary then it appears to be almost certain that faxes are being intercepted and resent, with an attempt to hide the same, to the receiving party”; and on 11^th January 1999, Peter Hancock of Total Communications Solutions (Victoria) wrote in his statutory declaration that: “It is my opinion from the evidence provided that a third party has been intercepting all of the faxes referred to above. In my experience there is no other explanation for the discrepancies in the facsimile footprints in question. I have read the report of Scandrett & Associates Pty Ltd and concur with its contents”.

My 2010 FOI request of 7^th February asks the ACMA to provide all the documents referred to in the Australian Federal Police transcripts as being provided to the AFP by AUSTEL.I believe it is important for the AAT to know that no-one has ever addressed these telephone / facsimile interception issues, even though AUSTEL, Dr Hughes (arbitrator) and Warwick Smith (TIO) assured all the COT Cases that these privacy issues would be addressed during their arbitrations. I now have conclusive proof that Telstra knew when my secretary left my office at various times when I was away in Melbourne including, on one occasion, noting the dates I would be away from my office weeks before those trips occurred and one occasion Telstra was able to document that one of my regular callers happened to telephone me from a different location than usual.

On 23^rd December 2002 and 7^th January, 2003 I wrote to Tony Shaw Chairman of the ACA. Copies of both these letters ha since been returned to me from the ACA (now the ACMA) and it is clear that these two letters were also intercepted (seven years after my arbitration) before being redirected on to the ACA. The markings on these two documents are same markings on the documentation assessed by Scandrett & Associates and Peter Hancock (see above) which they labelled as having been intercepted.

I believe most Australians would want to know, if the ACMA has nothing to hide on behalf of Telstra, then why would they not investigate these on-going interception issues in the public interest?  I have two arch lever files that confirm that numerous COT claimants’ commercial in-confidence documents were still being intercepted years after these COT cases went into arbitration. Surely, if a Government Communications Regulator refuses to address fax interception evidence I have offered to provide them, that confirm someone with access to Telstra’s network was intercepting faxes during and after the end of their arbitrations, then this is a matter of public interest?

Bureaucrats and Concealment

DICTA Independent Assessment

On 15^th September, 2005 Senator Barnaby Joyce wrote to me noting:

“I am pleased to inform you that the Minister has agreed there needs to be finality of outstanding CoT cases and related disputes. The Minister has advised she will appoint an independent assessor to review the status of outstanding claims and provide a basis for these to be resolved.

I would like you to understand that I could only have achieved this positive outcome on your behalf if I voted for the Telstra privatisation legislation”.

On 12^th March 2006, before I agreed to be a part of Senator Barnaby Joyce’s assessment process, I wrote to Liz Forman of the Department of Communications, Information Technology and the Arts DCITA noting:

“In your last letter to me you advised that the proposed independent assessment will not include “...an investigation of whether the law was broken by Telstra” and yet you are asking me to supply any information I can in support of my unresolved claims against Telstra. The issue of Telstra’s illegal activities and my unresolved claims cannot be separated. Quite aside from the Minister’s legal obligation to have Telstra’s conduct investigated by the Federal Attorney General, the reason my claims are still unresolved, after ten years, is directly because of Telstra’s unlawful behaviour plus the lack of assistance provided by either the TIO or the arbitrator, either during my arbitration or since, in relation to these acts.

How can we separate these issues when they were entwined even before my arbitration began, when I was forced to sign the original arbitration agreement without being told that the terms had been secretly changed to favour the defendants (Telstra)?

How can DCITA expect some issues to be separated from others when they are so inextricable intertwined?

In response to my letter to Liz Forman, I received a letter dated 17^th March 2006, from David Lever of DCITA, stating that:“If Telstra or its employees have committed criminal offence in connection with your arbitration, we will refer the matter to the relevant authority.”  Mr Lever however did NOT contact the relevant authorities, either in relation to the SVT or BCI reports that were provided to the DCITA even though both reports confirm Telstra DID commit crimes against me when they submitted these reports to the arbitrator, aware they were fundamentally flawed.

It is alarming to note that fellow government bureaucrat Nikki Vajrabukka sent a DCITA internal email to David Lever on 3^rd March 2006, informing him that she had emailed David Quilty (then Telstra’s Government Liaison Officer) at david.quilty@team.telstra.com, asking for Telstra’s assistance in addressing my March 2006 submission which described how, during my arbitration, Telstra had knowingly submitted THREE fundamentally flawed reports as official defence documents.  Sending this email is much like asking a criminal if they should be charged in relation to crimes they have committed.  It is also interesting to note that, before Mr Quilty moved to Telstra he was Chief of Staff to the DCITA Minister (then Senator Richard Alston) during the time that I was providing the Minister with the same damning evidence against Telstra and the unlawful way in which my arbitration had been conducted.  The result was that the DCITA (independent assessors) found Telstra had no case to answer.

Two of the documents I submitted to Senator Richard Alston in 2002 and the DCITA assessment process in 2006 are letters dated 23^rd January and 15^th February 1996, from Dr Gordon Hughes (arbitrator) to John Pinnock (TIO), confirming that Dr Hughes was extremely concerned that, if Laurie James, President of the Institute of Arbitrators, was to investigate my complaints to the Institute about the unethical way in which my arbitration had been conducted, such an investigation might: “…jeopardise the current arbitrations…”. Dr Hughes even went as far as to note, in his letter of 23^rd January, (see back-page) what: “...the cost of responding to the allegations, (might be) if I make a full and frank disclosure of the facts to Mr James.”  Dr Hughes wrote these two letters after he had already secretly written to Warwick Smith (TIO) on 12^th May 1995, during my designated arbitration appeal period, condemning the arbitration rules as ‘not a credible document’, even though he had used those very same rules to deliberate on my claims.  Dr Hughes’ letter to the TIO was withheld from me, so I was not able to use it in any appeal process – clear testament to the validity of my claims against Dr Hughes and the exonerated Resource Unit.  These three letters were, however, provided to Senator Helen Coonan’s DCITA assessment process but were ignored, further proof that there is no natural justice available for ordinary citizens when they come up against corporations (like Telstra).

A letter dated 17^th May 2007, from Senator Helen Coonan (DCITA) to me notes:

“I have now made both formal and informal representations to Telstra on behalf of the CoTs. However, Telstra's position remains that this is a matter that is most appropriately dealt with through a Court process. Telstra is not prepared to undertake an alternative means of pursuing this matter. I also appreciate the depth of feeling regarding the matter and suggest you consider whether any court proceedings may be your ultimate option.”

The most important aspect of this process, something which seems to have been lost along the way, is that, at least between 1993 and May 2007, when Senator Coonan wrote the above letter, Telstra clearly had more power than all the democratically elected Ministers and Senators in the Australian Government combined because, from as far back as their days as the Government-owned PMG, Telstra has been able to manipulate a web of public servants, who have then been able to over-ride agreements reached between Senators and, in my case at least, they were able to stop an allegedly Independent Assessment process from exposing the truth about Telstra. Telstra’s arrogance towards most Australian citizens is further demonstrated by Senator Coonan’s comment in her letter that “Telstra’s position remains (the same)”.

It is clear that there are many secrets held by Members of our Parliament and their public servant advisors, secrets which raise the following questions:

• How can a democratically elected government allow a corporation (private or not) to dictate the Government’s decisions when both Houses of Parliament have acknowledged that the corporation has committed crimes against fellow citizens?
• Why is it that, if a group of citizens who have suffered as a result of crimes wishes to have a corporation charged when elected Senators have already proved those crimes, those citizens have to instigate and finance the court process themselves?

Further to the Public Interest    

From the State Library of Queensland (via Wikipedia)

In the Public interest refers to the “common well-being” “or general welfare” of the citizens. The public interest is central to policy debates, politics, democracy and the nature of government itself. While nearly everyone claims that aiding the common well-being or general welfare is positive, there is little, if any, consensus on what exactly constitutes the public interest, or whether the concept itself is a coherent one.

Ambiguities of the concept 

There are different views on how many of the public must benefit from an action before it can be declared to be in the public interest: at one extreme, an action has to benefit every single member of society in order to be truly in the public interest; at the other extreme, any action can be in the public interest as long as it benefits some of the population and harms none.

Put simply, to be in the public interest a matter might have the potential to adversely affect any person at any time in their life in any situation if a core matter is not put into the public arena or handled in a more reasonable way when the problem clearly becomes evident as symptomatic of an underlying unreasonableness.

It is possible for acts in the public interest to be bad for given individuals and vice versa. This definition allows us to “hold constraint” private interest in order to determine those interests that are unique to the public.    

Other Affected Businesses/Not an Isolated Problem

Document 303, the Respondents Section 37 Document 

Point 9 in this AUSTEL FOI document 95/0674-01 shows it is of public interest that, as a result of AUSTEL deciding NOT to survey other Cape Bridgewater residents in 1994 this may have contributed to Mr Barry Sullivan losing his Cape Bridgewater building business during this period.  On the 8^th November 2002, I received a letter from Mr Sullivan, in which he advised: 

“I am writing to you following viewing the Channel 9 Sunday Program on 3/11/02. After viewing the Sunday program, I realised the similarities your business and others had with Telstra some ten years ago with the similarities our building business had, when we lived at Bridgewater. During a period of time between the late 1980s and early 1990s we had a considerable amount of difficulty with our phone. Our phone problem had such a negative effect on our building business over a period of time that our work dried up and our business shut down. Our business had been running successfully for several years prior to the phone problems”.

Like Mr Sullivan, the ongoing telephone problems that were not investigated during my arbitration had such a negative effect on the viability of our business my partner and I had to sell the holiday camp in December 2001, to Darren & Jenny Lewis. Had AUSTEL chose to force Telstra (under their licensing conditions) to investigate why my business was still suffering from the same ongoing phone problems that had forced Barry Sullivan out of business the same ongoing phone telephone problems that AUSTEL acknowledged in their covert draft report (see Document 378 in The Respondents Section 37 Document) at point 209, which states:   “...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”, both Barry Sullivan and I might still be in business today.

Document 290 to 292 in the same Respondent Section 37 Document

This letter dated 28^th January 2003, from TIO Investigator Gillian Mc Kenzie to Telstra, notes: “Mr and Mrs Lewis claim:

• That they purchased the Cape Bridgewater Coastal Camp in December 2001, but since that time have experienced a number of issues in relation to their telephone service, many of which remain unresolved.
• That a Telstra technician “Mr Tony Watson” is currently assigned to his case, but appears unwilling to discuss the issues with Mr Lewis due to his contact with the previous Camp Owner, Mr Alan Smith.
• That the phone problems have decreased dramatically since Telstra Corporation rewired the business on 9 December 2002 and disconnected the phone alarm bell, however he is still experiencing problems with receiving calls and continued to have problems with his fax line”.

The comment at point 2 That:  “...a Telstra technician “Mr Tony Watson” is currently assigned to his case, but appears unwilling to discuss the issues with Mr Lewis due to his contact with the previous Camp Owner, Mr Alan Smith”, is ambiguous to say the least because I have lived next door to the Holiday Camp since 1994 (and therefore next door to the Lewis’ and the Lewis’ drew their water from my bore), so of course we were in regular contact.  Plus, this same Tony Watson had been in charge of the phone and facsimile problems at the Camp both before and during my arbitration in 1994/95 and, we now know, provided the arbitrator with misinformation in relation to lost faxes, even though Mr Watson knew those faxes had never arrived at their intended destination. And here we have the same Tony Watson harassing the Lewis’ in relation to their lost faxes, just as he had dismissed my lost fax complaints as frivolous eight years before. 

IMPORTANT COMMENT

In the Respondents Section 37 Documents, between document 423 (my letter dated 3^rd August 2010 to Ms Danielle Evans, Senior Lawyer the ACMA) and document 447, there are only two other letters associated with my FOI matters – document 439 dated 8^th August 2010, to Mr Chris Chapman, the ACMA Chairman, and document 447, my letter dated 23^rd August 2010, also to Mr Chapman. 

In a letter dated 16^th August 2010, to Danielle Evans (which should have been in the Respondents Section 37 Documents), I explain how the Telstra 008/1800 national billing problem, which affected hundreds of thousands and thousands of unsuspecting Telstra 008/1800 customers, could, at least in some cases, be linked to a known lock-up problem that resulted from the redeployment of between three and four hundred and fifty thousand faulty EXICOM TF200 telephones back into service.  On page 2 of my letter to Ms Evans I have noted that not only did Telstra and the Government Communications Regulator (AUSTEL) allow Telstra to operate outside their licensing conditions, but many Victorian country exchanges suffered from call losses of between 6 and 45% and I related this level of call losses to the many ongoing problems that affected the viability of my business and, after I sold the business, the endeavours of the new owners, Mr and Mrs Lewis.

Widespread Faulty Equipment

My arbitration submission included references to:

• AUSTEL’s General Manager of Consumer Affairs writing to Telstra’s Steve Black on 12^th April 1994 regarding ‘engineering activity’ in the Cape Bridgewater area, which indicated that Telstra was ‘laying optical fibre’ in the area; and
• A Telstra FOI document (A00253) which notes:  “Existing stocks of Corning cable will be used in low risk / low volume areas”, indicating that Telstra definitely was laying optical fibre cables but, further, that Telstra knew the cable they were laying was faulty which is why they were using it in areas they thought would not be affected by the aculeate coating (CPC3) used on the optical fibre from Corning Inc (US). 
• My concern regarding another statement in document A00253, that: “Optical fibre cable is supposed to have a 40 year working life. If the MacKay & Katherine experiences are repeated elsewhere in the network, in the northern part of Australia, the network is likely to develop attenuation problems within 2 or 3 years of installation”. 

Statutory Declaration

It is certainly important that the public be aware that Telstra chooses to install faulty optical fibres into areas they think will not be affected by heat, particularly when this information is added to a statutory declaration dated 4^th September 2006, from Darren Lewis (the new owner of the Cape Bridgewater Holiday Camp) see document 298 to 299 in the Respondents Section 37 Documents which notes, at point 19,

“Telstra informed us we had what is commonly known in technical words as ‘a line in lock-up’ rendering our business phone useless until the fault is fixed.

It was then that the local technician informed me that as strange as it might seem he believed that because our business was on optical fibre and was so close to the Beach Kiosk (junction box) this could very well be part of the problem. Apparently either under powering or over powering was also an issue.   He realised that after testing all the other optical fibre outlets with his testing equipment and still reached this impossible reading (according to the technical guru) he would move us off of the fibre. It was on this note that the technician informed me that although it was a back ward step he was going to investigate the possibility of moving the business off the optical fibre and back to the ‘old copper wiring’.

Could Darren Lewis’ telephone and fax problems, or any of the other Customer Access Network-related problems that Telstra hid from AUSTEL during AUSTEL’s COT investigations be connected to the installation of Corning optical fibre cables?  Could Telstra have installed the faulty Corning Inc (US) optical fibre cable in the Cape Bridgewater area because they thought that area was low risk / low volume, just like they thought the area was not moisture prone when they installed the faulty EXICOM TF200 telephone at my business during my arbitration in 1994?  How many residences in Australia are connected via Telstra’s Customer Access Network to faulty Corning Inc (US) optical cable? These are major issues that could be badly affecting unknown numbers of Telstra customers, all over the country, and it is certainly important that, in the public interest, this information is now broadcast to Telstra customers at least, particularly since Telstra’s network is about to be divided up.

EXICOM TF200 phones and Faulty Optical Fibre

We already know about the problems caused when Telstra installed EXICOM TF200 phones in areas they thought were not moisture prone and now Telstra FOI document (A00253) suggests that Telstra installed faulty cable into areas they thought were not heat prone.  In relation to the EXICOM phones, Telstra’s FOI document D01026 states: 

“Whilst I do not have the total deployment of EXICOM phones available it has been assessed that there is approximately 450,000 phones with potential faults. Of these there are 325,000 Serial 550/141 phones deployed in areas of high moisture. Because of the supply problems Exicom phones will still have to be deployed in areas of lower moisture risk”.

I have already given the ACMA and the TIO’s office irrefutable evidence that Telstra installed two of these EXICOM TF200 phones at my business in 1993 and again in 94 and one of these EXICOM’s were still in use just prior to me selling the business to the Lewis’.  One question that has never been answered is whether or not the problems experienced by the Lewis’, after they took over the business, were caused by a combination of the faulty optical fibre and the faulty EXICOM phones.  I do know though that many trash and treasure markets in rural Victoria, and probably interstate, were selling EXICOM TF200 phones until quite recently, clearly unaware that the product locked up in moisture-prone areas like Cape Bridgewater or in places like, for example, a fish shop, an indoor swimming pool, a pizza parlour, bakery, or almost anywhere moisture is prevalent.

Even with all this proof of problems with the EXICOM phones, Telstra has never publicly recalled them.  Surely the public therefore now have a right to know (in the public interest) that Telstra and the ACMA are hiding the problems with the EXICOM phones and the faulty optical fibre from the Australian public? How many of these EXICOM TF200s will be purchased in Australia in 2011 by unsuspecting customers wanting a cheap second-hand extension phone? 

Conclusion

The current Julian Assange, WikiLeaks saga provides testament to how people all around the world, Australians included, have had enough of secret deals made by Government Ministers and Regulators (like AUSTEL / the ACMA) and the way Governments conceal information that citizens have a right to know about. 

The Great Contract of Trust

Our Australian system of government requires the Crown’s representative, its Ministers of State and elected representatives that in all things, at all times, for all parties, the law and Constitution shall be respected and upheld. Before power can be exercised over the people, the governors and/or administrators seal this great contract by a sworn Oath of Office.

It is well settled that neither Sovereign, Head of State, President nor executive government should be above the law in societies which claim to be governed by the rule of law, any more than you or I are above the law. This democratic principal engineers public confidence and trust in government. It binds us together as a nation. We have sacrificed our lives for this principal.

Thomas Jefferson said:

“...The two enemies of the people are criminals and government, so let is tie the second down with the chains of the Constitution so the second will not become the legalized version of the first.”

When Government decides to put itself outside the law, the Governor General must bring it back within the law, and if necessary, exercise the discretionary reserve powers. That’s what they are there for. It is the genius of our constitutional monarchy.

When and if the Crown Ministers place themselves beyond the law and constitutional monarchy system, those such as the Governor-General or State Governor - as Heads of State - must be, in the last resort, able to invoke the Crown’s reserve powers in order to ensure compliance with the general law and effective working of parliamentary democracy.

It is my opinion we may have such an extraordinary circumstance now in the shape of what has been exposed in my 26^th July 2008 AAT Statement of Facts and Contentions and in this current February 2011 Statement of Facts and Contentions.

Invoking the Governor-General’s Discretionary Reserve Powers is an option that must be considered in resolving these long outstanding issues.

Thank you

Alan Smith

The chronology of events below is only part of the story and decption which the hackers had warned us would destroy any chance we had of receving natural justice during our arbitrations. I do not think it will be entirely read for one moment.

I am introducing a segment where Julian Assange messages was clearly one of concern for the COT Cases.

However, it is here on my website absentjustice.com. It can be used as reference material if at any time a member of the Australian government requires confirmation on an issue and a dated period of when that issue came to light.  

Clicking onto this linke Chapter 1 - WikiLeak exposing the truth will take you to the next Julian Assange page

Chronology of events:   

All events quoted in this publication are supported by copies of the original documents which support the statements being made on this website. Hundreds and hundreds of further documents are being edited to further assiting me in my attenmpt to prove to the government corruption in Australia's seat of arbitration is real or was real between April 1994 and March 1999.  

To get the best benefit from reading our mini-stories, the hundreds of statements made in those stories are numbered and can be checked alongside the exhibits below.

Example 1:  File AS 942 - AS-CAV 923 to 946 

Example 2 :  File 34-C - AS-CAV Exhibit 1 to 47

AS-CAV Exhibit 1 to 47 – AS-CAV Exhibit 48-A to 91 – AS-CAV Exhibit 92 to 127 – AS-CAV Exhibit 128 to 180 – AS-CAV Exhibit 181 to 233 – AS CAV Exhibit 234 to 281 – AS-CAV Exhibit 282 to 323 – AS-CAV Exhibit 324-a to 420 – AS-CAV Exhibit 421 to 469 – AS-CAV Exhibit 470 to 486 – AS-CAV Exhibit 488-a to 494-e – AS-CAV Exhibits 495 to 541 – AS-CAV Exhibits 542-a to 588 – AS-CAV Exhibits 589 to 647 – AS-CAV Exhibits 648-a to 700 – AS-CAV Exhibit 765-A to 789 – AS-CAV Exhibit 790 to 818 – AS-CAV Exhibit 819 to 843 – AS-CAV 923 to 946 –  AS-CAV Exhibit 1150 to 1169 –AS-CAV 1103 to 1132 – AS-CAV Exhibit 1002 to 1019 – AS-CAV Exhibit 996 to 1001 – GS-CAV Exhibit 1 to 88 – GS-CAV Exhibit 89 to 154-b – GS-CAV Exhibit 155 to 215 – GS-CAV Exhibit 216 to 257 – GS-CAV Exhibit 258 to 323 – GS-CAV Exhibit 410-a to 447 – GS-CAV Exhibit 448 to 458 – GS-CAV Exhibit 459 to 489 – GS-CAV Exhibit 490 to 521 – GS-CAV 522 to 580 – GS-CAV Exhibit 581 to 609    AS-CAV Exhibit 488-a to 494-e -  AS-CAV Exhibit 1150 to 1169 -  AS-CAV Exhibits 1103 to 1132    AS-CAV Exhibit 1002 to 1019 -  AS-CAV Exhibit 996 to 1001

INDEX

 

Introduction	Page 3
Setting the Scene	Page 4
Interception Issues/Criminal Conduct	Page 6
Fault Reports / Customer Letters advising RVA	Page 8
Settlement	Page 11
Briefcase Sage	Page 14
Telstra’s Muzzling Power 1	Page 17
Briefcase Saga, continued	Page 18
Short duration and 1800 call problems	Page 21
Telstra’s muzzling power 2	Page 23
Attempting to move on…but wait!	Page 26
Misleading and Deceptive Conduct	Page 28
Legal Professional Privilege	Page 31
Coopers & Lybrand Report	Page 35
Impracticable Cape Bridgewater BCI tests	Page 39
Protect This Information As Confidential	Page 42
Issues continue	Page 44
Fast Track Settlement Proposal	Page 47
More 1800/800 fault deliberations/More damning evidence	Page 51
Who Paid Grant Campbell?	Page 53
Telstra's 'Fast Track' Proposed Rules of Arbitration	Page 56

(Index a work in progress)

For the purpose of this chronology of events being used in a soon to be released publication of my COT story October 2022, I refer to myself as either Alan or Alan Smith. 

Unprecedented Deception.

Introduction

 

Alan Smith purchased the Cape Bridgewater Holiday Camp in November 1987, and the hand over of the business to Alan and his wife, Faye, took place in February 1988. There was no disconnection or reconnection of the phone or fax service; the accounts were simply transferred into their names, maintaining the same business names associated with the same contact numbers.

This is the chronology of events and documents pertaining to ‘Ring for Justice’, a book detailing the events that ensued

Setting the Scene

19^th April 1988: Telstra records one of Alan’s complaints Exhibit (AS 1). Alan had driven approximately twenty kilometres from the Camp into Portland to do some shopping when he realised he had left his shopping list behind, so found a public phone to ring his wife, Faye. He was stunned when, instead of reaching Faye, he twice reached a recorded message stating the phone had been disconnected. Alan rang Telecom’s fault centre and was told Telecom would investigate the problem. Finally, he decided to try to ring the camp again to check the purchases against the list. This time the phone was engaged and he assumed Faye was talking to a friend or, hopefully, a prospective customer.

When Alan arrived back at the camp Faye advised him she had not answered, or made any phone calls the entire time he had been gone.

26^th April 1988: Telstra records another one of Alan’s complaints (AS 1).

2^nd & 24^th May 1988: Telstra records two more of Alan’s complaints (AS 1).

One of the faults frequently experienced with the phone at the camp were call drop-outs.  If Alan or his wife had rung the person themselves, this was not such a great problem at first since they could just redial, although it did cost them another STD call. The problem became much worse if they couldn’t reconnect (and often the line remained dead for some time), or if the call was inbound (as the caller had to bear the cost of redialling). If the call had come in to the camp, particularly if it was one of the few business enquiries that managed to get through at all, it was very frustrating for Alan or Faye to wait and wait in the hopes of the caller ringing back, ultimately causing a loss of prospective clients.

2^nd & 6^th September 1988: Telstra continues to record Cape Bridgewater fault complaints.

The phone problems worsened. Often the line remained dead for some time after the preceding call had been terminated. This problem was not often noticed until the receiver was lifted to dial out of the business. (AS 1) 

6^th & 10^th January 1989: As the weeks went by Alan and Faye knew something was amiss as their new business should have been flourishing by now. They began to wonder if their decision to move to Cape Bridgewater was the right one. Family arguments ensued as Alan pushed to sell their beautiful family home in Melbourne and asked his wife, Faye, to give up her thriving dressmaking business in order to finance their new endeavour.

The business lost due to the phone issues was creating constant stress and certainly attributed to the breakdown of Faye and Alan’s marriage.

AUSTEL's 2/3 March 1994 draft Cape Bridgewater report (AS 487) offers enough evidence to show that Telstra had been aware of these problems, yet continuously denied them (AS 1).

It is important to note here that this Austel report (AS 487) was not released to Alan by ACMA (Australian Communications and Media Authority, and Austel’s new name) until 19 November 2007, some 13 years after it was drafted, and was only released as it was requested under Freedom of Information, and not released in full. This supposedly ‘secret’ and very damaging document is referred to many times throughout this chronology.

20^th October 1989: Local Telstra technicians had, by then, assured him there were no real problems with the Cape Bridgewater exchange, and that once the new RCM exchange was installed any lingering ongoing congestion problems would be eliminated.

Interception Issues / Criminal Conduct

3^rd June 1990: This newspaper article (see below) from The Australian (AS 765-g) states under the heading: Telecom ‘spying’ on its employees further supports pages 1 to 6 of the Australian Federal Police (AFP) transcripts and their concern that Telstra had been hand-writing the names of various people and businesses Alan had been calling on the side column of the CCAS data records which collates all incoming and outgoing calls to Alan's business (AS 765-f).

This newspaper article states

"Democrat Senator Jean Jenkins told the Senate last week Telecom’s activities including bugging workers’ homes.

She also said:

“… the accusations were contained in a statement by a former member of Telecom’s Protective Services branch. Senator Jenkins said the man claimed:

and some of those claims were:

• He and other Telecom employees and private investigators hired by Telecom did secret surveillance on hundreds of compensation recipients.
• He had been directed by his superior to use whatever methods to get the desired results, even when it was obvious the claimant was genuinely injured.
• Claimants have had a “C.CASS run” on their homes, which is a procedure where a computer can print out all numbers dialled on a home phone."

The hand-written notes in the right hand column of this CCAS data (AS 765-f) include, against various dates, the names of people that Alan had telephoned and/or faxed on the 31^st January 1994. e.g. GM” (Golden Messenger); AUSTEL; and the Ombudsman.  In one instance the name “Faye Smith” has been inserted when Alan had phoned his ex-wife. This supports the statements made by Senator Jenkins (above) regarding Telstra’s secret surveillance of their own employees in 1990 because here we have Telstra using the same practices in January 1994, and more disturbingly, while they were in litigation with Alan. 

Pages three to five of the transcript of Alan’s interview with the Australian Federal Police (AFP) on 26^th September 1994 (AS 765-D) relates to Telstra’s recording of who Alan phoned or faxed, and when. 

The AFP believed that Telstra had monitored Alan’s calls because all the people Telstra had recorded were associated with Casualties of Telstra (COT – refer glossary) issues. These three pages from the AFP transcript, together with other documents that Alan provided the AFP between February and November 1994, prove that Telstra had been listening in on private conversations prior and during his Government-endorsed arbitration. 

Australian Federal Police transcripts, (AS 765-D), also support Alan’s belief that, during late 1992 and early 1993 the Cape Bridgewater Holiday Camp was under surveillance. During this same period, Cathy Ezard was a professional associate of Alan’s, having previously visited his business with a social club from Ballarat. Cathy later signed a statutory declaration dated 23 May 1994, explaining a number of strange occurrences when she attempted to collect mail on Alan’s behalf from the Ballarat Courier Newspaper office (AS 22).

This declaration leaves questions unanswered as to whom collected Alan’s mail and how did they know there was mail to be collected at the Ballarat Courier mail office. On both occasions when this mail was collected by a third person, Alan had previously telephoned Cathy, informing her that the Ballarat Courier had notified Alan there was mail waiting to be picked up.

Fault Reports / Customer Letters advising RVA

15^th August 1991: This Telstra fault report Subject: Cape Bridgewater, although dated 2^nd February 1994, notes various points including the following:

• "LTS Melbourne were aware of the problem in early 1990 as Optocoupler measurements were documented on file date 13.02.90 (ref p34)
• The Cape Bridgewater Customer had documented complaints of call dropouts from 12/89 to 12/91 the later date some 7 months “after” the A735 loop mux had been replaced by the RCM (ref Source file)
• The question remains – why did it take one year for the Cape Bridgewater Loop Mux to be upgraded from the issue of the Work Spec….”  (AS 3)

Note: LTS is Local Telephone Switching

Thus supporting that Local Telephone Switching Melbourne (LTS) ‘were aware of the problem in early 1990,’ showing that Telstra knew Alan had major problems with his service over many years.

12^th February 1992: This hand-written letter from Gladys Crittenden, Haddon & District Community House Inc (AS 9-a) notes: – To Whom It May Concern states:

"Our group rang the Cape Bridgewater Camp on a number of occasions. Mainly from November 1991 through to February 1992, to try to book and finalize our camp arrangements. When I rang the number given to us we only got a taped message from Telecom to say that this number had been disconnected.  I wrote to the camp and told the Manager of the problem and to confirm his phone number. When we rang again we still got the same message as before about being disconnected."

2^nd July 1992: Telstra document Subject Grade of Service Complaint Mr Alan Smith notes:

"Our local technicians believe that Mr Smith is correct in raising complaints about incoming callers to his number receiving a Recorded Voice Announcement saying that the number is disconnected.

They believe that it is a problem that is occurring in increasing numbers as more and more customers are connected to AXE."  (AS 9-B)

[AXE being the Ericsson manufactured AXE telecommunication exchange equipment that is discussed further below]

12^th July 1992: This Telstra internal document (AS 705-B) states:

"Congestion between Cape Bridgewater and Portland had been prevalent as only five Junctions available. This situation was to be upgraded with the cutover of Cape Bridgewater RAX to an RCM parented back to Portland AXE 104."

This document explains that congestion meant incoming and outgoing calls intended for Cape Bridgewater could not be connected, because the five junctions were overloaded and, therefore, often resulted in a dead line. It has since been recorded in Exhibit AS DMR & Lanes Report that during the first three years of Alan’s business ownership there were only eight final selectors operating from the Rural Automatic Exchange (RAX), meaning that if four people from the 66 resident families in Cape Bridgewater at that time (mobile phones did not operate in Cape Bridgewater during this period) were on the phone at the same time this allowed only 4 free lines for the remaining 128 other residence (some with older children). Of course the lines were congested, and even more congested during holiday periods.

The alarming fact surrounding the statement in (AS 705-B) is when the RAX was cutover to the newer Remote Customer Multiplexer (RCM) Telstra forgot to program the 267 code into the Melu Melbourne Exchange that switched calls to Cape Bridgewater via Portland. It has been shown below using Telstra's own documents that this non-recognised code went undetected for 7 months - 7 months where 50% of ALL callers from Melbourne to Cape Bridgewater, when ringing Alan or anyone else in Cape Bridgewater, went unconnected.

24^th July 1992: This hand-written letter from Robert Palmer, Heywood Primary School – To Whom It May Concern notes:

"There have been several instances over the year when I have attempted, at length, to contact Mr Alan Smith at the Cape Bridgewater Holiday Camp and Convention Centre without success.

In the evenings of October/November 1991 I phoned at least six times to get the recording that the number was not connected. These calls were from my private home.

In school time during March/April 1992 I phoned to ascertain dates available for the Heywood Grade 4 camp and again received the message that the number was not connected." (AS 9-A)

1^st September 1992: Rosanne Pittard, Telstra’s General Manager, sends Alan a letter:

"Whilst our recent tests indicate that your service is now performing to normal network standards, I am initiating a further detailed study of all the elements of your service and the tests which have been conducted." (AS 12)

18^th September 1992: Mr Bob Beard, Telstra’s Service Manager, sends Alan a letter:

"We believe that the quality of your telephone 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.” (AS 13)

Telstra Freedom of Information (FOI) document (date) folio R01444 (AS 14) confirms that Telstra had documented people experiencing a false Recorded Voice Announcement (RVA) recorded message on Alan's service as it was not connected to Telstra's service lines from at least March 1992. This document also confirms that a Heywood resident, Mrs Saville, also complained of the same RVA fault when trying to ring Alan on 2/9/92. Document R01444, confirms the fault was not fixed until 7^th October 1992, three weeks after Mr Bob Beard had sent Alan this letter.

15^th October 1992: This Telstra record (AS 10) shows that Alan complained on 13 October 1992 that incoming calls to his business at 1:20 pm, 1:40 pm, 2:00 pm and 3:00 pm rang only once and when the receiver was picked up it was a dead line.

Regarding this, (AS 11) shows that a Portland Telstra technician advised management that:

"We had the ELMI disconnected at the RCM and was installing it at Mr Smith's house.

The CCAS showed no evidence of above."

(AS 10) are copies of two ELMI tape records showing that an ELMI was connected at Alan's premises on 13 October 1992 and that calls at 13.29.25 (approximately 1:30 pm) and 15.01.11 (approximately 3:00 pm) did register as coming into Alan's business.

Why was a local Telstra technician saying one thing, and documents Alan acquired under FOI saying something else?  This conflicting information has largely contributed to business lost between February1988 and the start of his arbitration in April 1994. But together, this conflicting information and the flawed 12 December 1994 arbitration Witness Statements (which are discussed later), would have influenced the arbitrator’s and certainly rendered Alan’s complaints of ongoing telephone and fax problems less serious.

23^rd November 1992: Don Lucas, Telstra's Commercial Vic/Tas Region, fault centre incorrectly advises Alan that the RVA MELU fault had only lasted for three weeks and had been fixed by 19^th March 1992. (AS 15)

Another Telstra FOI document K02643 confirms that Telstra considered this particular RVA MELU fault to be apparent from the cut-over from the old exchange to the new RCM at Cape Bridgewater, dates pertained to from August 1991 to at least 19^th March 1992 (AS 16)

In his letter, Mr Lucas further states that another software ‘register’ problem relating to RVA local faults had only lasted from 2^nd to 7^th October 1992, while other documents received under FOI R01444 (AS 15) confirm that Telstra knew that this fault was apparent from at least 9^th September 1992 to 7^th October 1992

Settlement

11^th December 1992: During this settlement process Alan provided Telstra several letters from clients who had documented their own phone problems when trying to contact the Cape Bridgewater Holiday Camp (AS 14).   

He also produced at least four letters he had written to the local rural fault centre at Hamilton, somewhere between June 1988 and September 1989, including four independent letters he had received from the operators of the Empress of Tasmania, Heywood Primary School, Collingwood Half-way House and the Haddon Community Health Centre. All of these organizations had experienced difficulties in contacting Alan because of the RVA phone message telling the caller, 'The number you are ringing is not connected'.

Affecting the outcome of this settlement was the alarming discovery that during 1993, the Regulator confirmed that Telstra’s ‘congestion’ tone was very similar to an engaged tone and, unless the caller was aware of the difference (and most non-technical people would not be aware of the difference) they would believe they were hearing an engaged signal when they were actually hearing a ‘congested’ signal.

Because the local Cape Bridgewater exchange used such old technology with so few lines, it is not surprising that it was often congested. This meant that it was quite likely that many prospective customers gave up trying to reach Alan, because they believed he had either ceased trading or not able to be contacted.

In one particular Telstra document FOI C04006 (AS 5) titled Telecom Secret, there is a reference to “... Mr Smith’s service problems…” being “…network related and spanned a period of 3 - 4 years.” and, on document C04008, there is another reference – “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.”

As stated, if they knew of the “poor grade of network performance” spanning “a period of 3 - 4 years”, how could they possibly have provided two guarantees that the service was adequately working two and three months before this settlement? 

Furthermore, document C04008 also states “with some difficulty to detect exchange problems in the last 8 months.” This means that the ‘difficulty to detect’ the problems dated back at least to April of 1992.  As a responsible corporate senior manager, how did Rosanne Pittard, Area General Manager, the person who signed this letter, ever allow the two ‘guarantees’ to leave her office?

2^nd April 1993: A letter sent in April 1993 to the Editor of the Herald-Sun Newspaper in Victoria, read in part: 

“I am writing in reference to your article in last Friday’s Herald/Sun (2nd April) 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.

The letter goes on to say:

I have 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 and also my home number and received no response - dead line.

I also rang around the end of February (1993) and twice was subjected to a piercing noise similar to a fax. I reported the incident to Telecom who also got the same noise when testing." (AS 1006)

Because of a number of reports regarding this ‘piercing noise’, a worker from Telstra’s Country Division arranged to have Alan's service switched to another system.  Unfortunately, this did not help.

5^th May 1993: Alan rang psychologist Mr Don Burnard’s office looking for support. Alan's conversation with his office was interrupted three times by phone faults.  Later, Alan received a letter from Mr Burnards office, dated 5 May 1993 saying: 

“I am writing to you to confirm details of telephone conversation difficulties experienced between this office and your residence mid-morning this day, 5 May 1993. 

At approximately 11.30am today Mr Alan Smith telephoned this office requesting to speak with Mr Don Burnard.  Mr Burnard was not available to take the call but during this time the telephone cut out three times. Each time Mr Smith telephoned back to continue the call.” (AS 1007)

Other rural subscribers wrote to various TV stations and newspapers supporting Alan's allegations that, with regard to telephone services, rural small-business people, as well as the rural general public, were not being supplied with a level playing field when compared to their city cousins.

One of these letters dated 23 August, 1993 is particularly interesting. It came from a company of Insurance Loss Adjusters in Ballarat, a rural city in Victoria, and was sent to the producer of “Real Life”, a TV current affairs program then being broadcast on Channel 7.  The Loss Adjusters wrote:  “Re Problems with Telstra”

"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 located in Ballarat and due to Telecom structure the majority of our local calls are STD-fee based. (STD calls are charged per time)

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 Telecom bill, which in total is up about 25% – 30% on the last bill.  This is odd because our work load in the billing period was down by about 25% and we have one staff member less than the previous billing period.” (AS 1008)

In the first twelve months of 1993, Alan received another eleven written complaints about his own service problems, and four small-business people calling themselves Casualties of Telstra (COT) was formed.

Well into 1993 things began to warm up for COT Cases: the then-Shadow Minister for Communications, the Hon Richard Alston, was showing an interest in their claims and a National Party Senator, the Hon Ron Boswell, who obviously had no political gain in mind, also became involved. Even though the National Party Senator was based in Queensland, and most of the members of COT were in Victoria, he has continued to offer his support.

Alan's local Member of Parliament (South West Victoria) the Hon David Hawker MP, was another who saw his ‘duty of care’ to his constituents, and so answered the call for help.  He continued to support Alan for more than fifteen years, but unfortunately was never able to resolve the ongoing telephone/fax problems at the holiday camp, for Alan and/or the new owners of the business.

While the politicians and Telstra conducted their secret deals behind closed doors, Alan continued to lobby Austel (Australian Telecommunications Authority) for assistance.  Between February and June of 1993, Alan provided more and more evidence of incorrect charging on his 008/1800 freecall service as well as the other three lines servicing his business.  Finally, AUSTEL's General Manager of Consumer Affairs asked Alan to record all the short duration calls and RVAs that were still being charged to his 008/1800 accounts, and were also showing up on the ELMI testing machine Telstra had installed at the local exchange.  Short duration calls were particularly irritating – the phone would ring once and stop, or if Alan or his staff picked it up after that first ring, they would find a dead line with no way of knowing who had tried to get through.

Not only was AUSTEL, now involved in the COT battle by late 1992, but the COT Cases were also dealing with the Commonwealth Ombudsman’s Office as well, so both these organisations were aware that Alan continued to ask Telstra, under the rules of FOI, to provide him with copies of the data from the testing equipment at the phone exchange that the camp was connected to, for the period of May to July 1993.

The Regulator’s General Manager of Consumer Affairs was becoming more concerned at the evidence COT members were producing; evidence of faults and incorrect charging.  These two problems — people not being able to get through and calls being charged incorrectly, come together in a note from a lady in Croydon who wrote regarding problems getting through to Cape Bridgewater on 22^nd May 1993. She explained how she continually reached a recorded voice announcement saying that Alan's phone had been disconnected. Alan's Telstra 008 account for that day showed a number of very short calls.  Apparently he was being charged for RVA messages, short duration and faults that Telstra calls ‘post dialling delay faults’! (AS 1012)

Briefcase Saga

On 3^rd June 1993: As a result of Alan's constant complaints to the Regulator, including incorrect charging. Telstra’s ‘Network Investigations’ department were finally involved and, for the very first time, Telstra investigators were sent to Cape Bridgewater.  At last, or so Alan thought, he would be able to speak directly to people who knew what they were talking about and get to the bottom of the issue.

Mr David Stockdale and Mr Hew Mackintosh told him nothing he hadn’t heard before. With nothing resolved, they finally prepared to leave and head back to town.  Alan's own transport was, by this time, long gone: sold to pay some of his mounting debts, and he also needed to go into Portland.  The technicians offered Alan a lift. 

After spending some time in Portland Alan got a lift back to Cape Bridgewater with a neighbour.  In his office he found that, one of the technicians, had inadvertently left behind a briefcase. Alan opened it to find out who actually owned it and the first thing he found was a file titled “SMITH, CAPE BRIDGEWATER”. 

After five gruelling years fighting with Telstra and being told various lies along the way, here was possibly the truth, as seen from Telstra’s perspective.  Some of the documents in this file were much too technical for Alan to understand or interpret. Some that he could decipher, however, dated back to the ex-gratia compensation payment he received on 11^th December 1992.  Then he froze.  He had turned the page to be confronted with the words “Problem 1”.

This document referred to Telstra being aware that the alleged three-week RVA fault in March of 1992 had actually lasted for ‘eight months’, not the three weeks Alan had been told on the day he accepted the compensation payment (AS 16). A copy of a similar document that Alan received in 2007 from now Australian Communications Media Authority (AS 15) supports that document.

The file also revealed that Telstra had known before Alan’s settlement, that major faults still existed in their network at the time of the settlement, but they did not disclose this to Alan during that settlement process (AS 5), (AS 9) and (AS 10).

Another not seen before document dated 24^th July 1992, and with Alan’s phone number in the top right corner, refers to Alan's complaint that people ringing him get an RVA “service disconnected” message, with a sentence reading: “Network investigation should have been brought in as fault has gone on for 8 months " (AS 1003).

A further document (AS 1004), dated 27 July 1992, discusses other problems experienced by possible clients who tried to contact Alan from Station Pier in Melbourne: some of these hand-written records go back to October 1991, and many of them were fault complaints that Alan had not recorded himself.  Telstra, however, has never explained who authorised the withholding of these names from Alan because if he had known he could have contacted them with an alternate contact number, Alan’s Melbourne agent, Peter Turner.  Employing an agent was the only alternative due to Telstra’s inability to fix the ongoing problems.

Some of the entries listed on document AS 1004 appeared to have been schools and social clubs, which not only means that Alan had clearly lost a number of very large bookings because they had not been able to get through, but of course, he lost any return bookings or referrals and repeat business. Even if only half those enquiries turned into bookings, all that business, and the repeat and/or flow-on business was still lost because Telstra wouldn’t or couldn’t fix the phone problems, and continued to refuse admission for ongoing faults.

The documents in the briefcase quickly informed Alan that they were aware of the impact Telstra’s inadequate service was actually having on his revenue base.

Document AS1005 supports that it was quite possible that the RVA problems Alan’s business experienced had actually lasted from at least August 1991 to at least July 1992 – and probably longer.  It is also clear from this internal Telstra memo that their Portland technicians supported this, because document (AS 1005) states that:

"Our local technicians believe that Mr Smith is correct in raising complaints about incoming callers to his number receiving a Recorded Voice Announcement saying that the number is disconnected.

They believe that it is a problem that is occurring in increasing numbers as more and more customers are connected to AXE."

The Portland Telephone Exchange, which was manufactured by Ericsson, was commonly known around the word as an AXE exchange and, as will be explained later in this story, Telstra was well aware at the time that other countries were experiencing major lock-up problems with the AXE.  They also knew that this lock-up fault could have created anything up to 15% of lost calls. This Telstra internal email FOI folio A13980 dated 24 February 1994 from a Kevin Dwyer to Peter Gamble (AS 1009) notes:

“You are quite correct in your thought that the anecdotal reference applied more to AXE than ARE-11. 'Lockups' are generally well-known as a problem in AXE exchanges, not only in Australia but in overseas countries as well.”

The email goes on to say:

“Ericsson are said to have suggested that call loss could be up to 15%.” 

It is perfectly clear that Alan was certainly misled and deceived by Telstra as part of his 11 December 1992 settlement, and it eventually became equally clear that he had actually been misled almost from the very first complaint he registered in April 1988 as well

9^th June 1993: this letter to Telstra from AUSTEL is part of the briefcase saga, as it confirms that AUSTEL was concerned that Alan had been misled and deceived by Telstra during the aforementioned settlement.  On page one, paragraphs four and five, when referring to Alan’s allegations that Telstra had withheld this information from him on 11^th December 1992, this letter states:

"Further, he claims that Telecom documents (found in the briefcase) contain network investigation findings which are distinctly different from the advice which Telecom has given to the customer 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 comments 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 his inspection.

It goes further to say:

In light of Mr Smith’s claims of continuing service difficulties, I will be seeking to determine with you a mechanism which will allow an objective measurement of any such difficulties to be made." (AS 27)

Telstra’s Muzzling Power 1

9^th June 1993: A TV news program was clearly also a target for Telstra's executives to muzzle the media regarding the validity of the COT Cases claims.  This Telstra internal email dated 16 June, 1993 FOI folio A04646 (AS 956) reports:

"Good news re channel nine news. Haven’t checked all outlets but as it didn’t run on the main bulletin last night, we can be pretty certain that the story died the death. I wish I could figure which phase it was that convinced Jason Cameron not to proceed. Might have been one of Jim Holmes' pearls..."

Jim Holmes being the Telstra Corporate Secretary, the reader by now may well be asking themselves, what type of pearl had been cast by Jim Holmes? Were they pearls of wisdom, financial pearls, or another type of pearl that convinced a respected journalist to drop a story?

During meetings following this casting of pearls, Mr Holmes was assigned to take charge of deflecting allegations about a fellow Telstra executive, Chris VonWiller, for misleading a Minister concerning the true extent of the faults associated with the telephone exchange that two COT businesses had been connected to. These two Telstra executives were also members of the Telecommunications Industry Ombudsman board (TIO) when Mr VonWiller misled the Minister, and Mr Holmes was assigned to deflect this serious matter. Again, Jim Holmes and Chris VonWiller were even allowed to attend TIO Board meetings when the TIO was discussing the progress of the TIO-administered COT arbitrations (AS 232-A).

Briefcase Saga, continued

One of the more important documents left in that briefcase provided evidence that discussed the manner in which they settled with Alan in December 1992. It indicates they were fully aware that there were still major communication problems affecting the viability of his business endeavours. This is the same ‘briefcase’ evidence that Telstra later told Alan they had also copied on to AUSTEL for assessment. Then, on 27 August 1993, Mr Holmes wrote to Alan about the same ‘briefcase’ documents, noting:

"Although there is nothing in these documents to cause Telecom any concern in respect of your case, the documents remain Telecom’s property and therefore are confidential to us. I would also ask that you do not make this material available to anyone else".

Telstra’s FOI document dated 23 August 1993 and labelled as ‘folio R09830’ (AS 73-A) with the subject listed as ‘The Briefcase’ is alarming to say the least. This document, which had been copied to Mr Holmes, notes:

"Subsequently it was realised that the other papers could be significant and these were faxed to Craig Downing 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".

The word ‘alarming’ is used in relation to this last ‘briefcase’ document because John Pinnock, the TIO, later told the Senate Estimates Committee that COT/TIO-administered arbitration issues were openly discussed at regular monthly TIO Council meetings, which suggests that they would have been discussed at monthly TIO Board meetings too.

The COTs will never know for sure whether Dr Hughes did not find against Telstra on this ‘briefcase’ issue, because he was influenced by Mr Holmes’ pearls, who was, at the time, a member of the TIO Board.

Further, even though Alan’s claim advisor (who had been a witness to the Fitzgerald Royal Commission into Police Corruption in Queensland and a National Crimes Investigation Detective) proved to Dr Hughes how unethical Alan’s 11 December 1992 Settlement process had been, Dr Hughes’ arbitration award report regarding Alan’s case still found in favour of Telstra’s defence regarding that earlier settlement. 

Then, secret Government Regulatory report dated 3 March 1994 (AS 487), which was only supplied to Alan from the Government Regulator in November 2007, condemned Telstra’s 11 December 1992 settlement at point 45 and 46 noting:

"File evidence clearly indicates that Telecom at the time of settlement with Smith had not taken appropriate action to identify possible problems with the RCM. I March 1993 a major fault was discovered in the digital remote multiplexer (RCM) providing telephone services to Cape Bridgewater holiday camp.  The fault may have been in existence for approximately 18 months. The fault Given the nature of Mr Smith's business in comparison with the essentially domestic services surrounding subscribers, Mr Smith would have been more affected by this problem due to the greater volume of incoming traffic than his neighbours.    

Telecom's ignorance of the existence of the RCM fault issues raise a number of questions in regard to Telecom's settlement with Smith. For example, on what basis was settlement made by Telecom if this fault was not known to them at this time? Did Telecom settle with Mr Smith on the basis that his complaints of faults were justified without a full investigation of the validity of these complaints, or did Telecom settle on the basis of faults substantiated to the time of settlement? Either criteria for settlement would have been inadequate, with the latter criteria disadvantaging Mr Smith, as knowledge of the existence of more faults on his service may have led to an increase in the amount offered for settlement of his claim".   

Once again, for reasons known only to Dr Hughes, his ex-Telstra employee/technical advisor favoured Telstra’s arbitration defence in relation to this 11 December 1992 Settlement issue and so Dr Hughes recorded, in Alan’s award, that the RCM fault had only lasted “…at least 50 days (probably 70) in early 1993.” (AS 992).  The DMR & Lane report, at point 2.9, also records 50-70 days (AS 993). 

In November 2007 however, under FOI from ACMA, Alan finally received a copy of AUSTEL’s 3 March 1994 findings against Telstra (AS 487), and the truth was revealed:  the RCM digital fault had existed within the system for at least eighteen months, not 50 to 70 days, as recorded by the arbitrator. While downplaying this serious and ongoing fault was bad enough, Dr Hughes’ award and the DMR & Lane findings included even more favouritism by repeating Telstra’s defence almost word for word. (Arbitration issues are discussed in full later.)

At point 1 on page 33 of Dr Hughes’ award (AS 922) he notes that lightning damage to the RCM on 21 November 1992 affected the service:

“… for 4 days before restorative action was taken.”

At point 2.8, on page 26 of the DMR & Lane report , in relation to the same lightning strike of 21 November 1992, they note:

“The condition affected services for 4 days, before restorative action was taken, which may have been less than successful, refer 2.9”.

Then in AUSTEL’s secret findings for the same fault, at their point 23 (AS 487), they note: 

"It is difficult to discern exactly who had responsibility for Mr Smith’s problems at this time, and how information on his problems was disseminated within Telecom. Information imparted by the Portland officer on 10 February 1993 of suspected problems in the RCM “caused by a lightning (sic) strike to a bearer in late November” led to a specialist examination of the RCM on March 2 1993. Serious problems were identified by this examination."

It may never be possible to calculate what Dr Hughes would have awarded Alan if he had known that this fault lasted for eighteen months rather than 50 to 70 days, or how much he would have awarded Alan had he known that the other four-day lightning strike fault had been ongoing from November 1992 to March 1993. What we do know is that AUSTEL’s report (AS 487) shows that, for around seven months, until Alan’s complaints were finally acted upon, Telstra had somehow forgotten to program the 055 267 telephone prefix for the Cape Bridgewater exchange into the Lonsdale Telephone Exchange in the centre of Melbourne. 

AUSTEL has since accepted that 50% of all callers trying to reach Cape Bridgewater during these seven months would have gone through the Lonsdale Exchange and would have been greeted by a recorded voice message telling the caller that ‘the number you are ringing is not connected’, thereby inferring that Alan was no longer trading.  In relation to this same recorded message however, the arbitrator’s award only reported that the incorrect recorded message caused between 20 and 33% of calls to be lost and it only lasted for: “...16 days and possibly longer”.

Short duration and 1800 call problems

18^th June 1993: Julian Cress from 60 Minutes Channel Nine Television sends Alan a facsimile noting:

"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 on your direct line it was constantly engaged." (AS 24)

In an in-confidence internal Telstra memo dated 25^th November 1993, on the subject of short duration calls on Alan's phone lines, Telstra states:

"Mr Smith is obviously well aware that customer premises equipment (CPE) is a significant source/cause of charging and billing disputes, particularly those involving short calls which the customer believes were unsuccessful and should not be charged.  Telephone answering machines, facsimiles and call diverters typically are at the centre of these disputes".

Alan provided evidence to both AUSTEL and the later arbitration process proving that neither his answering machine nor his fax machine could have answered many of these short duration calls. This leaves call diverters as the only ‘culprit’ possible and, since Alan had not authorised any call diversion on any of his lines, this raises the question: Who then had authorised the diversion of at least some of Alan's incoming calls?

The true level of short duration and post dialling delay faults were well known to Telstra as early as May 1993, but they chose to hide the problems and continue to collect revenue from their customers regardless of the level of customer complaints.  In some cases, Telstra forced customers to pay incorrect accounts by threatening to disconnect the customer’s phone lines, even though the customer complaints may well have been quite real.

A Telstra FOI document folio H36291, dated 11^th October 1993 (AS 35), states

"I am receiving a disturbing number of instances where the 1800 prefix ‘does not work’ in the network.  Given we are now part way through a major (direct mail) National campaign launching freecall 1800 statewide, I need to know the extent of the problem of missed areas across the country".

Another FOI document dated 1^st November the same year, Telstra folio H36293, goes even further (AS 45-A) noting: 

"All Admin groups are being inundated with complaints from customers who have advertised their numbers as 1800 but their customers are simply unable to get through to them. I have spoken to our fault staff out at Waverley who are also being inundated with the same complaints."

An even more alarming Telstra FOI document folio H36178 indicates that, even while being fully aware that they were promoting a faulty service, which would not provide the service as was adverted, Telstra continued to charge their customers for calls that they knew were not connecting correctly, where the caller reached a dead line, thought they had dialled incorrectly and hung up, but the charge still registered at the other end – on the 1800 customer’s account.  This same document actually discusses concerns: 

“…that the matter requires fixing at a National level, not just on a fault by fault basis”

and further notes that it:

“… also raises the question whether we should be actively promoting 1800 in the circumstances".

Telstra’s muzzling power 2

7^th July 1993: Another Telstra internal email, this one FOI folio C04054 (AS 957), shows that at about this same time, a number of Labor Party Senators were becoming more and more concerned at what COT members were uncovering.

Other FOI documents show that Telstra were not reporting the truth of the situation in the early months of 1993. It is also clear from more FOI documents that it is highly likely that some newspaper journalists were approached by Telstra and asked to ‘kill’ a story about the COT problems with their phone faults. This one, entitled “Cot Wrap-Up”, states, in part:

“I advise that Clinton be targeted for some decent Telstra exclusive stories to get his mind out of the gutter. He will write a nasty piece in tomorrow’s (thursday) paper. He will certainly mention the confidentiality clauses and I fully expect a call from him at home tonight.”

It goes further to say:

"I think it should be acknowledged that these customers are not going to become delighted. We are dealing with the long-term aggrieved and they will not lie down.

Further, I propose that we consider immediately targeting key reporters in the major papers and turn them on to some sexy “look at superbly built and maintained network” stories.”

We are left to wonder just who ‘Clinton’ was and why his mind was considered to be ‘in the gutter.'

12^th July 1993: Telstra FOI documents M34204 - M34205 (AS 18) confirm that Alan had been complaining of cut-offs on the phone after only talking for a few seconds in early January to March 1993.

This document shows that Telstra states there were 45,993 degraded minutes yet, in the 30^th April 1995, Arbitration Technical Report, DMR and Lane refers to only 405 degraded minutes.  The Technical Report also claims there were only 43,500 errored seconds (ES), while the Telstra document shows 65,535.  It seems that, for some unknown reason, DMR and Lane played down the actual number of faults.

At this point it is important to raise the issue of an Arbitration Witness Statement that was sworn by a local Telstra employee, dated 12^th December 1994, which Telstra used in their arbitration defence of Alan's 1994 arbitration claim. In part (2) of this Statement, Mr Stokes states: 

“I transferred to Network Operations Portland in 1989 and between 1990 and 1994 I was responsible for maintaining switching equipment at the Portland exchange.” 

At point (8), Telstra further states: 

“After the Portland to Cape Bridgewater RCM systems were installed, I became aware that the performance of the systems could be measured using the facility known as CRC.  I checked the CRC error counters regularly between the date the RCM systems were installed and February 1994, when I left Telecom.  Checking the CRC counters in this way was normal maintenance practice.  I can recall checking the CRC counters prior to March 1993.  When I checked the CRC counters pre-March 1993, I did not observe any errors that could have impacted upon the telephone service provided to cape Bridgewater customers.  A typical reading for each RCM system was 5 to 10 errored seconds, no degraded minutes and severely errored seconds” (AS 20)

If Telstra did check the RCM regularly, as he states, why didn’t he notice that the fault alarm system had not been installed after the RCM replaced the RAX exchange in August 1991, twenty months before?  Furthermore, this Telstra technician's statement does not correlate with a report made after a visit to the Portland exchange by the Melbourne Pair Gain Support Group which states: “At this stage we had no idea over what period of time these errors had accumulated.”

If this Telstra Witness Statement is correct in that he “… checked the CRC counters pre-March 1993 and (I) did not observe any errors”, then 65535 errored seconds and 45993 degraded minutes would have had to have accumulated in the three days between 28^th February and 2^nd March, which is almost impossible.

Up to this period Alan had received thirty-six letters from different individuals, as well as more than forty other complaints from people who had tried, unsuccessfully, to respond to Alan's advertisements for his business. The Hadden & District Community House wrote in April 1993: 

"problems with contacting you by phone.  Several times I have dialled (my phone number) and received no response  — dead line.  I have also experienced similar problems on your 008 number. Our youth worker, experienced similar problems while organising our last year’s family camp, over a six month period during 1991/1992".

As more and more letters like this arrived in Alan's office he began to seriously consider that Telstra senior executives were hiding the true facts of the problems at the Cape Bridgewater exchange. Surely they must have been aware by now that he was not inventing the problems he was complaining about?

In Austel’s (now ACMA) secret report mentioned earlier (AS 487), they uncovered 65,535 errored seconds and 45,993 degraded minutes at the Cape Bridgewater RCM unmanned roadside exchange between 1992 and 1993.

AUSTEL’s findings for this single complaint recorded:

"Some important questions are raised by the possible existence of a cable problem affecting the Cape Bridgewater Holiday Camp service. Foremost of these questions is why was the test call program conducted during July and August 1992 did not lead to the discovery of the cable problem. Another important question is exactly how the cable problem would have been manifested in terms of service difficulties to the subscriber".

12^th July 1993: a newspaper article from the Portland Observer Newspaper is headed ‘Network Complaints Taken Up by MPs’ (AS 825), and notes:

"Problems highlighted by Cape Bridgewater Holiday Camp operator Alan Smith, with the Telecom network have been picked up on by not only other disgruntled customers but Federal politicians.

Having suffered a faulty telephone service for some five years, Mr Smith’s complaints had for some time fallen on deaf ears, but it now seems people are standing up and listening.

Federal Member for Wannon, David Hawker, described the number of reports of faulty and inadequate telephone across Australia as alarming.

Mr Hawker said that documents recently presented to him showed that the problems people had been experiencing Australia wide had been occurring repeatedly in the Portland region". 

Attempting to move on…but wait!

By June/July 1993, the public were becoming interested in what they were hearing about; The COT Cases battle - four Australians had taken on the Telstra Corporation.

At the camp in Cape Bridgewater, Alan acquired a logo especially for the over-forties singles club, and his Community Groups, which he was calling “Country Get-A-Ways”, and he hit the road with a vengeance, marketing a range of different weekend holidays. He had organised 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 and a Saturday morning shopping tour to Mt Gambier, both in South Australia. This meant Alan was able to market the holiday periods in both Victoria and South Australia.

Numerous testimonials from hopeful customers trying to make a booking at Alan's venue from 1988 up to this period is already well documented in AUSTEL's report (AS 487). At point 9, 10 and 11 in their reporting AUSTEL notes:

"During the past five years Mr Smith has received many testimonials from other network users such as community groups, health and welfare agencies, school and individuals which have advise of continuing difficulties contacting the camp. These statements support Mr Smith's claims of service problems of Mr Smith.

An important point in relation to Mr Smith's service is that he is operating a business service in an area which is predominantly that of a residential and/or farming community. Therefore both the nature, volume and origin of calls received by Mr Smith is comparison with those of his neighbours would be markedly different…

Often calls to the Cape Bridgewater Holiday Camp would be from people previously unknown to Mr Smith, who in comparison to other callers to Cape Bridgewater would be less likely to initiate further contact should they have difficulty in contacting the Camp…"

So here it was, mid-1993, and still hardly any phone calls were getting through to Alan at the Camp.  What he couldn’t know was that less than twelve months later, AUSTEL would discover that what Alan had been telling Telstra was the truth, but that AUSTEL would hide most of those truths from the relevant Ministers, from Alan and from the arbitrator.

All Alan knew was that his business was sinking fast and so he stepped up the marketing of the camp and the singles-club weekends; he visited numerous recognised social clubs around the Melbourne metropolitan area and spoke personally to the people in charge and in fact, over the next few weeks, he spoke to the Phoenix Social Club in Camberwell, the Australian Social Centre in Hartwell, Frenze-In-Deed in Mont Albert and Capers in Knox City, as well as visiting numerous other singles organisations in Ballarat and Warrnambool, both large country centres in Victoria.

Further newspaper advertising followed, with ads placed with the Leader Newspaper group in Melbourne.  This local newspaper group covers twenty-three different metropolitan areas around Melbourne. Ads also went into the local newspapers for a number of large regional centres around Victoria and South Australia, including the Geelong Advertiser, the Warrnambool Standard, the Ballarat Courier News, the Horsham Wimmera Times, the Colac Local News, the Mt Gambier-Border Watch and others. 

But complaints about the phones continued. People had enormous trouble getting through to the camp and, although some obviously persevered, it’s impossible to know how many simply gave up trying.

12^th August 1993:  This letter (AS 34 A) from Ms Elisie Espinoza from a singles club to Alan describes the constant engaged problems she experienced when trying to book a weekend during April and May 1993. Exhibit (AS 34 -B) is a Telstra FOI document K03870 dated 17^th June (assume 1993) refers to the same Elisie Espinoza and her friend Rita Stenoya. This document does not only record the two personnel phone numbers of these two ladies, it also confirms Telstra was fully aware of the times Alan's office assistant left the business when Alan went to Melbourne.

Ms Espinoza writes:

"I tried to ring you in order to confirm our stay at your camp site. However when I did this I found it impossible to get through since it was engaged for several hours.  I tried to ring later but encountered the same signals, on the 10th of August around 7:30 pm to 8.30 pm.
I believe you have a problem with the exchange and strongly advise you contact Telecom.
Do you remember the same problem happened in April and May? I apologise but I have made arrangements with another camp".

17^th August 1993: this Telstra file note FOI folio K03096 (AS 35-A) is related to the Daylesford Community House (Victoria) and explains how the line was continually dead when they rang Alan's 1800 number four times on 17^th August 1993. And how, even so, Alan was charged for these four calls, all in the space of a single twenty-eight-second period (AS 35-B). 

Since the malicious-call tracing equipment (which locked the line up for 90 seconds) was not removed from Alan's phone line until 18^th August 1993 (AS 23-E), how could the Community House have been connected four times in such a short period of time?  It is clear from other FOI documents, and has been supported by Telstra technical consultants, that no call could have connected under these circumstances at any time between 26^th May and 19^th August 1993, while the call tracing equipment was still connected. So, where were these calls diverted to?

The group from the Daylesford Neighbourhood House finally arrived for their holiday in January 1994. Later, two letters arrived from members of this group complaining that my customer coin-operated gold phone service, provided on our property, was most unsatisfactory. They wrote that the phone was taking money ‘under false pretences’ and not connecting long enough for the caller to properly complete their calls. Both wrote that the line ‘went dead’ and they both supplied their names and addresses (AS 35-C)

Misleading and Deceptive Conduct

During this period Ann Garms, Graham Schorer, and Alan met with Senator Richard Alston, Shadow Minister for Communications, in his St Kilda Road (Melbourne) office, to discuss their ongoing communication problems, Telstra’s misleading and deceptive conduct in relation to those services and, in Alan’s case, the way Telstra had deliberately misled and deceived him during his December 1992 settlement process.

In the years to come, the COTs found Senator Alston to usually be quite stony-faced when discussing such matters, but this time when Alan showed him some of the documents he had found during the briefcase saga, the Senator changed his position and was not only showing empathy for Alan’s situation, but was clearly quite angry about Telstra’s behaviour during Alan’s December 1992 settlement.

Graham then tabled another document that showed how Telstra had knowingly sold him faulty equipment, even though both Telstra and the manufacturers, Phillips, had known it was faulty for at least six months before they had installed it at Graham’s business (Golden Messenger).

Senator Alston was then quite clear as he explained that, while he believed that Telstra technicians and senior management could perhaps be excused for making occasional mistakes in such a large corporation, for them to knowingly deceive Australian citizens so deliberately could not be excused.

Alan and Graham were then advised that if Telstra did not address this misleading and deceptive conduct in a manner befitting a government-owned corporation, then ‘heads would fly’ and Senator Alston was adamant that he would raise these issues with Robin Davey, Chairman of AUSTEL.

2^nd September 1993:  Senate Estimates Committee (Hansard) – When Senator Richard Alston, Shadow Minister for Communications, and the then Minister for Communications, Senator Bob Collins, questioned Mr Robin Davey, AUSTEL Chairman, regarding this matter it was clear that Mr Davey had confirmed that, if AUSTELS’s COT investigations found deliberate ‘misleading and deceptive conduct as distinct from sheer incompetence’ by Telstra towards the COT claimants, then AUSTEL would pass the matter on to the Trade Practice Commission. Mr Davey stated to Senator Collins (AS 736)

"We have legal advice which I am quite prepared to make available to you, Senator – I apologise that I have not got a copy with me at the moment – to the effect that, if we were to find misleading and deceptive conduct, as distinct from sheer incompetence, then we could direct Telecom to engage in an assessment process to assess the quantum. Having assessed the quantum, we do not have the power to enforce the quantum, but I am sure that at that point that would not be necessary. I think there would be such a moral persuasion at that point".

In AUSTEL’S report secret draft (AS 487) against Telstra in relation to Alan, which AUSTEL provided to Telstra in March 1994 during the COT arbitrations (see [P-7] (AS 495), showed that AUSTEL did find Telstra had deliberately misled and deceived both claimants. So why did the Government Regulator conceal this information from the arbitrator?

At point 5.10, in the arbitrator’s award in Alan’s case he notes:

The AUSTEL formal report notes a number of instances of misleading conduct by Telecom of the nature described by the claimant, but not specific to the claimant as indicated earlier, the claimant has not articulated the legal bases for his claim, nor did I expect him to do so. Had he done so, however, he may well have alleged some instances of misleading conduct by Telecom of the nature set out in the AUSTEL report. (AS 487)

It seems that Senator Alston’s letter to Mr Davey has answered the two questions raised by Alan above, i.e.

1. Why did AUSTEL’s final report not state publicly that Alan’s phone problems were still ongoing, and
2. Why did that same report not declare specifically which COT cases Telstra had mislead and deceived?

If AUSTEL had included those more adverse findings against Telstra in their formal report, this would have immediately led Senator Alston to call for a Senate Select Committee investigation into these matters, on behalf of the then-opposition party. It is therefore clear, that the formal AUSTEL COT Cases report that was used as evidence in the COT arbitrations was tainted, ‘got-at’ or ‘cleansed’ well before the COT Cases received their copies.

7^th September 1993:  This letter from Robin Davey, Chairman of AUSTEL, to Jim Holmes, Telstra’s Corporate Secretary (AS 835), confirms that even when legitimate testing was carried out on the phone lines of the COT claimants (see also AUSTEL’s reference to the poor testing regime by Telstra in their report) shows Telstra’s testing equipment connected to Alan’s service lines caused additional problems. In fact, all the various types of testing equipment that was installed on Alan’s service lines appeared to have created extra problems, suggesting that at least some of the problems experienced by Telstra’s Peter Gamble and his Melbourne counterparts, during Telstra’s 29^th September 1994, Cape Bridgewater Holiday Camp Service Verification Testing (SVT) could have been caused by Telstra’s faulty SVT equipment.

AUSTEL did not take exhibit (AS 835) into consideration when they allowed Telstra to submit known flawed Cape Bridgewater Holiday Camp (SVT) results as arbitration defence documents, even though the letter’s author, AUSTEL’s Chairman Robin Davey clearly states in it’s second paragraph:

“Your ‘two bob each way’ letter of 31 August 1993 outlining how Telecom is to monitor the COT Cases’ services in response to AUSTEL’s direction of 12 August does little to inspire confidence in Telecom’s approach to the issue.

The offer to provide…(specific testing)…might be interpreted as nothing more than an attempt to lay a foundation for disowning the tests if they appear to support the COT Cases.”

Point 5.32 on page 91 of the AUSTEL COT Cases Report notes:

"Its omission as far as the initial ‘settlement’ of the original COT Cases were concerned meant that there was continued dissatisfaction with the service provided without any steps being taken to rectify it. This inevitably led to dissatisfaction with the initial ‘settlement’ and to further demands for compensation. To avoid this sort of problem in the future, AUSTEL is, in consultation with Telecom, developing –

a standard of service against which Telecom’s performance may be effectively measured

a relevant service quality verification test".

Legal Professional Privilege

During September 1993, Telstra announced they would not address anymore of Alan's telephone complaints unless he first registered them in writing with their external lawyer, Denise McBurnie, of Freehill Holligdale & Page. Unfortunately, Alan didn’t realise that Telstra thought this process would mean that all technical documents connected to any complaints Alan registered with Ms McBurnie would then, as far as Telstra was concerned, be classified under Legal Professional Privilege (LPP).

10 September 1993: this Telstra FOI document folio N00749 to N00760, from Denise McBurnie of Freehill Hollingdale & Page to Ian Row, Telstra’s Corporate Solicitor, relates to strategies that were about to be used in dealing with the COT cases. Folio N00749 is the first page of this strategy (AS 923) noting: 

"Both Freehill’s and Duesbury’s would be happy to assist you should any further presentations to Telecom management be required on any of the matters raised in the issues paper or with regard to any other matters concerning management of “COT” cases and customer complaints."

This document is important because Ms McBurnie names Duesbury's as assisting Freehill's in this matter, and Duesbury's was also involved with the employment of private investigators (paid by Telstra) in relation to Graham Schorer, and possibly other COT claimants.

It is clear from folio N00750 that Ms McBurnie has singled out four of the COT Cases businesses: Golden Messenger, Tivoli Theatre Restaurant, Japanese Spare Parts and the Cape Bridgewater Holiday Camp, in which Legal Professional Privilege (LPP) was to be used to conceal documents from those four cases (AS 923), as they state these claimants:

“…high level of understanding (acquired by experience) with FOI procedures and the procedures involved in accessing Telecom documentary information.”

appeared to be perhaps threaten their misleading ways.

In June 2000, renowned Legal Professional Privilege expert, Associate Professor Suzanne McNicoll, provided the COT claimants (AS 924) with the following legal opinion regarding the Freehill's ‘COT Case Strategy’ i.e.

"There is also some potential prima facie evidence of (4) i.e. knowingly making false or spurious claims to privilege. For example, there is potential structure set up for the possible abuse of the doctrine of legal professional privilege in the faxed document entitled “COT” Case Strategy, marked “Confidential” dated 10 September 1993 from Ms Denise McBurnie of Freehill Hollingdale and Page, Melbourne Office to Mr Ian Row, Corporate Solicitor, Telecom Australia.”

Telstra FOI document folio P03022 (AS 925) is an internal email dated 23 September noting:

"In the current climate Telecom needs to be particularly careful with its correspondence to the CoT customers. I have engaged Denise McBurnie from Freehills to participate on an “as required” basis in this matter and it is appropriate that all correspondence from the CoT (and near CoT) customers should be channelled through Denise for either drafting of the reply from Telecom or for the reply direct from Freehills as our agent.

It goes on to say:

'Would you please ensure that with all customers that are, (or have the potential to become) serious complaints, correspondence is processed through Freehills with initial acknowledgement by the Region."

As already mentioned on page 21, under chapter ‘Short duration and 1800 call problems,’ Telstra already knew of these existing problems, but continued to conceal them and continued to incorrectly charge their customers for calls that were never received.

5^th October 1993: Robin Davey, AUSTEL’s Chairman provides a draft of the agreement to be used in the four COT Cases, for Graham Schorer (Golden Messenger), Ann Garms (Tivoli Theatre Restaurant), Maureen Gillan (Japanese Spare Parts) and Alan Smith (Cape Bridgewater Holiday Camp), Fast Track Settlement Proposal to Telstra’s Ian Campbell, Managing Director, Commercial  (AS 927) noting:

"Finally, if the attached letter (Attachment 'D') dated 7 July 1993 from Freehill Hollingdale & Page to one of the COT Cases’ solicitors is indicative of the way that Freehill, Holingdale & Page have approached the COT Cases in the past, I would be more than a little concerned if they were to have a continuing role."

It is important to note that during the first week of January 1994, the COTs advised Warwick Smith, the TIO, who was also the administrator of both the Fast Track Settlement Proposal (FTSP) and the Fast Track Arbitration Procedure (FTAP), that AUSTEL’s Chairman, Robin Davey, had also assured the COTs that Freehill’s would no longer be involved in their Fast Track Settlement Proposal. An internal Telstra email (FOI folio C02840) from Greg Newbold to various Telstra executives (AS 928) notes:

"Steve Lewis (Australian Financial Review news reporter) is following up on his own yarn NOT with the Davey letter to the minister but with the Davey letter to the CEO raising concerns about our use of Freehills."

Later, between January and March 1994, when the COTs again spoke to Warwick Smith concerned that Telstra had now appointed Freehills as their FTAP defence lawyers, the TIO’s response was that it was up to Telstra who they appointed as their arbitration lawyers, even though Alan also advised the TIO, in March 1994, that he was still having to register his phone complaints through Freehills and had still not been provided with any of the technical data to support Freehill’s assertions that there was nothing wrong with his telephone/fax service. This was a grave conflict of interest situation.

During and after Alan's arbitration he raised his concerns that the arbitrator had not addressed Freehill’s submission of Telstra witness statements that had only been signed by Freehills and not by those who were actually making the statements. Nothing was transparently done to assist Alan in this matter other than to send this witness statement back to be signed by the alleged author making the statement.

Alan’s appeal lawyer (Law Partners of Melbourne) was not only staggered to learn about this witness statement issue, but was also staggered to learn that none of the arbitration fault correspondence that had been exchanged between Freehills, Telstra and Alan was ever provided to Alan as it should have been according to the rules of discovery. In fact, Alan’s lawyer suggested that perhaps Telstra had originally appointed Freehills to be Alan’s designated fault complaint managers so that any of that correspondence would form what Telstra believed to be a legal bridge, so that Alan’s ongoing telephone fault evidence could be concealed under Legal Professional Privilege (LPP) during his arbitration.

Telstra’s continued use of Freehills throughout the COT arbitrations and the arbitrator’s refusal, in Alan’s case, to look into why Telstra was withholding technical data under LPP, suggested, at the time, that the arbitrator was not properly qualified as he didn’t seem to understand that Telstra could not legally conceal technical information under LPP.

As this story reveals, Dr Hughes was, in fact, not a graded arbitrator at all, and was not registered as an arbitrator with the arbitrator’s umbrella organisation, then called the Institute of Arbitrators Australia.  

19^th October 1993: This document from Denise McBurnie (Freehill's) to Telstra's Don Pinel titled Legal Professional Privilege In Confidence FOI folio A06796:  includes the following statements:

"Duesbury & FHP continuing of evaluating (blank) claim - final report to Telecom will be privileged and will not be made available to (blank).

Telecom preparing report for FHP analysing data available on (blank) services ie. (CCAS, Leopard, CABS and file notes) – this report will be privileged and will not be made available to (blank)." (AS 930)

In other words, Telstra FOI documents (folio R00524 and A06796) confirm Telstra were already hiding technical information from the COT claimants under Legal Professional Privilege. It is important to note here that Telstra had directed Alan to register his 'ongoing' telephone faults, in writing, to Denise McBurnie of Freehills in order to have those issues addressed. Alan found this not just time consuming, but also very frustrating, because by the time he received a response to one complaint he already had further complaints to register. It wasn’t until Graham and Alan entered the arbitration process that it appeared as though Telstra were using Freehills’ Legal Professional Privilege strategy to hide numerous important technical documents from the claimants, including the very same 008/1800 fault complaints that Alan had registered through Freehills, according to Telstra’s directions.

29^th October 1993: this Telstra FOI document folio K01489 Exhibit (AS 767-A) 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."

The hand-written note in the bottom right corner of Exhibit AS 767-B, which states: “Stored in Fax Stream?” suggests that faxes intercepted via Telstra’s testing process are stored in Telstra's Fax Stream service centre so the document can be read, at any time, by anyone with access to Telstra’s fax stream centre. The Scandrett & Associates report proves that numerous COT arbitration documentation was definitely intercepted, including faxes travelling to and from Parliament House, the Commonwealth Ombudsman’s Office (COO) and the COTs and, in Alan Smith’s case at least, that this interception continued for seven years after his arbitration was over. This means, in turn, that Telstra had free access to in-confidence documents that the claimants believed they were sending ONLY to their accountants, lawyers and/or technical advisors (as well as Parliament House and the COO), and those documents could well have included information that the claimants might not have wanted disclosed to the defendants at the time.

Coopers & Lybrand Report

Towards the end of 1993 Telstra commissioned an international audit company, Coopers and Lybrand, to report on Telstra’s fault handling procedures, particularly in relation to complaints like those raised by the members of COT. In a letter dated 17 September 1993 (AS 1010) to AUSTEL’s Chairman, Mr Robin Davey, the then-Shadow Minister for Communications, Senator Richard Alston, wrote:

"Finally I note that Telecom propose to engage one of the "Big Five" accounting firms to audit its handling of the COT cases with Austel merely having unspecified access to the consultants and its output.

If such an audit is to have any legitimacy it is essential that it should be commissioned and paid for by Austel. To allow one party to litigation to select and pay - undoubtedly generously - for the judge would not be tolerated in any judicial proceedings. It should not be tolerated here."

Regardless of the concerns expressed by various government ministers, including Senator Alston, it was Telstra alone who paid Coopers & Lybrand and Bell Canada International Inc. to carry out that work. Then, in the case of the COT arbitrations, Telstra paid for the arbitrator and the arbitrator’s helpers who were then also exonerated from all liability for anything untoward that they might be involved in.

Senator Alston’s objections to Telstra being allowed to pay for both the Coopers & Lybrand audit of Telstra systems and the Bell Canada International Inc (BCI) audit of the main COT claims, and the telephone exchanges that the COT businesses were connected to, was particularly alarming because, as is now known, both those reports were not only orchestrated by Telstra, but were orchestrated by AUSTEL too, as their April 1994 ‘COT Cases Report’ clearly shows. (Note: these Bell Canada International Inc (BCI) tests are discussed in the next chapter)

This is even more alarming because, although all this auditing was carried out on behalf of the Government Regulator, Telstra was still able to manipulate the results by hiding any findings that went against them, whether those findings were reported by Coopers & Lybrand or BCI, and they accomplished this with even more manipulation, this time by using various exemptions in the FOI Act, such as Legal Professional Privilege (LPP) or adverse findings against Telstra (see Senate Files)

A further alarming aspect of Telstra’s interference in the official auditing process is that any adverse findings could also be deliberately omitted from the formal Coopers and BCI reports that AUSTEL and the TIO had already agreed would be provided to the COT arbitrator. This meant that the arbitrator would never know what it was that Coopers and BCI found wrong with Telstra’s processes.

Since Alan has since proved that both the Coopers & Lybrand and BCI reports were fundamentally flawed. Senate files show that not all the adverse findings against Telstra have been revealed – even now – how then can the present Coalition Government condone the behaviour that led to the arbitrator not only accepting two thoroughly flawed reports as arbitration evidence, but then basing his final decisions, in part at least, on those flawed reports? 

How can the results of the COT arbitrations still stand, as they have for the last twenty years, when it has been obvious for some time that these were not the only findings against Telstra that Telstra has kept hidden, and that some of those hidden findings included technical documents that were falsified so the arbitrator would not uncover the truth about Telstra’s failing telecommunications network? How could Telstra get away with manipulating the law as it stood back then, in 1994, without even being asked to explain what really went on during the COT arbitrations?

It is important to note that when Coopers & Lybrand investigator, Robert Nason, and his secretary, Sue Hurley, met with Alan at his Cape Bridgewater Holiday Camp on 13 October 1993, Alan supplied them with evidence supporting his claims that Telstra had knowingly misled and deceived Alan during his 11 December 1992 settlement. Alan explained that two technicians visited Alan's businesses on 3 June 1993 to investigate his continuing complaints regarding his phone service and inadvertently left behind a briefcase. When Robert Nason and Sue Hurley saw this evidence they were shocked and likewise convinced that Telstra had clearly disadvantaged Alan's previous settlement claim.

A letter dated 3 November 1993 to Mr Robert Nason, (Coopers & Lybrand) from the Hon Senator Richard Alston, Shadow Minister for Communications (AS 938) notes:

"I have at last received a copy of your terms of reference and these make it clear that the review requires Coopers & Lybrand to "conduct an independent audit of (the) adequacy, reasonableness and fairness (of) Telecom's approach to Difficult Network Faults reported by customers over the last 5 years".

The review also explicitly requires Coopers & Lybrand recommendations to take "into account Telecom's legal obligations".

Despite the clear nature of these terms of reference I am disturbed to learn from several COT members that your review will not deal with questions of misleading and deceptive conduct".

While the final public Coopers & Lybrand report is almost identical in regards to Telstra's previous settlements with the COT Cases at point 2.20 to that as shown in their draft at point 2.20, it is important we highlight one particular variation

Draft

"We have found evidence that an inappropriate use of legal representation and aggressive tactics were used in negotiating settlements and attempting to develop a resolution process." (AS 939)

Final

"We believe that in some cases an inappropriate use of legal representation and aggressive tactics were used in negotiating settlements and attempting to develop a resolution process’s" (AS 940)

Alan has always been convinced that the segment referred to in the Coopers & Lybrand draft "have found evidence" was the same evidence Alan provided Robert Nason and Sue Hurley during their visit to Alan's business on 13 October 1993 which shocked them and left them both speechless. At point 3.5, 3.6 and 3.7 Nason clearly articulates he placed the Bell Canada International Inc Report, Coopers & Lybrand Report and the AUSTEL COT Cases Report into evidence.

Had Dr Hughes been provided the true findings in this case, those of Coopers & Lybrand as well as AUSTEL's secret findings on this settlement issue, as arbitrator he would have had to find against Telstra regarding these settlement issues instead of finding in favour of Telstra.

Although Senator Ron Boswell’s questions on notice were put to the Senate Estimate Committee Hearing in December 1993, they are most relevant to this date line, mostly because of the question that the Senator put directly to Telstra (AS 1030), i.e.: 

“In the review by Coopers and Lybrand of Telecom’s difficult network fault, policies and procedures will the terms of reference allow Coopers and Lybrand to examine the issues of misleading and deceptive conduct of Telstra?”

Telstra then replied:

“...Telecom does not accept that it has been involved in such conduct” and “Should allegations of such conduct arise in the course of C&L investigations, Telstra would expect C&L to have proper regard to such allegations on the conduct of its work” and “Telstra would also expect C& L to address any such allegations in its reports” (AS 1230). 

When Coopers & Lybrand later presented their draft report, it did include the suggestion that Telstra may have been party to misleading and deceptive conduct, but all those references were removed from the final version. The final version also excluded any references to a letter that Graham wrote to Robert Nason (a partner at Coopers & Lybrand) confirming that Telstra had knowingly sold faulty equipment to him, nor did it refer to the evidence that Alan also provided to Mr Nason supporting Alan and Graham’s belief that Telstra had knowingly misled and deceived them, nor did it include the evidence that Alan had found in the briefcase and also passed on to Mr Nason.

Perhaps this conduct was not disclosed, because it is directly related to the threats recorded in Telstra’s internal memo of 9^th November, from the Group Managing Director of Telstra Mr Doug Campbell to Telstra's General Manager of Commercial Mr Ian Campbell Call For Justice Evidence File 16 to 22 and (AS 942), saying: 

"I believe that it should be pointed out to Coopers and Lybrand that unless this report is withdrawn and revised, their future in relation to Telecom may be irreparably damaged."

These are strong words from the most senior manager below the CEO of the largest telecommunications corporation in the country; a corporation that, at the time, had a monopoly hold on the industry in Australia.

Although the draft and final versions of the Coopers & Lybrand reports are not exactly complimentary of Telstra’s handling of COT matters, anyone reading them would not notice that by simply changing a word here and a phrase there, Coopers & Lybrand altered the draft so that the final version did not reveal what they really uncovered. For example, in paragraph 15 of the draft it is noted (AS 943) that:

"Telecom should satisfy itself that the customer premises equipment complies with Austel's technical specification or seek assurances from the customer that this is the case to ensure that the services supplied by Telecom are fit for purpose under the 1974 Trade Practices Act."

In the same section of the final version (AS 944) however, there is no mention of ensuring they that “…the services supplied by Telecom are fit for purpose under the 1974 Trade Practices Act.”

The draft report, at point 23 under ‘Other Recommendations’, notes (AS 945) that:

 "Fitness for Purpose: Telecom needs to issue, inter alia, instructions to sales, installation, maintenance, fault investigation and repair involved with PSTS and/or CPE work that checks must be made to ensure the PSTS will meet or continue to meet the "fitness for purpose" requirements of the 1974 Trade Practices Act for the circumstances they are dealing with."

In the final version Coopers & Lybrand have again left out the major issue of the service provided being ‘fit for purpose’ according to the1974 Trade Practices Act (AS 946), the very issues that AUSTEL advised the Government would be addressed by Telstra in a commercial settlement process, with no need for an arbitration if it was proved that Telstra had acted outside of the 1974 Trade Practice Act. But once again, here we have the arbitrator accepting the Coopers & Lybrand report, even though it did not include any reference to what Telstra should be doing according to the Trade Practice Act. 

Robert Nason has now been a senior executive in the Telstra Corporation for some time, including holding the position of Group Managing Director, Business Support and Improvement in 2014. In 2013 he was also appointed as Chairman of Foxtel, but before that, back in June 2010, Alan provided Mr Nason with a condensed draft version of this story and most of the Exhibits it refers to, in the hope that he could facilitate a resolution to Alan’s matters. Mr Nason has never responded.

However, Sue Laver, Telstra's General Counsel did write instead, noting:

I refer to your letter dated 1 June 2010 addressed to Robert Nason, Group Managing Director of Corporate Strategy & Customer Experience.

"Your claims were resolved pursuant to the arbitral award dated 11 May 1995. Over the thirteen years since the award, you have repeatedly sought to have your complaint re-opened. Telstra does not propose any further review of your claims or to respond to any further correspondence from you".

Impracticable Cape Bridgewater Bell Canada International Inc (BCI) tests

Cape Bridgewater’s local Member of Parliament for the Liberal Coalition, on 9^th December 1993 wrote to congratulate Alan for his 'persistence to bring about improvements to Telstra’s country services' and went on to say that he regretted 'that it was at such a high personal cost' and the then-Minister for Communications, Hon David Beddall, in the then Labor Government, also wrote, saying:

"Let me say that the Government is most concerned at allegations that Telstra has not been maintaining telecommunications service quality at appropriate levels. I accept that in a number of 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".

The Shadow Minister for Communications (who later went on to become the Minister for Communications), and the National Party Senator, the Hon Ron Boswell, were pushing hard for a Senate Inquiry at this time. Senate Hansard records (the daily verbatim printed reports of Australian parliamentary debates) show that these Senators were assured by Telstra that the four main COT members would have their claims assessed commercially, in a specially designed, non-legalistic settlement proposal, to be called the Fast Track Settlement Proposal (FTSP). 

The decision for this FTSP was reached because all four main members of COT, Maureen Gillen, Ann Garms, Graham Schorer and Alan Smith, had suffered considerable consequential and resultant losses due to their many years of ongoing attempts to bring the matters to the attention of the Government. And because of their ongoing attempts and constant work aimed at finding natural justice through Telstra, on top of the losses caused directly by faulty phones.

With the sanction of the then-Labor Government, the Regulator arranged for an international expert to be brought to Australia to have a look at the exchanges and network that serviced the COT cases businesses. Bell Canada International Inc (BCI), technical telecommunications specialists from Ottawa, Canada, duly arrived to run tests on the network that serviced the cases. In Alan's case, these tests were allegedly carried out on the Cape Bridgewater network between 4^th and 9^th November 1993.

At the conclusion of these tests, BCI produced a report. Unfortunately, this report was not acceptable to the Australian Regulator since the BCI technicians had not tested the actual line between Alan's business and the nearest connection to the local exchange (called the Customer Access Network, or CAN). FOI documents numbered A00404 to A00407 (AS BCI 21) show that Telstra’s Commercial General Manager for Australia responded by letter to the Regulator on 15^th December 1993, saying: 

"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."

In this letter, Telstra goes on to discuss the COT Settlement Proposal (FTSP), saying: 

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

A hand-written note at the bottom of the last page of this letter states:  'There is a multitude of inaccuracies'.  This note is linked by an arrow to a reference to a letter dated 9^th December 1993, from the Regulator to Telstra (AS-002 BCI 20-A).  Some years after Alan's arbitration he received a copy of this 9^th December letter, under FOI (numbered K47052 to K47054).  The summary, at the end of this letter, stated: 

"Having regard to the above, I am of the opinion that 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."

It is quite clear, however, from information Alan received in response to his FOI request of 18^th October 1995, that Telstra did not supply a copy of the Regulator’s letter to the arbitrator in Alan's case, or anyone else’s in the arbitration process.

If the full story of the Cape Bridgewater/BCI report (see AS-001 BCI Report and AS-002 BCI Exhibits 1 to 46) was to be properly investigated now, the investigators would be shocked to discover that some of Australia’s so called ‘most respected citizens’ closed ranks in a combined effort to discredit Alan’s BCI claims and hide the true extent of Telstra’s efforts to stop a full Senate Estimates Committee enquiry into their false reporting regarding the Cape Bridgewater/BCI tests (AS-002 BCI 1 to 46)

Both Dr Hughes’ award regarding Alan’s phone problems and the findings of the TIO-appointed technical consultants, DMR & Lane, verify that they did not assess and/or investigate any of the ongoing phone billing problems that Alan claimed to continue after the November 1993 Cape Bridgewater / Bell Canada International tests. This leaves very little doubt that both Dr Hughes and DMR & Lane believed the findings in the BCI report that stated that the Cape Bridgewater RCM was fault-free after the BCI investigations had been completed.

Protect This Information As Confidential

10^th November 1993: Details of information disclosed by Warwick Smith is given in Telstra FOI document folio A05993. This was not made available to Alan prior to signing the FTSP. It is marked CONFIDENTIAL Subject – Warwick Smith – COT Cases. This Telstra email is addressed to Telstra’s Corporate Secretary Jim Holmes, copied to Frank Blount Telstra’s CEO, author Chris Vonwilla states (AS 931)

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

Advice from Warwick is:

• Boswell has not yet taken the trouble to raise the COT Cases issue in the Party Room.
• Any proposal to call for a Senate inquiry would require, firstly, endorsement in the Party Room and, secondly approval by Shadow Cabinet.
• This would appear highly unlikely at this stage, given Boswell’s apparent lack of interest of raising it within the Party Room.
• The intermediary will raise the matter with Boswell, and suggest that Boswell discuss the issue with Warwick Smith. Warwick sees no merit in a Senate Inquiry.

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

Could you please protect this information as confidential."

It could be said that the advice Warwick Smith gave to Telstra’s Chris Vonwiller, in confidence, (that the Coalition Party was not keen on holding a Senate enquiry) could have later prompted Telstra to have the FTSP non-legalistic commercial assessment process turned into Telstra’s more preferred legalistic arbitration procedure, because they now had in-side Government privileged information there was no longer a threat of a Senate enquiry. Chris Vonwiller and Jim Holmes were both members of the TIO Board when this email went into circulation.

Two months after Warwick Smith provided Chris Vonwiller with his Government privileged information, he received advice on the 11^th January 1994, from Telstra’s arbitration COT liaison officer, Steve Black (AS 932) noting:

"It was agreed at a meeting between Mr Graeme Ward and Mr Steve Black of Telecom and Dr Bob Horton and Mr Neil Tuckwell of AUSTEL on 7 January 1994 that:

• Information obtained from Telecom, in the course of AUSTEL's regulatory functions, and relevant to any parties involved in a formal arbitration process with Telecom under the control of the Telecommunications Industry Ombudsman (TIO) will only be released after consultation with the TIO and Telecom".

The Acting Chairman of AUSTEL (now ACMA), Dr Bob Horton, also received a similar letter from Telstra's Paul Rizzio Finance & Administration (AS 933) noting:

         "To this end I wish to confirm the agreement reached between Mr Graeme Ward and Mr Steve Black in a meeting with you and Mr Neil Tuckwell today that:

• Information obtained from Telecom, in the course of AUSTEL's regulatory functions, and relevant to any parties involved in a formal arbitration process with Telecom under the control of the Telecommunications Industry Ombudsman (TIO) will only be released after consultation with the TIO and Telecom."

What these two letters show is that there were two meetings between the TIO Telstra and AUSTEL; one on 7^th of January and the other on the 11^th, agreeing to the same issue: allowing the TIO office to scrutinise what documents reached the COT arbitration process, and which would be concealed from the arbitrator.

When these two letters are read in conjunction with the 11 July 1994 letters (AS 934) it is quite clear that the TIO (the administrator to the arbitrations) and Telstra began their collusion prior to 11 July 1994, regarding what documents would reach the arbitration process. (AS 934) from Telstra’s Steve Black to Warwick Smith (TIO) notes:

"Telecom will also make available to the arbitrator a summarised list of information which is available, some of which may be relevant to the arbitration. This information will be available for the resource unit to peruse. If the resource unit forms the view that this information should be provided to the arbitrator, then Telecom would accede to this request."

The statement: “… if the resource unit forms the view that this information should be provided to the arbitrator,” confirms that, during the very early part of the arbitration process, it was secretly planned that the Resource Unit would have the power to decide which documents would reach the arbitration process and which would be withheld.

The TIO, the arbitrator, the TIO Board and the TIO Counsel must all have known about this secret vetting of documents and destroying of evidence, just as they must have known that Telstra was not abiding by the process that had been formally agreed upon, in relation to the first four COT arbitrations, because none of the four were receiving the documents they needed to support their claims. This was the promise made by the TIO and the arbitrator in an effort to convince the COTs to abandon the original commercial assessment process and sign, instead, for the Fast Track Arbitration Procedure.

Issues continue

1^st November 1993, this Telstra internal email from Peter Zeagers to Nigel Beaman: FOI folio H36293 (AS 36) notes:

"All admin groups are being inundated with complaints from customers who have advertised their numbers as 1800 but their customers are simply unable to get through to them. I have spoken to our fault staff at Waverley who are also inundated with same complaints”.

3^rd November 1993: this Telstra FOI document, folio C00757 (AS 6), appears to explain why Alan had lost so much business; apparently he had ceased trading but had not known it at the time, as this internal Telstra memo so clearly notes:

“As a result of the investigations into difficult customer complaints and associated reports it has become apparent that the present Recorded Voice Announcement (RVA) for incorrect numbers requires revision. The RVA in question is worded:

‘The number you have called is not connected or has been changed. Please check the number before calling again.’

Document AS 6 then goes on to say:

“...this message tends to give the caller the impression that the business they are calling has ceased trading, and they should try another trader.” 

In other words, because Alan’s 008/1800 freecall service line worked through his 055 267 267 line, he was losing bookings from both the businesses that used his main 055 276 267 phone number, i.e. general school and social club bookings, but he was also losing bookings from singles club patrons who mostly used his 1800/freecall number.

The next internal Telstra RVA email (FOI folio A03544) and (AS 6) further stated:

“I am sure when we start to scratch around we will find a host of network circumstances where inappropriate RVAs are going to line.”

5^th November 1993: Telstra Internal Memo H36178. Telstra’s Greg Newbold, Group Communications Manager, alerts Harvey Parker, Group Managing Director – Commercial and Consumer, about the short duration post dialling delays affecting Telstra’s 1800 customers:

"Bruce is concerned that the matter requires fixing at a national network level not just on a fault by fault basis. He also raises the question whether we should be actively promoting 1800 in the current circumstances." (AS 45 B)

10^th November 1993:  This letter to Alan from D. Madden & Co (Lawyers) from Warrnambool (Victoria) notes:

"I am writing in reference to the proposed Senate committee investigation into Telecom.

As you are aware, I am employed as 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." (AS 1011).

Fast Track Settlement Proposal

As a result of their own investigation, the Regulator had come to the conclusion that there were 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 (and now all close to being bankrupt) had won a significant battle.

Because they were all in such difficult financial positions due to their phone services not being up to network standard, and because they had certainly proved their phones were still not working properly, the Chairman of the Regulator pressured Telstra into appointing a commercial loss assessor to arrive at a value for their claims against Telstra. This was to be the non-legal Fast Track Settlement Proposal (FTSP), and it was to be set up so the COT four would have prompt and speedy access to any discovery documents they might need to enable them to complete their claims as quickly as possible.

Telstra agreed to rectify any on-going phone faults before the assessor handed down any decision regarding payouts. After all, what good would a commercial settlement be if the phone faults continued? Again, the COTs’ spirits rose and they began to feel they were getting somewhere at last. They had discussions with the Regulator’s Chairman and he verbally assured them that any preparation costs they might incur would be considered as part of their losses, so long as they proved their claims.

18^th November 1993:  This same Chairman would not confirm this assurance in writing because, he explained, it could set a precedent. Telstra’s Corporate Secretary had written to him on 18^th November 1993 (FOI document number R10799), 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 the Regulator’s recommendations flowing from this and other reviews.”

23^rd November 1993: Graham Schorer, Ann Garms, Maureen Gillan and Alan Smith signed the FTSP, trusting in the Regulator’s verbal assurances that consequential losses would be included. These signed FTSP agreements were forwarded to Telstra’s corporate secretary. Alan included a letter with his agreement, clearly putting his expectations of the process: 

“In signing and returning this proposal to you I am relying on the assurances of …, Chairman of the Regulator, and …, General Manager of the Regulator’s Consumer Affairs Department, that this is a fair document.  I was disappointed that … 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.”

The four COT members felt some sense of achievement, although Maureen’s health was beginning to fail. The pressure on all four of them had been immense, with TV and newspaper interviews as well as their continuing canvassing of the Senate. The stress was telling by now, but Alan continued to fight for a change in rural telephone services.

The Hon David Hawker MP, Bridgewater’s local Federal Member of Parliament had been corresponding with Alan since 26^th July 1993 (AS 1013).

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

It goes on to say…

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

and on 18^th August 1993 (AS 1014):

"Further to your conversations with my electorate staff last week and today I am enclosing a copy of the correspondence I have received from Mr Harvey Parker, Group Managing Director of Commercial and Consumer division of Telecom.  

I wrote to him outlining the problems of a number of Telecom customers in the Western Districts, including the extensive problems you have been experiencing."

25^th November 1993: Page two of this Telstra internal (AS 46-A) letter states:

"The following is an assessment of the individual disputes highlighted by Mr Smith. From the information given, little more can be offered for explanation than, ‘This is not the way it should work, we need to investigate to find cause.’

It goes on to point out:

1. Calls to Traralgon, being charged on busy. “This situation should not have occurred.

And further states:

3. Calls to RVA, “…being charged for RVA is not correct operation.”

30^th November 1993:  This Telstra internal memo FOI document folio D01248, from Ted Benjamin, Telstra’s Group Manager – Customer Affairs and TIO Council Member writes to Ian Campbell, Customer Projects Executive Office. Subject: TIO AND COT. This was written seven days after Alan had signed the TIO-administered Fast Track Settlement Proposal (FTSP). In this memo Mr Benjamin states:

"At today’s Council Meeting the TIO reported on his involvement with the COT settlement processes. It was agreed that any financial contributions made by Telecom to the Cot arbitration process was not a matter for Council but was a private matter between Telecom, AUSTEL and the TIO.

I hope you agree with this."

This shows that Telstra was partly or wholly funding the arbitration process.

If the process had been truly transparent then the claimants would have been provided with information regarding the funds – specifically, the amounts provided to the arbitrator, arbitrators resource unit, TIO and TIO special counsel for their individual professional advice throughout four COT arbitrations.

It is still not known how the arbitrator billed Telstra for his professional fees or how the TIO billed Telstra for his fees, and those of the TIO-appointed resource unit and special counsel. This raises the questions:

• Was the arbitrator and resource unit paid on a monthly basis?
• Did the resource unit receive any extra bonus for being secretly appointed as the second arbitrator in determining what arbitration documents the arbitrator was allowed to receive and what was withheld (see letter dated 11^th July 1994, from Telstra to Warwick Smith)?

Without knowing how these payments were distributed by the defendants to the parties involved in the first four arbitrations, it would be impossible for the TIO and AUSTEL (now the ACMA) to continue to state that the COT arbitrations were independently administered.

To summarise the issue: during these four arbitrations, the defence was allowed to pay the arbitrator and those involved in the process. How is this different to the defendant in a criminal matter being allowed to pay the judge? It is a clear and concerning conflict of interest.

Senate Hansard, dated 26^th September 1997 (AS 232-B), confirms that during a Senate hearing into COT issues, the then-new TIO, John Pinnock, agreed that Mr Benjamin had not removed himself from Council discussions when COT arbitration matters were discussed:

Senator SCHACHT – "…Mr Benjamin, you may think that you have drawn the short straw in Telstra, because you have been designated to handle the CoT cases and so on. Are you also a member of the TIO Board?

Mr Benjamin – "I am a member of the TIO council".

Senator SCHACHT – "Were any Cot complaints or issues discussed at the council while you were present?"

Mr Benjamin – "There are regular reports from the TIO on the progress of the Cot claims".

Senator SCHACHT – "Did the council make any decision about Cot case or express any opinion?"

Mr Benjamin – "I might be assisted by Mr Pinnock".

Mr Pinnock – Yes?"

Could there possibly be a more sinister political twist to Mr Benjamin being allowed to attend TIO Council meetings when the COT arbitration claims were being discussed? It certainly seems that there could be, because it was Mr Benjamin who was in control of which documents the COT claimants could be received in response to their FOI requests, and when that information would be released. It is believed this ties in with Mr Benjamin’s constant pressure for the TIO to investigate these FOI issues and the TIO’s reluctance to do so, since he had already supplied private COT / government particulars to Telstra members of the TIO Board.

The decision to allow the defendants to attend these meetings without inviting the claimants was made by the TIO Council Chairman, the Hon Tony Staley, who was then also the Federal Liberal Party Treasurer. This clearly raises questions about what political motives might have been behind that decision, particularly when it was clearly to the detriment of the claimants.

Mr Staley also falsely advised his liberal party colleagues, on numerous occasions, that the TIO-administered COT arbitrations had all been conducted according to the principals of natural justice when he knew, certainly in Alan’s case at least, that Mr Benjamin had deliberately withheld some of the most relevant Bell Canada Internal Inc. (BCI) Cape Bridgewater information from Alan, on behalf of Telstra, even though Alan had quite rightly requested that information under FOI rules, in May 1994. 

Mr Benjamin eventually released these documents, without ever assessing them, on 23 May 1995, two weeks after Dr Hughes had deliberated on Alan’s claims (AS 819).  This means that, as a direct result of attending those monthly TIO Council meetings, Mr Benjamin knew exactly where the arbitrator and his TIO-appointed Resource Unit were at with their investigations, and when a final award would be provided. This meant that Telstra knew exactly which of the most damning documents to conceal and when it would be safe to release them. In Alan’s case, that was after the designated arbitration appeal period had expired on 23 May 1995.

Sinister may not be the first word to describe the discovery that, in his position as Chairman of the TIO Council, Mr Staley received a letter (AS 1027) dated 2 June 1994, from John Pinnock (TIO) concerning another proposed arbitration process that noted:

“In part my position has hardened because of the many problems

 and deficiencies in the Arbitration process”,

but still Mr Staley continued to write to Alan (and we assume others), claiming quite the opposite of Mr Pinnock’s claim regarding the COT arbitrations. And Mr Staley’s letters are now included in privileged Government archives, as if they were the truth.  

6^th December 1993: This letter from Trevor Hill, Telstra's Corporate Management, to various other Telstra's executives FOI folio R04207/8 notes:

"The purpose of this memo is to provide formal Corporate Regulatory feedback to your project team on issues relevant to the development of service specifications and testing procedures arising out of the “COT Case” investigations.

I am concerned that within the project team there appears to be undue focus on trying to develop a service specification which will be “all things to all people.” That is, there would appear to be an attempt to develop a specification not only BCS service difficulties but also potential difficulties arising from a customer use of CPE. This is not appropriate. AUSTEL has already issues technical standards in relation to CPE and its connection to a carriers network” and

Telecom’s acceptance should only occur after a careful process of consideration and deliberation and with a full understanding of the impact upon the Company in terms of the delivery and ongoing monitoring of services within those specifications."

FOI folio R04207/8 document shows that Telstra are aware of the relevance of performing correct testing procedures – example: Service Verification Testing (SVT) Testing.

13^th December 1993: This Telstra internal email FOI folio R04205 (AS 419) shows quite clearly that AUSTEL’s Deputy Chairman, Bob Horton (ex-Telstra Executive), allowed Telstra to limit their mandatory parameter testing to only those customers that Telstra stated required testing:

"This Email is to alert you to a possible regulatory interaction with the current work on “COTS Cases” and ongoing work with AUSTEL on network performance.

As you know, a Ministerial Direction gave AUSTEL power to set end-to end network performance standards.”

It goes further to state:

“The AUSTEL staff member leading the group originally wanted a very wide list of mandatory parameters but after discussion with Bob Horton and a presentation to the Standards Advisory Committee by Yasmin, AUSTEL have agreed to limit the scope of the initial work to the few parameters our customer surveys had shown as being of most concern."

Bob Horton, referred to in the above memo, was AUSTEL’s Acting Chairman at the time.

It is easy to see just how bad this situation was by simply linking this limiting of the mandatory testing with another Telstra internal email (FOI folio A09392) dated 15 November 1993, (AS 418) which states that:

"Parameters for Cape Bridgewater RCM have been obtained, but I don’t believe them - I am attempting to check them. Some of the people supplying this information live in’ old Telecom’!".

The reader has only got to compare Exhibits AS 418 and 419 with AS 487, which are the covert findings included in AUSTEL’s Cape Bridgewater Holiday Camp March 1994 report which notes, at point 212:

"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."

In other words, AUSTEL and Telstra suspected that Telstra's Service Verification Testing of Alan's telephone service lines would NOT locate the  'causes of faults being reported,' either during or after his arbitration. 

More 1800/800 fault deliberations/More damning evidence

16^th December 1993: This letter from Denise McBurnie of Freehill Holligdale & Page (FHP) in response to Alan’s letter of 6 December 1993 states:

“With respect to your comment concerning a customer from Mount Gambier, South Australia, who has reported to you that he had difficulty contacting you on your 008 service, if you are able to provide our client with more details (such as the caller’s telephone number) our client may be able to investigate and comment further on the problem which this customer reported to you". (AS 602)

Neither Telstra nor FHP explained why this Mt Gambier customer and numerous other customers were all experiencing the same problems. What this document does again confirm is that Alan, where his telephone problems and faults were concerned, had to deal directly with Telstra’s outside lawyers before his phone faults were investigated.

Documents (AS 59) are two letters; one dated 4 January 1994 from Alan to Ms McBurnie and the other dated 28 January 1994, also to Ms McBurnie’s response. These two documents show that Freehills had a significant input into settling the technical issues associated with Alan's phone problems, which continued to affect his businesses endeavours both during and after his arbitration. Not only was Freehills Telstra’s arbitration defence lawyers in both Graham and Alan’s arbitrations, these letters show they also advised Telstra on how to address COT related technical issues before the start of the arbitrations. Since none of the 008/1800 information Alan provided to Freehills was ever returned to Alan in response to his arbitration FOI requests. Could Telstra have originally set up this system of the COT Cases registering their phone complaints through Freehill's, with the sole aim of concealing all information concerning those complaints under Legal Professional Privilege.

20^th December1993: This internal email FOI folio A0035 from Telstra's Don Pinel to various other executives within Telstra notes:

"I understand there is a new tariff filing to be lodged today with new performance parameters one of which commits to 98% call completion at the individual customer level. Given my experience with customer disputes and the recent BCI study, this is a cause for concern. We will not meet this figure in many exchanges around Australia particularly in country areas.

I assume that it is too late to stop the filing (and we may not want to even if there is a downside) but this has the potential to cause us a major pain in the CoT area."

Apparently, Telstra were quite aware that their rural exchanges were not up to network standard.

This issue has still never been properly investigated, either by any of the various Ministers for Communications that have been appointed since 1995.

6^th January 1994: This letter to Telstra's Steve Black from AUSTEL's General Manger of Consumer John MacMahon FOI folio 000762 notes:

"You are probably aware of Mr Smith ongoing complaints as to the efficacy of his 008 service - he maintains that many callers receive a RVA advising that the number is no longer connected.

Further to that point is the experience of the Portland Tourist Information Centre which is now complaining of precisely the same problem".  

7^th January 1994: Internal Federal Government memo from Tom Dale, of Minister Lee’s Office with the subject cot cases (AS 48-F) states

"I spoke with Warwick Smith in light of today’s reports that he is investigating the telephone monitoring allegations.”

He later writes:

“He also mentioned that the fast-track claim settlement process was not getting anywhere due to the COT cases knocking back the TIO’s proposal for people to determine their claims. We should not give the Minister the impression that the fast-track would fix things: it is far from certain."

The issue being discussed regarding whether the ‘fast-track’ would fix these matters should have been addressed prior to the commencement of the FTSP. Robin Davey had already written to the previous Minister, the Hon David Beddall MP, on the 26^th August 1993, advising him that Telstra was aware of faults still affecting Cape Bridgewater (AS 48-G) stating on page 4:

Cape Bridgewater – "…Telecom has admitted existence of unidentified faults to AUSTEL."

This raises the following questions of AUSTEL, as the facilitators to Alan’s arbitration:

(a)  Why was this admission by Telstra to AUSTEL, and the advice given by AUSTEL to the Minister regarding these unidentified faults in existence, hidden from Alan and his technical advisors during his arbitration?

(b) Why did AUSTEL and the Government allow Telstra to submit under oath in their arbitration defence of Alan’s claims, during Telecom’s fault investigation at Cape Bridgewater during 1988 to1994, that they found no faults which would have affected Alan’s business endeavours?

It is important to remind the Telecommunications Industry Ombudsman (TIO) and the Australian Communications and Media Authority (ACMA) that Telstra’s Corporate Secretary, Jim Holmes, was advised in all three emails (AS 641) A01554, A06507 and A06508 that the Leopard Fault data had been destroyed once it was more than twelve months old, and he was a member of the TIO Board when the first four COT claimants signed the arbitration agreements. But it seems that Mr Holmes did not warn the Government, which had endorsed the arbitration agreements; or the TIO, who administered the arbitrations, that the claimants would not be able to support their claims effectively, because Telstra had destroyed all the historic data, at least from 1992 onward.

Have the TIO Board or the ACMA Board ever stopped to consider what followed, after Telstra kept this information secret? Have they ever considered the financial cost to each claimant as they tried to access this Telstra information? All of the COT cases accumulated costs that ran into hundreds of thousands of dollars trying to access this non-existence fault data (and other Telstra data) in support of their arbitration claims.

In summary – AUSTEL’s hiding of their true adverse findings against Telstra has cost Alan dearly and what the TIO, AUSTEL and now ACMA have failed to understand is that it took eighteen months and an enormous financial burden to complete Alan’s arbitration claim, and all he was unknowingly doing was attempting to prove the facts that AUSTEL had already proved (in their draft report). All the while Telstra submitted false witness statements, under oath, denying there were any problems of significance that had affected Alan’s business.

Have the ACMA Board, the TIO Board and the TIO Council fully understood how much it has cost taxpayers for Telstra to defend Alan’s claim, when Telstra was a fully-Government-owned corporation? The cost to the taxpayer included the hiring of the TIO-appointed arbitrator; the TIO-appointed Special Counsel; and the TIO-appointed Resource Unit – and all this money was spent as part of a process where the Government Communications Regulator AUSTEL had already secretly found in favour of Alan’s claims.

Who Paid Grant Campbell?

10^th January 1994: This TIO document (AS 542-A) confirms that Grant Campbell was handling Alan’s related FTSP and (Ferrier Hodgson Corporate Advisory) the TIO-appointed Resource Unit correspondence to Telstra on behalf of the TIO.

         Alan was never informed before his arbitration that Grant Campbell had been seconded from Telstra, nor that he had defected back to Telstra all within a twelve-month period. These following exhibits confirm that an unhealthy relationship between the TIO office and Telstra certainly existed during the period Alan was in arbitration.

It is interesting to note that the 1993/94 TIO Annual Report does not list Mr Campbell as having worked for the TIO office, even though Mr Campbell held a senior managerial position with the TIO office. Please consider the following points:

1. TIO documents dated 9^th February 1994 (AS 542-B) confirm that Grant Campbell was signing letters on behalf of Warwick Smith, particularly in relation to the fax billing and lock-up complaints included in Alan’s Smith’s FTSP claims.
2. Telstra FOI documents H00027 H36279, and H36280 (AS 542-C) confirm that, in January and February 1995, Grant Campbell and Ted Benjamin were addressing the same types of 008/1800 billing issues on behalf of Telstra’s Customer Response Unit. This is the same Unit that Ted Benjamin headed when he wrote to Dr Hughes on 16^th December 1994 to confirm that Telstra had advised AUSTEL, in writing, that they would address Alan Smith’s 008/1800 billing issues as part of their defence of his claim, as per the arbitration agreement. Alan has always been concerned about Grant Campbell’s handling of Alan’s 008/1800 arbitration materials that went through the TIO’s office in 1994.

         During the early stages of the COT arbitration process the COT claimants were told that Pia Di Mattina had been seconded from Minter Ellison by the TIO to assist him in the COT Arbitration Process. Miss Di Mattina’s name, understandably, does not appear in the TIO 1993/94 employee list that is included in the 1993/94 Annual Report (the report can be supplied on request), although all the other TIO employees are listed there, but it is also interesting to note that Grant Campbell’s name is not included on the employee list either, even though he dealt with a number of the billing issues during Alan Smith’s arbitration, as well as accepting part of Alan Smith’s original FTSP claim lodged with the TIO office on 27^th January 1994.

This Telstra internal email FOI folio 000973 (AS 542-E) notes:

"The ex-employee’s name is Grant Campbell. Grant then worked as the Deputy Telecommunications Industry Ombudsman and then on a senior management review team".

On the 9 February 1994, Mr Campbell wrote to Telstra’s Fiona Hills, under the heading Loss of Fax Capacity, noting:

"I spoke with Alan Smith on the 9 instant following our discussion on the 8 instant. He has agreed that this is a new matter and whilst it may be indicating some ongoing problems, it is not a matter that relates directly to the preparation of his material to be presented to the Assessor".

Mr Campbell’s statement to Fiona Hills that “He [Alan Smith] has agreed that this is a new matter” does not match the information in (AS 767-A, 768, 769, 770, 771, and AS 772-A) which confirm that local (Portland) Telstra technicians were aware of the major problems associated with the faxing capacity issue, at least as far back as October 1993. Mr Campbell’s correspondence was, therefore, clearly misleading fellow Telstra employees and, possibly, Warwick Smith also, about the ongoing problems. This adds even further weight to both Graham and Alan’s claims that there needs to be a transparent investigation into the TIO-administered COT arbitrations.

It is amazing enough to find that Grant Campbell was seconded from the employment of the defendants during the COT arbitrations, but it is even more amazing to learn that, while he was wearing his TIO hat, he was also working on 1800 problem claims lodged by another COT claimant but, in this instance, he was wearing his Telstra hat!  These two different ‘hats’ must lead directly to an understanding that no-one may ever know how many claim documents the COT cases sent to the TIO’s office while Grant Campbell was wearing his TIO hat but being paid by Telstra.

We may never uncover how many arbitration procedural documents never made it to the viewing room that the TIO-appointed, secretly-absolved-from-risk, arbitration Resource Unit appeared to have access to.

We have raised the issue of this Grant Campbell fax capacity issue here because Dr Hughes’ technical Resource Unit never provided Alan with the results of their investigations into the lost faxes, even though it cost Alan well over to $200,000.00 to participate in the arbitration process; and even though clause 11 in the official Arbitration Agreement notes: 'The Arbitrator's reasons will be set out in full in writing and referred to in the Arbitrators award, the lost fax issues were not referred to: 'in full in writing' in the Arbitrators award.

Like Grant Campbell, Warwick Smith and his appointed Arbitration Technical Resource Unit they appear to have misunderstood the significance of the 008/1800 problem, because they failed to alert Dr Hughes that the 008/1800 service Alan used was actually routed through his main service line, 055 267 267, the line that one of the two faulty EXICOM phones was connected to – the phone that was prone to lock-up after each terminated call. In other words, when the Resource Unit advised John Pinnock (TIO) on 15 November 1995, and Dr Hughes on 2 August 1996 (AS 220), that Alan’s 008/1800 billing claims were not addressed, they were also admitting to not investigating or addressing Alan’s main service line 055 267 267.

Was there a more sinister motive behind the decision to ignore Alan’s billing claims, the same 008/1800 billing faults that Telstra’s Grant Campbell was investigating while working with the TIO (on secondment from Telstra) and then working on again, later, after he went back to Telstra to work alongside TIO Council Member Ted Benjamin?

Did Ted Benjamin's relationship with Telstra and the TIO Council have anything to do with his later relationship with Grant Campbell? There appears to be NO doubt that this particular issue – of Grant Campbell addressing 008/1800 problems on behalf of the TIO and then on behalf of Telstra, all during Alan’s arbitration – created a massive conflict of interest.

Could it be that, when Alan told Mr Campbell that he needed all the documents related to his earlier settlement, from before December 1992, so he could show how undemocratic this 1992 settlement process was, that Mr Campbell then passed that information straight on to Telstra, thereby effectively alerting Telstra to which documents they could ‘lose’ because it was relevant to Alan’s case?  It is also interesting to connect this issue to a letter written on 11 November 1994, to Telstra from the Commonwealth Ombudsman’s Office, asking why the earlier settlement material that Alan had requested under FOI had still not been supplied to him.

Telstra's 'Fast Track' Proposed Rules of Arbitration

A forensic assessment of this 10 January 1994 document will show that, except for a few minor cosmetic changes, the agreement that the four COT Cases signed on the 21 April 1994, believing (as did various government ministers) that it had been drafted by the President of the Institute of Arbitrators, had in fact been drafted by the defendants lawyers

The arbitration agreement Alan signed, along with three other claimants, included a confidentiality clause that covered events that occurred DURING the arbitrations process but did NOT cover events that occurred before the arbitration had commenced. Even BEFORE the parties signed the agreement, and without the claimants’ knowledge or consent, a meeting on 22 March 1994 was attended by Steve Black (Telstra's arbitration liaison officer), David Krasnostein (Telstra’s General Counsel), Simon Chalmers (Telstra's arbitration lawyer), Peter Bartlett (TIO Special Counsel), Dr Hughes (Arbitrator), Warwick Smith (TIO) and the TIO’s secretary, Jenny Henright. This meeting discussed important issues concerning the conduct of Alan's arbitrations without the presence of any COT claimant or their representatives and, because of the secrecy surrounding this meeting, the claimants weren’t even able to comment on the proposals put to the meeting.  If Graham Schorer (COT spokesperson) and Alan had been represented in the same way that Telstra was represented at that meeting, then the resulting alterations to two of the clauses in the arbitration agreement would certainly never have been allowed.  If Alan had known about the meeting and the alterations had been discussed at this meeting a month before Alan's lawyers agreed to accept the unchanged agreement, he would never have agreed to sign it.

After reading our story various observers from all walks of life could argue that Telstra acted outside the law DURING Alan's arbitration when they submitted false evidence, including manufactured test results, under oath, in a clear attempt to stop the arbitrator’s technical consultants from investigating the ongoing telephone problems that were still being experienced by Alan's business, even during the arbitration deliberation period, but this is not what Alan is raising here; what Alan is most concerned about is the conduct of the TIO and the arbitrator before he signed the  FTAP confidentiality clause which was attached to the Arbitration Agreement.