Chapter One

Judicial impartiality

Judicial impartiality is a significant element of justice. Judges should decide legal disputes free of any personal bias or prejudice. As a result of a conflict of interest, a judge may be unable to maintain impartiality in a case and thus should be disqualified.  During the COT arbitrations, however, our arbitrator (who heard all of the first four cases) had previously also been the legal and business advisor, over a number of years, for one of those first four, although the other three were not made aware of this at the time. Eventually, on 12 May 1995, the arbitrator wrote to notify the TIO (see Open Letter File No 55-A) that the arbitration agreement he had just finished using for my arbitration (mine was the first of the four cases) was ‘not a credible document to have used’, and then the arbitration rules were changed for the other three claimants’?

The arbitrator then increased the time allowed for that same previous client to access FOI documents from Telstra and respond to Telstra’s defence of his case, which gave the previous client a full thirty months longer than he had allowed me.  This is, quite clearly, an indication that the arbitrator was seriously biased towards that previous client (see Exhibit GS 565 file GS-CAV 459 to 489). Surely, once the government was alerted to the fact that this same arbitrator had previously assisted this particular COT claimant during that claimant’s Federal Court Action in 1990, in relation to the very same matters that were now before him, the arbitrator should have immediately been disqualified?

This bias by the arbitrator appears to have flowed over to the non-addressing of the Briefcase Affair report I submitted into the Fast Track Settlement Proposal (FTSP) in January 1994. By 21 April 1994, the powers to be were able to turn this FTSP (commercial assessment process) into Telstra’s preferred rules of arbitration. I was NEVER advised to resubmit my FTSP claim documents into the now arbitration process. I assumed that submission would be taken into account as it was officially provided to  Is there a more sinister reason as to why this briefcase submission was never defended by Telstra?

As discussed below, government regulatory documents confirm I uncovered sensitive documents left in a Telstra briefcase at my premises. These documents show Telstra knew how severe my telephone problems were, but refused to investigate these complaints unless I first registered them in writing with their lawyers, Freehill Hollingdale & Page. This continual writing up of individual and ongoing telephone faults, to these lawyers, in order to have Telstra investigate these faults almost sent me insane. Instead of keeping this evidence, I was providing it to Telstra and copying the same to AUSTEL, believing this would assist them in locating the problems I was experiencing. I was unaware I would later need this evidence for an arbitration process set up by AUSTEL, the then government communications regulator. This arbitration process meant I had to retrieve, from Telstra and AUSTEL under Freedom of Information, the very same documentation I had provided them. Imagine the frustration of knowing you had provided the very evidence you needed to support your case to the defending party, which was now, with the assistance of the government communications regulator (see Manipulating the Regulator), spuriously hiding it from under the guise of sensitive information i.e. legal professional privilege (LPP) when it was not privileged at all (see Chapter One Prologue Evidence File 1-A to 1-C)

The briefcase affair 

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

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

A little while later, in my office I found that Aladdin had left behind his treasures: the Briefcase Saga was about to unfold i.e. Telstra had knowingly misled and deceived me during my first settlement on 11 December 1992 (See Front Page Part Two 2-B)

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

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

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

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

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

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

I took this new information to Austel, and on 9 June 1993, Austel’s John MacMahon wrote to Telstra regarding my continuing phone faults after the settlement, and the content of the briefcase documents: 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. 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”.(See Arbitrator File No 61)

On the 12 July 1993, a newspaper article from the Portland Observer Newspaper is headed ‘Network Complaints Taken Up by MPs’, 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.” (See Cape Bridgewater Chronology of Events File No -17)

The pressure on all four of us COT cases was immense, with TV and newspaper interviews as well as our continuing canvassing of the Senate. The stress was telling by now but I continued to hammer for a change in rural telephone services. The Hon David Hawker MP, my local Federal member of parliament, had been corresponding with me since 26 July 1993.

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

“I trust that your meeting tomorrow with Senators Alston and Boswell is a profitable one.” (See Arbitrator File No/76)

On 27 August 1993, Telstra’s corporate secretary (during the period he was a Telecommunications Industry Ombudsman (TIO) board member) wrote to me about Telstra documents that were inadvertently left in a briefcase at my premises on 3 June 1993 (see Chapter Two Arbitrator / Part One), 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.” (See Open Letter File No/2)

Telstra’s FOI document dated 23 August 1993 and labelled folio R09830, with the subject of ‘The Briefcase’, is alarming to say the least. This document, which was copied to Telstra’s corporate secretary, 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.” (See Arbitrator File No 62)

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