Chapter 10 and the faults continue
The issues drag interminably on. Are they waiting for me to give up and go away? My faxing problems have never stopped. If documents are sent by courier and don’t arrive, we have recourse through the courier company. If documents sent by fax through Telstra’s network are lost however, it would seem there is no recourse.
The missing faxes
In June 1998 I asked five different businesses to write about the fax problems they encountered with me. Hawker’s Secretarial Service in Portland said, ‘… being the only secretarial service in Portland, my fax machine is a valuable tool in my office and as to date I have never experienced problems with any of my other clients.’ These letters were passed to the TIO’s office. But it is not just the ongoing problem that bothered me. It is the custom I lost.
On 1 July 1998 I wrote to the Deputy TIO, Mr Wally Rothwell regarding faxes that had been ‘lost’ in transit in the course of my arbitration, or which were delivered, but were unreadable. Since the time of my arbitration I have been trying to get this issue addressed.
I copied on to Mr Rothwell a number of faxes returned to me from the arbitrator’s office once the arbitration had been completed. These faxes had arrived at the arbitrator’ office as only half pages or as blank pages. There were also bank statements I faxed to Ferrier Hodgson, which arrived at their office with no details showing. I asked the TIO how FHCA could have assessed my financial position correctly when some of the documents I sent them arrived blank. Predictably, there was no response from the TIO.
On 30 July 1998, the Australian Federal Police wrote that they were unable to help me track down my missing faxes, and on 18 August 1998, the Attorney General wrote that he too could not be of assistance. If the Federal Police and the Attorney General’s office are not concerned about the loss of legal documents in transit via a fax machine, then who can help me?
I also wrote to the TIO and the Minister for Communications, asking them to instruct the arbitrator’s office and the TIO’s legal counsel to supply me with a copy of the ‘missing’ claim documents, under the rules of the arbitration which Telstra and I both signed.
Points 6, 7.2 and 25 of the FTAP rules state:
6. A copy of all documents and correspondence forwarded by the Arbitrator to a party or by a party to the Arbitrator shall be forwarded to the Special Counsel. A copy of all documents and correspondence forwarded by a party to the Arbitrator shall be forwarded by the Arbitrator to the Special Counsel and the other party.
7.2 The Claimant shall within 4 weeks of receipt of written notice from the Administrator pursuant to Clause 5 that he has received completed and signed Request for Arbitration forms send to Telecom and to the Arbitrator in duplicate, its Statement of Claim and any written evidence and submissions (‘the Claim Documents’) in support of that claim.
25 Within 6 week of publication of the Arbitrator’s award, all documents received under this Procedure by the parties, the Administrator, the Resource Unit and/or the Arbitrator and all copies thereof, shall be returned to the party who lodged such documents.
If they adhered to the FTAP rules, Telstra and the TIO’s legal counsel should have had copies of everything I sent to the arbitrator, whether I sent it by mail or fax. And according to the same rules, the TIO was bound to instruct Telstra or their legal counsel to supply me with the ‘missing’ documents. The only conclusion I can draw from this is that the TIO must be aware that the majority of my claim documents never reached Telstra’s defence unit or the legal counsel in the first place, and therefore knows it is pointless to direct them to return these documents to me. Very little in the actions of the TIO has reassured me or the other members of COT as to the capacity for impartiality of that office in its role as standing between us and Telstra.
On 26 February 1999, I sent three faxes to COT member, Graham Schorer: the first and third of these arrived at Graham’s office as intended but the second did not. Graham’s fax journal shows the two faxes which were received, marked with an arrow. According to my Telstra account, I was duly charged for the long-distance transmission of all three. If I hadn’t happened to phone Graham to discuss the document which didn’t arrive, we might never have discovered it had ‘gone walkabout’ between our faxes. Now most people would accept a single incident like this as just a ‘blip’ in the system. Unfortunately this has happened on too many occasions, and it was happening back in 1994 over the months during which I was lodging my claim with the arbitrator.
We also have to wonder how many other similar occurrences have not been noticed over the years and how many individual or business people send faxes and never discover that they didn’t arrive at their intended destination and so happily pay their Telstra accounts.
Still trying to get my original claims addressed
On 17 February 1998, I sent the TIO a bound submission detailing my continued and ongoing incorrect charging by Telstra. The submission started with the beginning of my arbitration and included copies of pages of the transcript of the oral hearing conducted on 11 October 1994 with Telstra, the arbitrator and myself, and a representative of the TIO, showing that my claim documents relating to incorrect charging were accepted into the arbitration procedure. There were several pages explaining the significance of the material I was submitting, so many that, on page 94, the arbitrator is reported as stating during the course of the oral hearing, ‘I don’t think we need any further examples.’
Yet even with this mountain of evidence the TIO still stated that the problem began only ‘at a late stage of the arbitration process.’ It’s as if it would stick in his throat to actually present my case on its own terms, impartially. On the positive side, the TIO did respond. He asked Telstra whether they agreed ‘that this matter was not addressed’ in my arbitration. Wake up! I felt like yelling, not for the first time. Of course, at the time of writing this, I have yet to receive Telstra’s response. I’m not holding my breath. I can only suppose that a judgement against Telstra in the matter of incorrectly charging their customers on a regular basis would set a dangerous precedent. I pay the price, while Telstra avoids facing the issue at all costs. And behind Telstra stands the TIO, and Austel, and the government.
In 1998 I also sent the transcript of the 1994 oral hearing to the TIO and the Minister for Justice, alerting them to how, at that time at least, the arbitrator agreed to address Telstra’s tapping of my phone lines and listening to my private phone calls during the arbitration procedure.
Arbitrator to Smith: ‘... effectively any reference in your claim documents to date regarding unlawful phone tapping will be treated by me and the resource unit as unsubstantiated and therefore not relevant for the purpose of determining whether you’re entitled to compensation.’
Me: ‘No, I will leave it in the claim because —’
Arbitrator: ‘You understand if you leave it in your claim, Telecom is entitled to ask what is the basis for this allegation?’
Me: ‘Right, Okay, yes, all right.
Arbitrator: ‘So you want to leave the allegation in?
Me: ‘I will leave the allegation in.’
But these claims were not addressed, either in my award, or by the TIO, or indeed by the Minister.
If Telstra is allowed to get away with eavesdropping on businesses while it is government owned, then what does the future hold for Australia once it is completely privatised, with no government control at all? Even now, how many other businesses are having their private matters watched? How many overseas investors are being ‘bugged’ without their knowledge? How many businesses fighting a take-over bid have their private information passed around to whoever might benefit from a bit of inside knowledge? How many faxes are copied to someone other than the intended recipient?
An article on electronic security in the Melbourne Age of 10 October 1998 reported that it was possible for anyone with access to Telstra’s network to monitor faxes as they are sent and to keep copies without the sender’s knowledge. This article also pointed out that telephone operators can eavesdrop on calls and Telstra can access all calls, though this is supposed to be under strict controls.
After three more years of telephone complaints after my award was handed down — of line-locks, dead line problems, missing faxes and the 1800 billing problems — Telstra finally sent two representatives to see me at Cape Bridgewater on 14 January 1998. By this time I had put together a mass of evidence consisting largely of Telstra’s own data and my itemised accounts. The two Telstra representatives explained they were liaising with the TIO’s office regarding my complaint that my arbitration had not addressed a number of issues raised in my original Letter of Claim. They considered my evidence sound, and took it away with them. In their notes of this meeting they said:
… Mr Smith produced various printouts of CCAS data in comparison with his Telstra accounts. In many instances the calls add up however, in some cases there appeared to be differences in the duration of the call time. I note that the examples given by Mr Smith at the meeting spanned the period of the Arbitration and after the conclusion of the Arbitration.
Senator Alston wrote to David Hawker my Member of Parliament on 27 February 1998 and again on 29 May 1998 telling him that Telstra was examining the documentation with a view to resolving my concerns. Things were looking promising, I thought.
Then in a letter dated 9 June 1998, the Deputy TIO referred to an intended meeting with the arbitrator, in order to ‘clarify whether he did consider the 1800 issue during the arbitration.’ Pay attention, I felt like shouting. There had never been any doubt about this. A 15 November 1995 letter from the TIO-appointed Arbitration Project Manager to the TIO was quite clear that NONE of the billing issues, including the 1800 issues, were ever investigated during my arbitration. And on 3 October 1995 Austel wrote to Telstra, with a copy to the TIO, asking why the billing issues I raised during my arbitration had NOT been addressed.
In July 1998 seven letters passed between the TIO office and me, all proving that many of my claim documents which my Telstra account shows were faxed to the arbitrator’s office in 1994–95 had either not arrived, or had arrived in a damaged state. Yet on 25 August 1998, Mr Pinnock (TIO) wrote to me:
The only issues that I am considering, as the former Administrator of your arbitration, are the alleged overcharging for your 1800 service and matters pertaining to your Gold Phone service, and whether they were considered in the final award.
There is no mention of my complaints of lost faxes, not even an explanation of why he is not considering them. I have to wonder, is there some reason behind this omission? My submission was very clear about the importance of the issue of the lost faxes. Why was he avoiding it? Mind you, nor did he address the issues he said he was considering.
In June 1996 I had written to advise the TIO that four 1800 billing claim letters addressed to the arbitrator had not been provided to me during my arbitration. On 2 August 1996, in response to that letter, the Resource Unit admitted to the TIO and the arbitrator that they had indeed withheld these letters. In 2002 I received back a copy of my letter to the TIO dated 26 June 1996, and found that the TIO had added a handwritten note at the bottom of this letter, stating: ‘These are quite serious allegations. We need to respond to specific letters Smith says weren’t forwarded or received and provide answers on each.’
I have sent some sixty to seventy letters to the TIO since 1996, asking his office to follow up on these ‘serious allegations’ (which are in fact not allegations, but the truth). The TIO’s office has refused bluntly, and reminds me that if I am not satisfied I can take them and the arbitrator to court, well aware that I do not have that sort of money.
I call this criminal collusion. What is more, as I have already shown, Austel and the TIO allowed Telstra to secretly address these same four 1800 billing documents in October 1995, five months after the end of my arbitration. Had the TIO and the defendants concocted some deal so these billing documents could be hidden from the arbitrator and me? And why? So that Telstra could address them outside of the arbitration, compromising my legal right to challenge Telstra’s defence of these documents.
Telstra’s CEO, Frank Blount, admitted the breadth of this 1800 billing problem in his 1999 book Managing in Australia. Not only the billing, but most aspects of the performance of the 1800 ‘product’ were, as the book notes, ‘sub-standard’, and Blount’s response, when apprised of this, was one of ‘shock’.
And Telstra management certainly knew this four years earlier when they knowingly supplied the government regulator with grossly inaccurate information in my arbitration, and indeed when the Resource Unit’s technical consultants refused to investigate the evidence regarding my 1800 line.
Finally I have had enough
In June 2001 I put the business up for sale and in December that year Darren Lewis took possession. Cathy and I kept the property next door. I believed that the problems with Telstra had become a personal vendetta and that they would disappear when I was no longer involved. Alas, that was not the case.
From March 2002, Darren Lewis wrote numerous letters to the TIO, complaining of fax related problems of a similar nature to those I had suffered. Mr Lewis received the support of the Hon David Hawker, who wrote to him in October 2002:
Given the serious communications problems encountered by the former proprietor of your business (Mr Alan Smith), I intend to make representations on your behalf directly to the Federal Minister for Communications and Information Technology.
In November 2002 the Channel 9 Sunday Program featured the camp in a story on various COT cases and Telstra. Following the program, I received a letter from a Barry Sullivan:
After viewing the Sunday programme, I realise the similarities your business and others had with Telstra ten years ago with the similarities our building business had, when we lived at Bridgewater. During a period of time between the late 1980s and early 1990s we had considerable amount of difficulty with our phone. Our phone problem had such a negative effect on our building business over a period of time that our work dried up.
I had not come across Barry Sullivan’s case during the time of my arbitration. In fact, Austel had passed on to Telstra information regarding other Cape Bridgewater residents who were experiencing ongoing telephone problems similar to the ones I had experienced, but kept this information from me (and presumably the arbitrator) during my arbitration. By the new millennium though, the issue was well and truly public. Under the headline ‘Plans afoot to attract tourists’ the Portland Observer wrote on 8 August 2003:
The Cape Bridgewater Tourist Association is planning a major swimming event each New Year’s Day in a bid to attract tourists to the area. At their meeting on Tuesday, association members also expressed continuing problems with the telecommunications into the area.
One operator Denis Carr said he had been told Telstra was rectifying the problem.
I hope he wasn’t holding his breath.
Meanwhile, things were not improving for Darren Lewis. In November 2002 an article in the Portland Observer noted:
The telecommunications problems which plagued former Cape Bridgewater Holiday Camp operator Alan Smith have continued to beset current owner Darren Lewis. Mr Smith is a founding member of the Casualties of Telstra. Mr Lewis said this week he had experienced several problems with the phone and fax service since taking over the Cape Bridgewater Holiday Camp last year.
‘Telstra admits there is a fault and they are trying hard to solve it,’ he said.
But in January 2003, Darren Lewis was obliged to write to the TIO John Pinnock:
As well as speaking to David Hawker’s representative this morning, I also had a disturbing discussion with Tony Watson, the Telstra fault technician assigned to my case. Mr Watson informed me (in a roundabout way) that he is reluctant to supply me with any more information in relation to our phone faults because he knows I am in contact with Alan Smith, the previous owner of the business.
Was Telstra afraid I might attempt to reopen my arbitration? Or was Mr Watson still holding a grudge against me because of something that was supposed to have been addressed in my arbitration nine years before? Either way, it is outrageous that Darren Lewis had to suffer such treatment — and that such treatment is basically endorsed by the government, which refuses to confront Telstra.
Back to the politicians
In 2002 there was another attempt to initiate a government investigation into the travesties around the COT arbitration cases, this time by Senator Len Harris of Queensland, who wanted to see justice for the sixteen COT cases who missed out following the Senate Inquiry. The Senator was advised the government would look into those cases he had raised, but no investigation ever took place. The same issues were raised again, three years later, by the newly elected National Party Senator, Barnaby Joyce, who had just toppled Senator Harris for the same Senate ticket. Both Senators, representing two different parties, felt strongly about the denial of natural justice in the COT cases and were determined to redress it.
In July 2005 Senator Joyce agreed to add his vote to ensure the sale of Telstra went through the Senate, but only on the condition that the unresolved arbitration issues of the COT cases were properly and officially dealt with. But, once he had cast that crucial vote, the Minister for Communication Helen Coonan did a back-flip on her word and the COTs were shafted yet again. Senator Joyce was livid, and for a year demanded the justice he had paid for, but in vain.
In March 2006 Minister Coonan did, however, agree to a government process in which public servants would conduct a commercial assessment. Only two (out of what were then fourteen) COT cases agreed to this process, and I was one of them. The other twelve had no illusions that their claims would be truly independently assessed.
To support my claim that my arbitration had NOT rectified my phone and faxing problems the Hon. David Hawker, then Speaker in the House of Representatives, submitted a statutory declaration by Darren Lewis, the new owner of the business:
After Telstra rewired the business including disconnecting a Telstra installed faulty phone alarm bell, we were informed Telstra had found other problems and believed whoever had installed the wiring had done an unprofessional job. Internal Telstra documentation provided to me by Alan Smith confirmed Telstra themselves had done the wiring. Jenny and I noticed that although our incoming call rate had more than doubled once this wiring had taken place Telstra was still unable to provide a satisfactory reason as to why we were still having problems.
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 so close to the Beach Kiosk (junction box) this could very well be part of the problem ... It was on this note that the technician informed me that although it was a backward step he was going to investigate the possibility of moving the business off the optical fibre and back onto the old copper wiring.
Despite such strong confirmation of my case, Senator Coonan wrote to me on 17 May 2007 regarding her representation to Telstra on my behalf:
Telstra is not prepared to undertake an alternative means of pursing this matter. I also appreciate the depth of feeling regarding the matter and suggests you consider whether any court proceedings may be your ultimate option.
I can only wonder at the power Telstra wields: it seems impregnable.
