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Chapter One - The collusion continues

Absent Justice - The Collusion Continues

There are discrepancies between the arbitrator’s and my version of the technical consultants’ report titled Resource Unit Technical Evaluation Report. Mr Alan Smith. CBHC. 30 April 1995. The second paragraph on page one consists of only one short sentence “It is complete and final as it is,” (see Arbitrator File No/27). However, the second paragraph on the equivalent page (page two) of the arbitrator’s report, also dated 30 April 1993 says:

“There is, however, an addendum which we may find it necessary to add during the next few weeks on billing, i.e. possible discrepancies in Smith’s Telecom bills.” (See Arbitrator File No/28)

There is more information in the arbitrator’s version than there is in mine. The reference to my ongoing billing problems states extra weeks are required to complete the investigation. The arbitrator did NOT provide the extra weeks.

My page two of this report (see Open Letter File No/47-A to 47-D) shows no mention of my billing claim document in my version. However, page three in the arbitrator’s version notes:

“One issue in the Cape Bridgewater case remains open, and we shall attempt to resolve it in the next few weeks, namely Mr Smith’s complaints about billing problems.

“Otherwise, the Technician Report on Cape Bridgewater is complete.” (See Open Letter File No/47-A to 47-D)

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

Both documents state: “A comprehensive log of Mr Smith’s complaints does not appear to exist.” It did exist, as we have shown. Had this comprehensive log of fault complaints been provided to the technical consultants to assess, they would have had to overrule the arbitrator’s decision not to allow them the extra weeks they had requested, in order to investigate my ongoing billing faults.

“A comprehensive log of Mr Smith’s complaints does not appear to exist.”

Garry Ellicott and Barry O’Sullivan (my claim advisors) had definitely sent a very comprehensive list of fault complaints as part of my submission (see Arbitrator File No/31 & 32). One of those reports was a full chronology of events to assist with reading the comprehensive log of fault complaints. These documents appear to have been lost on route to the arbitrator’s office via Australia Post contributed (compounded) any real chance of proving to the arbitrator my phone complaints were still ongoing.

To be clear so that the reader understands, a dated chronology of my 008/1800 billing issues were submitted to the arbitrator as a chronology of events. Why didn't the arbitrator look for it or call for a second copy when I provided evidence that my claim advisers had sent it.

The arbitrator and his arbitration resource unit failed to value the negative effects that some of these newspaper articles were having on the well-being of my business, particularly when they were combined with various damaging comments from customers, such as: “… the faulty phones had endangered lives and the hospital would not return to the camp unless the phone service could be guaranteed”.

My award was brought down on 11 May 1995. The very next day, the arbitrator wrote to the TIO and discussed one of the deficiencies in the agreement; the insufficient time frame allowed in the arbitration agreement for the “preparation of technical reports” (see Chapter Five below) I had raised this very same issue with the arbitrator the previous week when I requested he give me more time to investigate the disappearance of my comprehensive log of complaints.

Why should my arbitration claim be penalized because of the inadequate handling of the arbitration material once it reached the arbitrator’s office?

As Chapter five shows below, a little more than two hours after Warwick Smith received Dr Hughes’ 12 May 1995 letter, he put out a media release stating:

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

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

Eight damning letters

Letter One 

The first of these eight damning letters was from John Rundell, the Arbitration Project Manager, on 18 April 1995, advised the TIO, the arbitrator and the TIO counsel that:

“It is unfortunate that there have been forces at work collectively beyond our reasonable control that have delayed us in undertaking our work.” (see Prologue Evidence File No 22-A)

The four COT claimants Ann Garms, Maureen Gillan, Graham Schorer and (me) were never told about any of these so-called “forces at work” and nor were we ever warned that, under the nose of the TIO, the TIO’s legal advisor and the Arbitrator, these un-named “forces at work” were allowed to infiltrate and manipulate the arbitration process wherever and whenever they desired, but always with the aim of helping Telstra to defeat the COT claimants.

When these three legal experts, (i.e. Dr Gordon Hughes, Warwick Smith and Peter Bartlett) allowed this very important letter of 18 April 1995 to be hidden from the four COT cases, those so-called ‘legal experts’ directly assisted those “forces at work” to carry out their intended disruption of all four of the COT cases’ arbitrations. If John Rundell had sent a copy of his letter to the four COT cases, as he should have, all four of us could have approached the Federal Government at once because, with Mr Rundell’s letter as evidence, we would certainly have had a very reasonable chance of being granted the rights to have all four processes reviewed and amended, at the very least.  And don’t forget, it was the Federal Government who had originally endorsed those first four Fast Track Arbitration Procedures.

On 26 September 1997, John Pinnock, the second TIO to be appointed to oversee the COT arbitrations as they dragged on, alerted a Senate Estimates Committee (see  Prologue Evidence File No 22-D) that: “… Firstly, and perhaps most significantly, the arbitrator had no control over that process because it was a process conducted entirely outside of the ambit of the arbitration procedures”.  This information definitely strengthens our claim that, if the COT cases had been provided with copies of John Rundell’s 18 April 1995 letter, and if we had then also been warned that our arbitrations were being conducted entirely outside of the ambit of the arbitration procedures, and if we had also been told that that meant that Dr Hughes had no control over the process, we would have had enough information to convince the endorser of our arbitrations (i.e. the Federal Government) to have the entire process immediately abandoned and a new, more reliable process designed.

We also need to remember that the arbitration process was administered under the auspices of the Supreme Court of Victoria and that leads us to wonder now, how appalled the members of the Supreme Court might have been if only they had known about the appalling behaviour of Dr Hughes and Warwick Smith, both throughout our arbitrations but particularly when:

  1. Dr Hughes and Mr Smith decided to allow Telstra to freely manipulate the process, with no oversight in place to stop them; and
  2. These secretive “forces at work” and how they infiltrated the process to benefit themselves to the detriment of the claimants.

These, of course, were those same un-named “forces at work” who had not only threatened me because I assisted the Australian Federal Police with their investigations into Telstra (see Prologue Evidence File No 22-A), but had also carried out those threats.

In the end, however, even though the Senate was informed of this manipulation of a legal process, still nothing was ever done to support the COT cases in any way.  We can’t help but wonder, if this information had been made available to the Federal Government (who endorsed the arbitration process in the first place) would it have been enough to convince them to order the arbitrations to be abandoned and a better, more secure and fairer process put in place.

The Second Damning Letter

Absent Justice - The Second Damning Letter

My arbitration billing issues were raised on the 15th of June 1994 in my Letter of Claim. Open letter File Nos/46-A to 46-J exhibits also show I raised the 008 billing issues on 27 May 1994.

John Rundell, in this 15 November 1995 letter (see Open letter File No/45-A), states:

“As no further progress was likely to be made on these matters, the formal version of the Technical Evaluation Report did not leave the billing issues open.”

In this 15 November 1995 letter, Mr Rundell mentions nothing about my claims of ongoing 008/1800 false recorded message faults telling the callers to my business I am no longer in business. How could a truly independent arbitration resource unit not investigate the worse possible fault being experienced by my business?

Yet the formal DMR and Lane Report, at point 2.23, notes:

“Continued reports of 008 faults up to the present. As the level of disruption to overall CBHC [Cape Bridgewater Holiday Camp] service is not clear, and fault causes have not been diagnosed, a reasonable expectation is that these faults would remain ‘open’.”

This report proves beyond all doubt these ongoing unaddressed billing faults were left ‘open’. At no time did DMR & Lane run a series of tests calls so that they could hear the RVA recorded message when dialling my 1800 number “The number you are calling is not connected.”

Open Letter File No/47-D is page 40 from the final version of the report I received during my arbitration – it includes 14 more sets of claim documents than what is on the list contained in Open Letter File No/47-C.

The issue of these unaddressed 008/1800 billing problems was a central and major factor of my arbitration claim and so these problems are raised throughout This 008/1800 free-call service fault, which so seriously affected the viability of my business, was actually threefold. Firstly, Telstra routed the 008/1800 service through my 005 267267 main, incoming service line, despite Telstra knowing that line was prone to serious problems going back for many years. In fact, the AUSTEL draft findings, which resulted from their investigations into my complaints (see Open Letter File No/4 File No/5 File No/6 File No/7), show AUSTEL condemned the entire phone system that Telstra supplied to my premises. Secondly, both my 055 267267 service and the 008/1800 free-call service were affected by incoming calls failing to connect: telling the caller, “The number you are calling is not connected.”

Both AUSTEL’s records, and Telstra’s, show that this RVA message suggests the business is no longer operating, a terrible situation for any telephone-dependent business-owner to have to endure. I experienced these multiple 008/1800 RVA telephone faults throughout my arbitration, and for years after, because as shown above, the arbitrator handed down his findings prematurely, despite his own technical consultants warning him that because of the: “… fault causes have not been diagnosed, a reasonable expectation is that these faults would remain “open”. For callers to still be advised that my business was no longer operating when it definitely was operating, and for that message to haunt my telephone line for years after my arbitration, was a deplorable situation for anyone to have been left in and obviously raises the question of what the arbitrations were meant to do if it was not to investigate all the phone problems that brought the claimants into the process in the first place?

On page one of Mr Rundell’s letter, dated 15 November 1995, he also advised Mr Pinnock Open letter File No/45-A that:

“Discussions were held with Telecom (Mr Peter Gamble) in Mr Smith’s presence during the visit to Cape Bridgewater in April 1995 which provided the following information.

“A second matter involved 008 calls. Again, this matter was current at a late stage (April 1995) of the Arbitration process”.

Mr Rundell’s statements, in the four bullet points on page two of his letter (see File No/45-A), alleges that during this site visit Peter Gamble and I discussed issues concerning the 008/1800 faults and that I and Lanes (the arbitration technical consultants) agreed with Peter Gambles many explanations concerning the 008/1800 issues I had raised in my claim. These statements to Mr Pinnock are a total fabrication and they suggest Mr Gamble’s assertions, that there was nothing wrong with Telstra’s 008 service, were correct and my arbitration claims, concerning a deficiency in the 008 service, were a figment of my imagination.

If Mr Rundell had told the truth, in his 15 November 1995 letter to Mr Pinnock, he would have admitted my claims were true and acknowledged that I had first raised the ongoing telephone billing problems as a major issue, affecting the viability of my business, in my 27 January 1994 Fast Track Settlement Proposal (FTSP) interim letter of claim. This claim was jointly addressed to Warwick Smith (the first TIO), Dr Hughes (then the assessor) Peter Bartlett (the TIO’s counsel) and Mr Rundell. A 37-page chronology of evidential material, Arbitration Reference Number-P-1289, attached to my submission, was proof enough that my business was experiencing a major telecommunications problem that needed a full investigation. Warwick Smith, however, advised me to sign for the arbitration process because, he assured me, the ongoing billing issues would be addressed as part of that process.

My arbitration letter of claim, dated 7 June 1994 and provided to the arbitrator on 15 June 1994, also referred to my 27 January 1994 settlement letter of claim and Arbitration Reference Number-P-1289. Furthermore, the final versions of the DMR and Lane (arbitration technical consultants) 30 April 1995 report twice directed the arbitrator’s attention to the fact that my complaints were still ongoing and still being reported, right up to the date of their reports. They also advised Dr Hughes, in writing on 30 April 1995, that they had not investigated this part of my claim and required extra weeks to do so.

Absent Justice - The Second Damning Letter

As AUSTEL (now ACMA) and Telstra each wrote to Dr Hughes on three separate occasions, in December 1994. Each of those letters discusses these major ongoing billing issues. AUSTEL’s letter, dated 8 December 1994, to Dr Hughes Open letter File No/46-I even states:

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

It has since been confirmed from Call For Justice Evidence File 12 that AUSTEL first raised these 008/1800 complaints, on my behalf, with Telstra in June 1993 and wrote to Telstra again concerning my claims, on 6 January and 27 January 1994, during my FTSP. Between the 4 October 1994 and 16 December 1994 (see  Open letter File No/46-F to 46-J) AUSTEL and Telstra were writing about these 008/1800 arbitration billing claim documents. In March 1994, Telstra’s CEO, Frank Blount and I discussed the same ongoing billing problems and he advised he would do everything he could to rectify these problems as well as my complaints of network congestion between Warrnambool and Portland. In mid-1999, after retiring as Telstra’s CEO, Frank Blount published Managing in Australia, which acknowledgement this 1800 billing fault as a major Telstra network software problem Home Page Part Two Evidence File No/10 : my unaddressed arbitration claims are still valid.

All three of my individual service lines would lock up at different times after a terminated call. This lock-up problem not only stopped calls and faxes leaving or coming into my business but, on the 008/1800 line, I was charged for the time the line was open even though the call had terminated as the lock-up fault held the line open. When John Rundell, Arbitration Project Manager advised the TIO (see above) that my billing problems were not investigated, he was acknowledging that the lock-up problems on my service lines were also not investigated. In simple terms, by not addressing my billing faults the arbitration process was also not addressing any of my complaints of ONGOING PROBLEMS.

If Mr Rundell had told the truth to Mr Pinnock and explained the real reasons why NONE of those ongoing billing problems was investigated or addressed during my arbitration, then my claims would have been investigated back then, in November 1995. Mr Pinnock wrote to me twice in August 1995, as the administrator of my arbitration, stating that he was obliged to investigate my complaints of such skullduggery. The untruths Mr Rundell concocted in that 15 November 1995 letter immediately brought that investigation to a complete halt.

Did the arbitration resource unit understand that when they failed to investigate the ongoing billing problems, they did not address the cause of the billing issues? The billing issues included calls registering into the holiday camp lines through Telstra’s Call Analyses Charges System (CCAS) that I was charged for, although the connection actually failed, and a fault where successful calls were terminated but the line remained engaged, thus prohibiting incoming or outgoing calls. The failure of the engaged line to correct itself, leaving the line effectively frozen, was significant.

This fault was only obvious when dialling out from the business office. From 1993 onwards, Telstra often advised us to disconnect the phone at the wall socket and then plug it back in to free up the line. This indicates the fault was in either the phone or the actual phone line. In order to dial out of the office when this particular fault was present (it was intermittent), we had to disconnect the line at the wall after every call.

When it was revealed the arbitrator refused his technical consultants the extra weeks they required to assess all of my claims – and thus only 11 per cent of my claim documents were investigated – the government communications regulator demanded Telstra address these arbitration issues (see Open letter File No/46-A to 46-l).

This 3 October 1995 letter from AUSTEL to Telstra’s arbitration defence liaison officer and copied to the TIO, states:

“I write concerning charging discrepancies raised in 1994 by Mr Alan Smith of Cape Bridgewater Holiday Camp regarding his 008 service, and the wider issue these discrepancies raise for Telstra’s 008/1800 customers. These matters have been the subject of previous letters from AUSTEL to you and to [Telstra], dated 4 October 1994 and 1 December 1994, respectively. The charging discrepancies have again been raised with AUSTEL by Mr Smith following the conclusion of his Fast Track Arbitration Procedure.” (See exhibit 46-K / Open letter File No/46-A to 46-l).

On 14 October 1995, AUSTEL’s Darren Kearney wrote to me under the subject heading Charging Discrepancies Related to Telstra’s 008/1800 Service:

“As noted in my letter to you of 4 October 1995, AUSTEL has written to Telstra regarding the issues originally raised by you in 1994. The letter refers specifically to charging discrepancies raised in 1994 by Mr Alan Smith of Cape Bridgewater Holiday camp regarding his 008 service. …

“As previously advised, you will be informed of the outcome of this matter.”

Unbeknown to me, on 16 October 1995, five months after my arbitration was concluded, and hence outside the arena of the arbitration process, the government regulator covertly allowed Telstra to address the worst of the remaining 89 per cent of unaddressed claims (see (See exhibit 46-L / Open letter File No/46-A to 46-l).

When the government regulator allowed Telstra (the defendants) to address civil arbitration issues outside of my arbitration, which prohibited me from legally challenging Telstra (as part of the original arbitration process), the government breached their statutory duty of care towards me as an Australian citizen.

Telstra’s previous CEO Frank Blount acknowledged, publicly in a manuscript published jointly with Bob Joss and titled Managing in Australia, that Telstra suffered from systemic faults. However, we did not acknowledge that when the government communications regulator AUSTEL (now ACMA) allowed Telstra to address some of my 1800 billing faults, outside of the arbitration arena on 16 October 1995, they denied me natural justice, because:

I again ask, why did John Rundell become involved in this 1800 deception? The statements concerning the 008/1800 problems raised by Mr Rundell in his letter of 15 November 1995 (see above), do not coincide with the statements made by Frank Blount, in his publication in Managing in Australia.

This download link Prologue Evidence File No/6 008/1800 billing issues … – Absent Justice  confirms Telstra’s previous CEO Frank Blount’s acknowledgement, in Managing in Australia (1999), that Telstra had a major 1800-free-call billing software problem: the same problem Dr Gordon Hughes, the arbitrator of my case, disallowed his technical consultants the extra weeks they advised was needed to investigate these ongoing problems. Had Dr Hughes allowed his arbitration unit the extra weeks their draft findings stated they needed to investigate my 008/1800 claims (see also Open letter File No/46-A to 46-l), they would have also uncovered that the 1800 service to my business was trunked through the 055 267267 service line. When Dr Hughes stopped DMR and Lane, his technical consultants, from investigating my 008/1800 arbitration claims, did he realise he was also stopping DMR and Lane from investigating my 055 267267 services? This line was still fault-ridden – and remained that way for a further nine years after my arbitration was supposed to have fixed these faults. (See Burying The Evidence File 10-A to 10-C).

Although Telstra successfully suppressed the evidence of these widespread faults in its service during the COT arbitrations, surely, once Mr Blount admitted these faults, publicly in 1999, Telstra’s board of management should have immediately reopened that part of my arbitration claim and awarded me damages. Telstra has, to date, ignored Frank Blount’s admissions.

Combine this letter of 15 November 1995 with the second and third named letters discussed above and below and it becomes obvious that John Rundell, should have been questioned more than twenty years ago concerning his questionable conduct both during and after my arbitration.

It is also clear from Front Page Part One File No/1, that on this occasion on 23 May 1994 six documents faxed from my office to the arbitrator's office did not reach their intended destination. I alerted the arbitrator and actually met with Warwick Smith to discusses these lost faxed arbitration claim documents. I was not given permission to re-send these faxed documents to the arbitrator for reassessment. 

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

  1. How could two separate investigations into Telstra, for allegedly unlawful conduct, be undertaken by two different organisations at the same time, i.e., an arbitrator as well as the AFP? As far as we can find, this situation is unheard of in any other Western democracy.
  2. While all the COT cases attempted to keep their individual small businesses going while their arbitrations continued, how could we be expected to submit complex submissions to an arbitrator and, at the same time, assist the AFP with their investigations?
  3. Why were we COT Cases not allowed to resubmit lost faxed claim documents which we could prove did leave our various offices?
  4. Who decided that this situation would be allowed to continue?

(see Senate Evidence File No 1), record this fact.

Page 180 ERC&A, from the official Australian Senate Hansard, dated 29 November 1994, reports Senator Ron Boswell asking Telstra’s legal directorate:

Absent Justice - My Story - Senator Ron Boswell

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

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

“…Why would Telecom withhold vital documents from the AFP? Also, why would Telecom penalise COT members for providing documents to the AFP which substantiate that Telecom had conducted unauthorised interceptions of COT members’ communications and subsequently dealt in the intercepted information by providing that information to Telecom’s external legal advisers and others?” (See Senate Evidence File No 31)

Thus, the threats became a reality. What is so appalling about the withholding of relevant documents is that no one in the TIO office or government has ever investigated the disastrous impact this had on my overall submission to the arbitrator. The arbitrator and the government (who at the time fully owned Telstra) should have initiated an investigation into why an Australian citizen, who assisted the AFP in their investigations into unlawful interception of telephone conversations, was so severely disadvantaged during a civil arbitration Page Page Part One File No/14)

NONE of the COT Cases was ever on a terrorist list in 1994 (or since, for that matter) and nor was any of us ever listed as suspects in relation to any crimes committed against any Australian citizens. This means that we must therefore ask: why were these innocent claimants’ in-confidence arbitration and Telstra-related documents hacked by Telstra while Telstra was defending the various COT cases arbitrations? In my own case, 42 separate sets of correspondence faxed to the Arbitrator’s office (some with attachments) are not listed on the Arbitration Schedules of Material received by the Arbitration process.  I reiterate concerning the statements I made above It is clear from Front Page Part One File No/1 that even though the Arbitrator’s secretary advised Tony Watson (part of Telstra’s Arbitration Defence Unit) that on 23 May 1994, six of my claim documents were never received at the Arbitrator’s fax machine.  It is clear from my Telstra account I was charged for those six faxes as having left my office, yet no one from the Arbitrator’s office nor the TIO’s office when this matter was exposed, allowed me to amend my claim so that these proven “non received” claim documents were valued by the Arbitrator in support of my claim.

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All of the main events as quoted in this unbelievable true crime story are supported by copies of the original freedom of Information documents linked in the text.

Clicking on these links with your cursor will automatically open a PDF of the exhibit/evidence that a crime was committed. Using this method and following the various file numbers discussed in our various pages, you will verify our story. Without those documents, most people would really struggle to believe that public officials and their lawyers committed the illegal offences they did.

Using the acquired evidence the way we have is possibly a world first.


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

The Hon David Hawker MP

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

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

Hon David Hawker MP

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

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

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

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

Cathy Lindsey

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

Hon David Hawker

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

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

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

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

Cathy Lindsey

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

Sister Burke

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

– Edmund Burke