Chapter 7 Telstra’s defence

Telstra’s response to my claim arrived on 12 December, a bound document entitled ‘Telstra’s Legal Submission (1994)’. I felt sickened before I even opened it. I still hadn’t received most of the FOI documents I had requested, and here they were, making a response on the basis of little more than half of my submission.

That was the least of their perfidies. Here arises the infamous story of the sticky beer in the phone.

In Chapter Five I related the story of how Mr Matherson of Austel helped me test two different Exicom model TF200 phones on the one line in an effort to find out if the ‘lock-up’ fault I had been experiencing was being caused by the phone or the phone line. These ‘lock-ups’ had meant that people on the other end of the phone could hear what was going on in my office after I had hung up. When we had completed these tests, Mr Matherson was quite adamant that we had proved that the fault was in the line because it occurred with both phones. Documents which I later acquired also showed that Telstra was aware that this fault often occurred in moisture prone areas like Cape Bridgewater.

My copy of Telstra’s Legal Submission, however, included a 29-page report titled ‘T200’. This document argued that the ‘lock-up’ problem with my phone/fax had been caused by spilt beer, found inside the casing of the phone.

For the record, the phone was removed from my office on 27 April 1994 but not received into Telstra’s laboratories until 10 May 1994. According to photographs included in this report, the outside of the phone was very dirty and, according to the technicians, when they opened the phone up, the inside was ‘wet and sticky’. Analysis of the wet and sticky substance showed that it was beer and the conclusion was that the ‘beer’ had caused the ‘hook switch’ to lock up. (AS1890) .  So, my drinking habits were the cause of my phone problems. The technicians didn’t know that Mr Matherson and I had tested two different phones on that line and found the same fault.

Moreover, when the phone left my office it was quite clean — so how did it arrive at the laboratories in such a filthy state? If the ‘beer’ was not deliberately introduced, how did it get inside the phone? It certainly wasn’t even accidentally spilt there by me.

I put in a request with the arbitrator for a copy of the laboratory technician’s notes so I could see how they arrived at their conclusion. I explained I had appointed my own forensic document researcher to look over the documents. In response I received another copy of the original report — another instance of one rule for COT claimants and another for Telstra. Only a few weeks before, the arbitrator had allowed Telstra’s forensic document researcher access to my personal diaries.

I cannot begin to explain the anger that simmered inside me. I needed to expose the lengths Telstra had gone to with this ‘beer-in-the-phone’ farce. I knew they had faked the evidence but I couldn’t prove it. And no matter who I contacted about this — Senators, the arbitrator, the arbitrator’s secretary — no-one cared to know.

Telstra was even saying ‘beer-in-the-phone’ was the cause of my ongoing fax problems, so I set about accessing Telstra’s technical analysis data covering the times when my fax problem was at its worst. This data showed that the ‘lock-up’ fault had been occurring in the network system since at least August 1993. So I asked the arbitrator to ask Telstra how ‘beer’ could stay wet and sticky inside my phone from August 1993 to May 1994.

In fact, this data wasn’t even necessary to prove my case. Telstra had supplied a new phone to replace the one they took away, and it was no surprise to me that, according to their own data, the lock-up problem remained after the ‘dirty’ phone was replaced. It was still a problem when I sold the business in 2001.

As to Telstra’s assertion that the telephone was ‘very dirty’, it is fortuitous that, just before the technician took the phone away for testing, I had attached a white label to the front advising staff this was the phone to use. It was perfectly clean, as the photo Telstra took when it arrived at its laboratory shows. They had failed to keep track of their deception. You don’t need a forensic document specialist to see the difference between the two photos provided by Telstra, reproduced here as (Main Evidence File No/17 and the Arbitrator File No/30). Yet I could find no-one willing to challenge Telstra on tampering with evidence in a legal process, which is a criminal act.

I had urgently and constantly requested the Exicom/TF200 laboratory testing results for my arbitration, which was not supplied by March 1995, so I lined up Paul Westwood, of Forensic Document Services to investigate my suspicion that Telstra’s TF200 report was fraudulent. The arbitrator, however, refused to appoint him, and there the matter remained, until November 1995, six months after my arbitration was declared final, when there came another instalment of the ‘beer in the phone’ saga.

In a bundle of FOI documents was a laboratory report which showed that Telstra had carried out two investigations into my TF200. The second (on 24–26 May 1994) was two weeks after the first (10–12 May), and it proved that the first one — whose results had been provided to the arbitrator — was a total fabrication. Someone in Telstra had realised the first report was in some way dodgy, and had authorised the second.

The second report, hand written by Telstra laboratory staff, included graphs and photos and it showed that, when wet beer was introduced into the TF200 phone it dried out completely in 48 hours. My phone, found to be ‘wet and sticky’ in the first report, had not been tested until 14 days after it had been taken from my office. There was no way it could have been ‘wet and sticky’ after two days, let alone two weeks.

So Telstra management knew, when they submitted that first report as part of my arbitration, that their second laboratory investigation had proved the first one was (to say the least) unreliable. But even with this freshly received evidence in December 1995, the TIO refused to investigate.

Beyond the beer in the phone deception, many other misleading statements were made under oath by Telstra’s defence unit and their technicians and included in their Legal Submission. Most disturbing of these were the signed Statutory Declarations made by some of the local technicians who knew from experience that Telstra’s network system into the local exchange was not up to standard, yet who still signed these legal documents that insisted everything (except for some minor, everyday type faults) had been all right during the period covered by my claim.

One local technician went so far as to say that he knew of no other business in the Cape Bridgewater area that reported the type and number of phone problems that I had. His statement even included mention of a friend, a stock farm agent, who had never had phone problems in Cape Bridgewater. When I checked Telstra’s own fault data, however, this very friend had, in fact, complained seven times in a matter of weeks during early 1994, including complaints about his fax line.

Another three local technicians stated under oath that back in 1988 when I moved to the area, the old RAX exchange at Cape Bridgewater had five incoming and five outgoing lines, and that any ensuing congestion would not have affected my service much during business hours. In fact, the exchange had only four lines in and out, and Telstra’s archives shows congestion was a problem between the Cape Bridgewater and Portland exchanges.

The worrying thing is that, if these three technicians truly believed their story, they were not very good at their jobs. Someone should have noticed there were only eight final selectors!

 

My reply to Telstra’s defence, January 1995

By chance, it was during this time I saw the American movie Class Action, the story of a pharmaceutical company that knew the dangerous side-effects of one of its drugs, but continued to sell the drug anyway. A chemist preparing a report for the company finds a flaw in the production of the drug, and the company chose to ‘lose’ the report rather than spend the money to correct the flaw. Business as usual. What struck me about this story though, was how the pharmaceutical company swamped the lawyer representing the patients with thousands of documents at the very last minute so that the lawyer had a very hard job finding a key report in time. According to the movie, this process of ‘burying’ important documents is called ‘dumping’.

Just before Christmas, and eleven days after they had submitted their legal defence, Telstra ‘dumped’ approximately 24,000 discovery documents on me — the very documents I had been waiting for in order to make my submission complete. And of course, the material I needed was buried in masses of irrelevant documents.

Clearly, this was a ploy. Telstra thought that by supplying them after I’d made my submission, it wouldn’t have to defend those documents, especially given I had only two weeks in which to submit my reply to Telstra’s defence.

The festive season is always the busiest time for bookings. Fortunately Cathy had, by this time, moved into the camp house. Without her assistance I would never have survived through this time. Christmas slid past in a blur and I found myself with still thousands of discovery documents to sort through. It was a miserable job.

On 6 January I sent the arbitrator a list of procedural documents I needed to support my response, asking him to request these documents from Telstra. By my deadline, however, I was still waiting and had to file my response without them. I was at a loss to know where to turn for help. Again and again I was faced with the same tactics. Stonewalling and silence. (The documents I requested did eventually turn up, two years later.)

The arbitrator did, however, respond to a letter I sent asking for more information about the Bell Canada report. In his reply on 23 January 1995, he said: ‘Telecom does not consider it has any further information of relevance in its possession.’ He asked me to respond to this within 24 hours in order to ‘be certain that there is no confusion between the parties as to the documentation which is being sought.’

I did respond, within the 24 hours, asking for all the raw data Telstra had concerning the BCI testing at Cape Bridgewater. And heard no more about it. No data, no response of any kind.

My fax account shows that my response left my office and travelled to the arbitrator’s fax machine. Twelve months after my arbitration procedure was completed, I learned that Telstra did not receive this response. Then, on 28 June 1995 I learned that the arbitrator, apparently, had not received the fax either. The newly appointed TIO, wrote to me:

(The arbitrator) provided you with a copy of this submission on 23 January 1995, noting that Telecom did not consider it had any further information of relevance in its possession. (The arbitrator) then invited you, within twenty-four hours to respond to Telecom’s submission. Our files does not indicate that you took the matter any further.

This level of misplacement is astonishing. What happened to my fax? I might have imagined it simply got lost in the ether. But in August 1995 (three months after my arbitration), in a bundle of documents from the arbitrator’s office, there it was, a copy of the actual letter I sent to Dr Hughes, with the fax-footprint: ‘24-01-1995 – 15:12 – FROM CAPE BRIDGE HDAY CAMP TO 036148730’ confirming the arbitrator's office did receive it as Front Page Part One File No/2-A to 2-E shows.

Despite this irrefutable proof, the TIO’s office has refused to provide me answers to why this most important BCI letter was never acted on. Had it been, the whole outcome of my arbitration might have been different.

A visit by FHCA

In February 1995 I was visited by people from the arbitration financial unit (we shall call them - FHCA) to assess my financial losses resulting from the failures in my phone service. A representative from Telstra came separately and was delayed by poor landing conditions at the local airport. FHCA was supposed to provide a list of who they interviewed and where they went on their trip to Cape Bridgewater and I had been led to believe that they provided just such a list to Telstra, but I never saw any documentation myself.

Under the rules of the arbitration, neither the resource unit, the technical advisory unit or FHCA was allowed to be alone with either Telstra or with me but there was not much we could do about the two hour delay between the time the FHCA and the Telstra people arrived, except for FHCA’s solitary inspection of the general area. When the Telstra representative finally arrived I saw FHCA’s true colours: everything I said was ignored or negated. FHCA already had fixed ideas about this case. The way they played down my business in front of the Telstra representative was a clear indication of what was to come.

Bearing in mind that FHCA and Telstra were not supposed to spend time together without me, I had arranged lunch at the camp. My offer was, however, declined and the others all adjourned to the Kiosk by the beach, contrary to the rules of the arbitration. What could I do? They all returned later, and left together for Melbourne.

Well into 1995, I was still struggling to collate all the FOI documents I was still receiving, so late into the process, into some sort of sensible order. As I understood it, the arbitrator was not accepting any more material in support of my claim, but I was still being charged for calls which never connected, and I hoped for another oral hearing. I phoned the arbitrator to ask for access to the technical resource unit, for their help in best presenting all this evidence of ongoing problems; I explained that I could not afford to pay my own technical adviser any longer.

The arbitrator told me that the technical resource unit, would be visiting Cape Bridgewater shortly and we could discuss the presentation of my material then. Before that visit occurred however, DMR Australia pulled out of the process and a new technical unit was commissioned by the TIO’s office: (we shall call them LS Telecommunications), run by a man who had worked for Telstra for 20 years. (DMR Australia, it transpired, had pulled out because Telstra offered them valuable contracts and DMR saw a conflict of interest. I had to wonder: did Telstra deliberately set up this ‘conflict of interest’ situation? And, how could DMR pull out of a signed contract?)

Ann, Graham and I told the TIO we did not want our claims assessed by an ex-Telstra employee and so DMR Group Canada was brought in to lead the process, with LS merely assisting. As it turned out, however, and contrary to the written agreement given by the TIO, LS did most of the assessments. Once more the TIO had misled us.

On 6 April 1995 a Telstra official arrived at the camp and together we collected a representative from LS from the airport. While I hoped to discuss my own concerns with ongoing phone problems with the Lanes representative, the visit was in fact a component of the arbitration process. The technical resource unit needed to make a general inspection of my premises, and the two local exchanges.

The three of us inspected the exchanges at Cape Bridgewater and Portland and had discussions with the local technician (the one with the stock farm agent friend who never had problems with his phone).

While the LS representative was in Cape Bridgewater, I attempted to raise the incorrect billing issues. But apparently, the arbitrator had instructed LS not to assess any new claim material. I was angry, for the arbitrator had assured me that if I discovered any new information among FOI documents, that information could be presented to the technical resource unit when they came to the camp. I had worked night after night to have my evidence prepared before the technical team arrived and it was clear to me that this new information supported my allegations. I was so angry, in fact, that he agreed to look at one document.

How could I be charged for a 9.49 minute call on 13 January 1995 at 11.50 am, I asked, and then for a 42 second call at 11.57 am? This is an impossibility. This caught the attention of the LS representative and he agreed to look at further examples of incorrect charging on my 1800 account as compared to my diary notes. Such unacceptable charging had been running rampant through Telstra’s network, just as this copy of my account shows (see False Witness Statement File No 17-A).

Neither the Telstra official nor the Lanes representative was prepared to comment on this evidence during my arbitration, although I was assured that the matter would addressed. They left shortly after this, together — and without me, which was in direct breach of the rules of arbitration. Who knows what private conversations may have taken place between them. On so many counts, now, I was convinced that the arbitration was a sham, with the single aim of ‘shutting me up’ with some minimum award.

But after they left I had an idea. The Commonwealth Ombudsman’s Office had been supportive of my allegations concerning Telstra’s failure to supply discovery documents in a timely manner. Throughout this whole awful saga they had, again and again, proved themselves to be impartial and concerned primarily with natural justice.

The Commonwealth Ombudsman’s Office was preparing a report on Telstra’s tardy provision of COT’s discovery documents under the FOI Act, and I guessed that it would keep a copy of every document I had faxed them or they had faxed me. I therefore asked them to use my 1800 number for any calls to me, because I guessed they would also document any calls they made in relation to my complaints. I was betting that the Commonwealth Ombudsman’s Office’s tally of those calls would not match up with my 1800 account.

And indeed, two years later, on 28 February 1997, the Commonwealth Ombudsman’s Office presented a document to Telstra, covering all communications between my office and theirs, as part of their report to Telstra’s Corporate Customer Affairs Office. This report documented all faxes to and from me, as well as all calls to and from my office — they made 43 calls to my 1800 account. Bingo! Over this same period Telstra charged me for 92 calls from the Ombudsman on my 1800 account. In their investigation, the Commonwealth Ombudsman’s Office confirmed these events. 

So, it had been a sound idea, not that it helped my case. At the time of writing, Telstra has still not refunded me for these wrongly charged calls, nor made any attempt to explain the discrepancy. Nor has this matter been investigated by the TIO’s office, though the Commonwealth Ombudsman’s data demonstrated that incorrect charging on both my 1800 line and my fax line (in every instance, favouring Telstra) continued for at least 18 months after the arbitrator handed down my ‘award’. Since this incorrect charging was one of the issues I raised in the arbitration, and it was not addressed or included in the ‘award’, I do not consider the arbitration procedure is yet complete. I have written several letters to the TIO’s office about this matter, to no avail.

The arbitrator was due to hand down his award on 11 May 1995. Before that day, though, came the DMR/Lanes report on the technical losses and the FHCA financial report. The dire content of both these documents prepared me for a very poor final result.

TIO-technical report

On 2 May I received the TIO-technical report, dated 30 April 1995, on the phone faults my business suffered over the period of my claim. Outrageously, this report left out more than half my claim documents. Despite numerous requests, the TIO would not investigate why both the arbitrator and the TIO consultants allowed so much of my claim material to be left out, or indeed who authorised a supposedly independent technical resource unit to ignore claim documents in a legal procedure.

All the incorrect charging issues had been ignored, as had the issues of lost faxes and phone faults that continued throughout the arbitration process, that were even then still losing me business. Nor had they touched the ‘lost’ incoming calls, charged for but not received.

There were some concessions in the report. The TIO consultants did acknowledge that they had not assessed all my claim documents. And they did find a number of my claims to be proven and found against Telstra on a few issues, but to nowhere near the extent that could be reasonably expected on the basis of my claim documents. For just one example, I cite material related to my gold phone, taken from a section covering the telephone exchange, referred to as RCM 1, which my coin-operated gold phone was connected to for most of the time. (The DMR/Lanes report drew on Telstra’s own data and records.)

2.2      There were consistent problems with the RCM system. Mr Smith’s services were carried on RCM No 1 until February 1994. This system had a track record of problems, and the RCM system components were the subject of several design corrections (Work Specifications). These issues were likely to cause a range of problems (as reported) over the period August 1991 to February 1993 (a period of 18 months) when Mr Smith’s services were transferred off RCM 1 and service improved. Specific problems caused are covered in later paragraphs (ref: 2.8, 2.9, 2.21).

           ASSESSMENT – Service was less than reasonable.

2.8      RCM 1 failure due to lightning damage. Lightning damage to communications equipment would be expected from time to time in this area. Reasonable service relates to the time taken to return the service to normal. A reasonable expectation would be repair within less than the 4 days actually taken.

           ASSESSMENT – Service was less than reasonable.

 2.9     Evidence of problems with services on RCM 1 had been sufficient to cause Telecom to move the CBHC services away from RCM 1 to RCM 2 and 3. Later when the RCM equipment was examined by Melbourne staff, evidence of severe error levels had accumulated on the counters in the transmission equipment (particularly RCM1). After corrective action these severe error levels were no longer accumulating.

           ASSESSMENT – Service was less than reasonable.

So far, so good. But then the report summarises the situation:

Intermittent effects on the gold phone resulted in it being removed from RCM 1 11 days after potential cause (lightning strike damage to RCM 1). At the time of removal the actual equipment fault had not been found, although testing was continuing. This seems to have been a reasonable action and timescale under the circumstances.

ASSESSMENT – A reasonable level of service was provided.

So, while at 2.8, four days was deemed an unreasonable time-frame for repair, in the summing up they find eleven days was reasonable. Moreover, the ‘11 days’ is itself in error. The lightning strike occurred in November 1992 and the fault wasn’t rectified until late January 1993, which amounts to almost three months out of service, not 11 days.

But these are just details. In total, there were four paragraphs dealing with the gold phone, and in each one service was assessed as less than reasonable. And yet the summary assessment was positive. This is not even logical, let alone fair. It is incomprehensible that they gave the gold phone a positive assessment, since they acknowledge at 2.2 that RCM 1 ‘had a track record of problems’. My claim documented more than six years of continuous customer complaints about the gold phone, in diary notes and letters. Ah yes, these were among the documents they did not assess.

I challenged DMR/Lane’s assessment of my gold phone and supplied both Telstra and the TIO’s office with conclusive evidence, including Telstra’s own documentation, of continuing problems with the gold phone. To no avail. In December 1995, I had finally had enough, and I refused to pay the gold phone account until its faults had been acknowledged. Telstra’s response was to cut the phone off.

FHCA financial report

FHCA’s financial report was even more of a nightmare. It was incomplete; it did not show the workings which resulted in their findings which were to downgrade my true losses by as much as 300 per cent in some areas. It was so incomplete, it was difficult to challenge it, for there was nothing substantial to grasp in it. The errors of logic were painfully elemental.

For instance, although the FHCA report acknowledged that my business accommodated social clubs as well as school groups — ‘An analysis of the clientele of Cape Bridgewater Holiday Camp shows that only 53% were in fact schools’ — it based its calculations of business losses on the lower end of my revenue base, the $30 per two overnight rate for school groups, compared to the $120 to $160 charged for the 47% that were fully catered social club patrons. Given an approximately fifty-fifty split of school and other groups, this downgraded my losses by a minimum of at least 300 per cent.

Derek Ryan, my forensic accountant, was shocked at its handling of the arbitration procedure and wrote a 39-page report to the arbitrator detailing the failings he had found in it, including actual errors. For a couple of instances:

1.        The FHCA report does not include any detailed workings so we have endeavoured to recalculate the FHCA figures given their assumptions and the base figures which were included in our report dated 21 June 1994.

           Our recalculated figures are still higher than the FHCA figures and we are unable to determine the reason for this.

2.        We believe that the FHCA report contains many inaccuracies and in the main area of loss quantification is simply wrong. The main calculation of loss has been considerably understated by an error logic.

           The error of logic appears to arise from the fact that FHCA reduce the total bed capacity by the night utilisation of 48% (to give available bed capacity) and FHCA then apply the bed occupancy rates to the available bed capacity. It is incorrect to reduce the total bed capacity by both of these factors.

Derek received no response from the arbitrator, so he contacted the project manager of my claim at FHCA, to ask how he had arrived at his findings. The project manager explained that he had instructions from the arbitrator to exclude a large amount of information from his final report. This meant the so-called independent arbitrator had forced the so-called independent financial assessors to ‘doctor’ their report. Derek wrote to Senator Richard Alston, Minister for Communications and the new TIO, to express his professional disappointment with FHCA. He considered their conduct detrimental to my claim because, since their report was incomplete, he had no firm base on which to formulate his response or, indeed, to challenge the report.

Six years later, and too late to make any difference, I received from the TIO’s office a copy of a letter dated 13 February 1996, from the Project Manager of FHCA to Mr the TIO, written evidence that the FHCA financial report was incomplete: ‘...I did advise Mr Ryan that the final report did not cover all material and working notes.’ .

Instead of the TIO Mr Pinnock providing this letter to me, within the statute of limitations period so I could use it in an appeal against the arbitrators’ award, Mr Pinnock concealed it until 2002 – outside the statute of limitations.

However, between 18 October 1995 and 4 October 1997, with the assistance of Mr John Wynack, director of investigations on behalf of the Commonwealth Ombudsman, I sought, under FOI, from Telstra a copy of their arbitration file on my matters. Home Page File No/82 confirms Mr Wynack did not believe Telstra’s claim that it destroyed the file. I also tried to access a copy of the same arbitration file held by the TIO office, which, as the administrator of my arbitration – under law – had to retain a copy for at least six years: until 2002. Mr Pinnock (the administrator) of my arbitration in his letter, of 10 January 1997, in response to my request, states:

I refer to your letter of 31 December 1996 in which you seek to access to various correspondence held by the TIO concerning the Fast Track Arbitration Procedure. …

I do not propose to provide you with copies of any documents held by this office. (See Open Letter File No 57-C)

It became obvious by this time of the February 1996 letter, that the TIO arbitration resource unit and the arbitrator had collaborated with Telstra in ensuring my singles club (my second business) would not be assessed as a separate business loss and did not take into account the higher revenue loss of my single club dollar, but only valued my losses at the lower tariff I charged for school groups. However, I wanted something more substantial – perhaps the actual working notes, which were removed from the FHCA report under instruction by Dr Hughes (see Open letter File No/45-E), and would have detailed my singles club information that I provided FHCA in February 1995. This single club material was never returned to me after my arbitration was finalised. The losses associated with my singles club patronage (which were never taken into account by the arbitrator) are also discussed in the Front Page Part Two page.

I very much doubt that the TIO informed Senator Richard Alston of this admission by FHCA.

The Award, May 1995

On 11 May 1995, the arbitrator handed down his award. He found in my favour on a number of instances, but these were based only on old fault reports; he didn’t address the ongoing problems which I had constantly advised him of and which he was obliged by the terms of Austel’s COT Cases Report to address. The award seemed to presuppose that I no longer had any problems with my phone service and that all had been addressed and made up to standard. How he could have come to this conclusion is incomprehensible to me.

The award gave me little over ten per cent of my claim. After I had taken into account all the expenses I accumulated just to bring the phone problems to the attention of Austel and the Senate and submitting my claim to the arbitrator, I was left with about four per cent.

It was not the case that my claim was inflated. Another accountant, Barry O’Sullivan from Freemans, once treasurer of the Liberal National Party LNP in Queensland and now a senator, valued my claim at an almost identical amount.

I am not allowed to speak of the amount of the award, but there are things I can mention. In his award, the arbitrator said he ‘had to take into account the decrease in tourism’ in my area as one of the factors possibly contributing to lost business at the camp. This was outrageous; he was trying to explain my business losses in terms of a decrease in tourism, when all the objective evidence was pointing to an increase in tourism in my area.

Even the FHCA Report recorded an increase in numbers of tourists visiting the Portland region (from 1,396,000 in 1991/92 to 1,565,000 in 1993/94). This increase (which I referred to in my claim documents) was supported by figures supplied by the Department of Conservation and the Environment and by the Victorian Tourism Domestic Monitor. So on what conceivable grounds had the arbitrator decided there had been a decrease in tourism in the area?

Speaking of the FHCA Report, the losses as calculated were taken on board. The arbitrator made his award based on those faulty calculations.

The arbitrator appears to have based his award on the assumption that Telstra’s defence claims were undisputed fact. He says, under the heading ‘Faults Caused By Claimant’:

(c)     Telstra nevertheless maintains that most reported faults were attributable to mis-operation by the claimant or by his callers or to normal wear and tear on the equipment they were using.

(d)     In this regard I have noted for example, the Statutory Declaration by ——, a senior technical officer (grade 1) who concluded that specific fault allegations involving the claimant’s answering machine, cordless phone, and facsimile machine could only be attributable to operator error. I have also noted a statement by ——, senior Telstra technician officer grade 2, to the effect that reported facsimile machine faults were attributable to customer error.(re: government held documents)

My claim documents clearly indicated that the faults which plagued my business right through my arbitration (1994–95) and for years afterwards were NOT due to operator error. The arbitrator was treating my assertions and Telstra’s assertions completely differently. Of course, the arbitrator could not know when one of us was not telling the truth, and he could only deal with the material placed before him; but he should not have assumed, without investigation, that it was I who was the unreliable party. I find this all the more reprehensible given that I was so often forced to complain of Telstra’s deceptive or underhanded behaviour.

I knew Telstra was lying. Many of the documents cited in this book are evidence of the fact that Telstra knowingly lied in its defence of my arbitration, but at the time I needed it, I did not have the hard evidence. And even when the evidence started coming to hand, it was not accepted — not by the arbitrator, nor by the TIO, and sometimes not even by Austel. They didn’t want to know. But it was their job to want to know.

Just for the record, Telstra’s own archival material contradicts the assertions of the technical officer made under Statutory Declaration in point (d) above. The following internal fault record, in relation to my fax line (the name of the technician has been blanked due to an FOI stipulation) notes:

… rang to advise me had found several problems with the RCM system Mr Smith was previously connected to. The major problem was caused by faulty termination of resistors on the bearer block protection another problem was caused by non modified channel cards, a full report will be submitted by Len in the next week.

Both the engineer the memo was addressed to, and the National Facsimile Support Centre, experienced fax problems when attempting to send faxes to my business. As far as I can tell, the technical officer committed an act of perjury in a legal arbitration process.

Whether the TIO believed this perjured information or not is irrelevant. As administrator to my arbitration he had a duty of care to give equal attention to my claims and concerns, and this I believe he did not do. While I mainly did not have evidence to hand in the course of my arbitration, once it did come to hand (months or years afterwards through delayed FOI documents), I brought it to the attention of the TIO and urged him to investigate. He therefore has no excuse for not being aware of the unlawful way in which this procedure was conducted, and should have convened his own investigations into the matters raised.

I felt completely shattered, but I had to keep going, I had customers to deal with. Six days later, however, nature took over. In front of a group of campers, some sixty children and staff, I collapsed. An ambulance delivered me to hospital and, at first, it was suspected that I had suffered a heart attack. Five days in hospital followed and the final diagnosis was stress.

On my first day home I received a call from the FHCA project manager. He wanted me to know that he was aware things hadn’t turned out quite as I had hoped. He believed I now had to put it all behind me, get on with my life and show ‘them’ what I could do.

I am still wondering who ‘them’ was. And why, really, he had rung. By this point, my appeal time had elapsed. Had he heard about my collapse and had an attack of conscience? During this conversation, he also informed me that the executive manager of my case with was from Canada would also going to ring me; and so he did.

The Canadian technical consultant manager said something like: ‘I was sorry to hear you had been ill and I hope you get better soon. This has been the worst process I have ever been a party to. This sort of situation would never have happened in North America.’

I was so stunned at this statement that I later forwarded a signed Statutory Declaration of my memory of it to various government ministers. I wrote to DMR in Canada for clarification but received no response. Tantalising possibilities that went nowhere. I was clutching at straws. After so many years and such a high cost, it was hard to let go in the face of such a disappointing and unjust result.

We draw the reader’s attention to the 12 May 1995 letter from the arbitrator to Warwick Smith (who was also the first Australian Telecommunication Industry Ombudsman (TIO). This crucial concealed arbitration letter states:

as far as I could observe, both Telecom and Smith co-operated in the Smith arbitration...”

 ...the time frames set in the original Arbitration Agreement were, with the benefit of hindsight, optimistic;

in particular; we did not allow sufficient time in the Arbitration Agreement for inevitable delays associated with the production of documents, obtaining further particulars and the preparation of technical reports…

In summary, it is my view that if the process is to remain credible, it is necessary to contemplate a time frame for completion which is longer than presently contained in the Arbitration Agreement (File No 55-A)

Whoever had access to Telstra’s network, and therefore the TIO’s office service lines, knew – during the designated appeal time of my arbitration – that my arbitration was conducted using a set of rules (arbitration agreement) that the arbitrator declared not credible. There are three fax identification lines across the top of the second page of this 12 May 1995 letter:

1. The third line down from the top of the page (i.e. the bottom line) shows that the document was first faxed from the arbitrator’s office, on 12-5-95, at 2:41 pm to the Melbourne office of the TIO – 61 3 277 8797;
2. The middle line indicates that it was faxed on the same day, one hour later, at 15:40, from the TIO’s fax number, followed by the words “TIO LTD”.
3. The top line, however, begins with the words “Fax from” followed by the correct fax number for the TIO’s office (visible

Consider the order of the timestamps. The top line is the second sending of the document at 14:50, nine minutes after the fax from the arbitrator’s office; therefore, between the TIO’s office receiving the first fax, which was sent at 2.41 pm (14:41), and sending it on at 15:40, to his home, the fax was also re-sent at 14:50. In other words, the document sent nine minutes after the letter reached the TIO office was intercepted.

The fax imprint across the top of this letter is the same as the fax imprint described in the Scandrett & Associates report (see File No/12 and File No/13), which states:

We canvassed examples, which we are advised are a representative group, of this phenomena .

They show that

• the header strip of various faxes is being altered
• the header strip of various faxes was changed or semi overwritten.
• In all cases the replacement header type is the same.
• The sending parties all have a common interest and that is COT.
• Some faxes have originated from organisations such as the Commonwealth Ombudsman office.
• The modified type face of the header could not have been generated by the large number of machines canvassed, making it foreign to any of the sending services.

As we have shown elsewhere in our story this one of the original two technical consultants attesting to the validity of this Scandrett & Associates fax interception report emailed me on 17 December 2014, stating:

I still stand by my statutory declaration that I was able to identify that the incoming faxes provided to me for review had at some stage been received by a secondary fax machine and then retransmitted, this was done by identifying the dual time stamps on the faxes provided.” (File No/14)

Was this letter 12 May 1995 File No 55-A actually faxed to my office by the ombudsman to assist me in any pending appeal process, and if not, why was such an important letter deliberately kept from me during my designated appeal period)? 

The fax imprint across the top of this letter (Open Letter File No 55-A) is the same as the fax imprint described in the Scandrett & Associates report (see Open Letter File No/12, and File No/13), confirming faxes were intercepted during the COT arbitrations. The question the Telecommunication Industry Ombudsman and the Federal Attorney-General has still not answered is:

Was this letter actually faxed to my office by the ombudsman to assist me in any pending appeal process, and if not, why was such an important letter deliberately kept from me during my designated appeal period? 

If I had received a copy of this letter declaring the agreement used in my arbitration process was not credible, then, of course, I would have appealed the arbitrator’s award. After all, how could an appeal judge argue against the arbitrator’s own findings that the agreement was not credible, even though he used it anyway?

On 23 May 1995 (Two weeks after the conclusion of my arbitration) another 700 or so FOI discovery documents arrived. Why now? What was Telstra playing at? I could have used the material twelve months ago to support my claim. Ten days ago, I could have used them to support an appeal against the award. Now, the only way I could use them was if I took the matter to the Supreme Court of Victoria, an alternative. Once the TIO and arbitrator heard that this was exactly what I was intending to do they set about destroying my credibility see Prologue/Chapter Two to Four.

 

Playing politics

David Hawker, my local federal MP, had supported me, and the issue of rural telecommunication services, since 1992. In September 1995, before the Liberal government came into power, he arranged for some of the COT members to meet with the then Shadow Minister for Communications, Senator Richard Alston, in his office in Canberra.

Senator Alston had taken an interest in the COT cases from very early on, and in this meeting he was supportive of my claims regarding the unethical conduct by various parties associated with the administration of my arbitration, including my claims that Telstra had been listening in to my private phone calls as well as intercepting my faxes during the arbitration. Senator Alston had been under the same illusions as the COT four that the arbitration would be a non-legalistic and fast-tracked process. He expressed his concern that FOI discovery documents showed that Telstra knowingly used flawed and fabricated test results to support their defence of my claim, and that they had allowed the 10 November 1993 flawed BCI Addendum Report on Cape Bridgewater (Telstra's Falsified BCI Report) to remain in the public domain.

After the Coalition victory in 1996 Senator Alston became the Hon. Senator Richard Alston, Minister for Communications and the Arts. At this point his office asked me to supply them with a full report on my claims and the allegations I had made against Telstra over the years, along with any allegations I had about the conduct of the arbitration. I set about producing the report they needed: just to produce a chronological listing of events took 82 pages which I bound into a book, supported with a separate volume of attachments indexed to the main document. A copy of this report was sent to Senator Alston and another to the Commonwealth Ombudsman’s office.

Regrettably, since Senator Alston was appointed to a position which gave him the power to instigate a full inquiry into the many issues raised by the COT cases, nothing more happened in this matter beyond a letter of acknowledgement in September 1996.

The Exicom T200 and beer-in-the-phone reprise

Another FOI document received too late proved that Telstra was well aware of the moisture problems associated with the Exicom T200 that resulted in billing faults exactly such as I had experienced, faults that my arbitrator and Telstra refused to address in my arbitration. This same document, an internal memo, suggests that Telstra re-deployed phones they knew were faulty and returned them back into service to other unsuspecting customers, because they would ‘still have to be deployed in areas of lower moisture risk.’ The memo is not dated, but other information in it puts it around 1993–94.

Given that these phones were known to malfunction in moisture-prone areas, I cannot fathom why Telstra thought they would work in a coastal area such as Cape Bridgewater. Or why, when I began to complain of the billing problems they didn’t simply say, ‘Oh, sorry Mr Smith, this is not the right phone for you.’ What a lot of trouble that would have saved.

I wonder how many of these faulty T200 phones are still being used by unsuspecting Telstra customers in places of high moisture content, for instance, fish and chip shops, bakeries, industrial kitchens, or heated swimming pools etc. — and how many of these customers are incorrectly charged for calls they did not receive, as I was for so long.

I also wonder about the legality of redeploying products known to be faulty — though it seems the Telstra Corporation is exempt from the Trade Practices rules covering other corporations and businesses in Australia.

After so many let downs, imagine my happiness when, in November 1995, six months after the arbitrator handed down his award, I received in another bundle of FOI documents, the laboratory reports I mentioned in Chapter Seven, in which Telstra carried out tests on my T200 fax/phone at their laboratory to see how long beer would stay wet inside the phone casing. To read that Telstra laboratory staff themselves had proved that beer could not have stayed wet and sticky for 14 days (the time between the phone leaving my premises and it arriving at the laboratory) was incredibly exciting.

It was already evening time, but in the heat of the moment, I rang the arbitrator’s home number. His wife answered and told me he was overseas and not due home for some days. Caught on the back foot, and thinking it likely the arbitrator had discussed at least some aspects of my arbitration with his wife, I imagined that if she knew who was calling, she might be afraid I was going to be troublesome. On the spur of the moment I gave her another name, one I knew the arbitrator was familiar with — that of the FHCA project manager. According to my telephone account, this call was made at 8.02 pm on 28 November 1995 and it lasted 28 seconds.

Later, I told the TIO about my exciting find, and how I had I had tried to contact the arbitrator to pass on the news, explaining also why I gave the arbitrator's wie the FHCA project manager’s name instead of my own, so as not to alarm her. I asked him what he would do with this proof that Telstra had fabricated the beer in the phone story. The TIO responded flatly that my arbitration had run its course and he did not intend to involve his office in any further investigation. He said I should go to the Supreme Court of Victoria if I wanted to take it further.

The Institute of Arbitrators

Since the TIO would not act, it was time to find some other way of addressing the unethical conduct of the arbitrator. In 15 January 1996 I addressed my complaints to Laurie James, President of the Institute of Arbitrators Australia.

I had a number of complaints regarding the fact that the arbitrator had not operated within the ambit of the Arbitration Act. I provided evidence that the TIO and Telstra had also met in private, without a representative of the COT group, during the planning stages of our arbitration. The arbitrator and his resource unit also met with Telstra in private, before we signed for the arbitration. These meetings broke the rules of arbitration, and we will never know what was discussed in them. We can assume, however, that it was not to the advantage of COT members.

 

Also, when the TIO and his legal counsel began to pressure the COT four into abandoning the commercial process (the FTSP) and signing for arbitration (the FTAP), no-one informed us that the appointed arbitrator was not graded by the Institute of Arbitrators. I learned this from Mr Nosworthy, President of IAMA in 2001, who told me Dr Hughes was not a graded arbitrator at the time of my arbitration. In fact, while he was engaged with the COT cases, Dr Hughes sat for, but failed, his grading examination. .

Technically, he was not qualified to handle any arbitration, let alone one that was so complex and far-reaching as ours. This information was relayed to Senator Alston and the TIO, but to no effect, and no-one has yet satisfied me as to why an unqualified arbitrator was chosen to oversee such a vast process and why he was permitted to continue, after failing his examination.

Mr James worked quickly, for on 23 January 1996 Dr Hughes wrote to John Pinnock (the new TIO) under the heading ‘Institute of Arbitrators – Complaint by Alan Smith’ saying:

I enclose copy letters dated 18 and 19 January 1996 from the Institute of Arbitrators. I would like to discuss a number of matters which arise from these letters, including

1. the cost of responding to the allegations
2. the implications to the arbitration process if I make a full and frank disclosure of the facts to Mr James.

I would give a lot to see what that ‘full and frank disclosure’ might consist of. I couldn’t ask at the time, however, as I did not get a copy of this until 2001. What I did get next was something shocking and upsetting.

In February 1996 I received a letter from the President of the Institute of Arbitrators, Mr Laurie James, with a copy attached of a letter he had received from the TIO. The TIO had written to Mr James to say that my complaints about the arbitrator were ill-founded. The TIO backed up this assertion by relating a very different version of the events I have just described. In his letter, the TIO stated falsely that I had rung the arbitrator’s home at 2 o’clock in the morning. He also told Mr James that I had given a false name.

With its implications that a man who rang anyone at the socially unacceptable time of 2 am was possibly unstable, or a threat to the peace, this seemed like a gratuitous attempt to blacken my name. Why else would the TIO take an innocent incident and try to turn it into something sordid? The TIO is supposed to be unbiased. He must have known that his correspondence would bring my character into question. And if he was prepared to do this in my arbitration, what about the arbitrations still going on for other members of the COT group. Who was he actually supporting — the Australian public or the telecommunications carriers?

The TIO had also forwarded a copy of this letter to the arbitrator, who would have asked his wife for her version of the incident. I believe that, all things being equal, his wife would confirm that I rang at 8 pm and that I was perfectly polite. But who knows, perhaps the arbitrator and the TIO cooked up the 2 am version between them.

Mr James was not inclined to follow through with my complaint, so the TIO had achieved his aim.

So that was the consequence when I thought I had found dynamite with the confirmation that someone within Telstra had tampered with my Exicom T200 phone and that Telstra staff had perjured themselves in Statutory Declarations defending their beer-in-the-phone story.  

I had thought that anyone interested in justice would feel no option but to review my case. Instead, the person whose position it was to address this, chose instead to try to discredit me. And it was not the only attempt. I am not sure who stooped lower, the TIO or the arbitrator, as the concluding part of this story illustrates.

It was not until 2002, six years after the event, that I received from the TIO, through FOI, a copy of a letter dated 13 February 1996, written by the Arbitration Project Manager to TIO, which sheds some light upon the fate of my complaint to the Institute of Arbitrators. This is the story of the second serious attempt to discredit me (see absentjustice.com and the Abuse of power & Perversion of the course segment/links.

In the letter, this Project Manager (the one who I was forced to exonerate from all liability while assisting the arbitrator during my arbitration) acknowledges that the FHCA financial report was incomplete (‘… the final report did not cover all material and working notes’), (AS 179) .but he then goes on to make an astonishing assertion that the Victoria Police Brighton CIB was about to question me in relation to criminal damages to his property.

In fact, the Victoria Police Brighton CIB never considered me a suspect in relation to any crime, and letters held by the TIO’s office confirm this. Nonetheless, the Project Managers letter to the TIO implied that I was about to be charged for criminal damage. What is more, those false allegations were then sent on to a third party, the arbitrator, who then attached a copy of the letter in his response (AS157) . to Mr Laurie James, President of the Institute of Arbitrators Australia, who was investigating my complaints.

At the very least this constitutes massive defamation of character. And it very likely prejudiced Mr James against my case. Of course, I had no idea of the existence of this letter at the time. Over the years since I became aware of this defamation I have made continuous complaints to the TIO and relevant government ministers. None of this has resulted in any apology or retraction, but that should not surprise the reader.

Senate Estimates

This has been a highly legalistic arbitration: by June 1997, Telstra had paid more than 18 million dollars to defend itself against the COT claimants. What chance did we have when we had to rely on Telstra documents to support our claims and the person in charge of distributing those documents also sat on the council of the TIO?

During question time at a Senate meeting on 24 June 1997, Telstra was questioned regarding its tardy supply of FOI documents to the COTs. By this time the Commonwealth Ombudsman had completed her findings relating to Telstra’s administration of the supply of discovery documents to Ann Garms, Graham Schorer and myself. She found against Telstra. This finding resulted in a Senate review of the cases of Graham and Ann, but not of my case. It has never been explained why I was left out, though it has been suggested that my ongoing phone problems represented a can of worms no-one wanted to open in public.

In this same Senate meeting, the Shadow Minister for Communications, Senator Chris Schacht, raised the issue of the $18 million that Telstra had paid out in legal fees during the COT arbitrations in contrast to the $1.74 million that the COT claimants had collectively received to that point:

The thing that really is annoying is that the lawyers got millions, you paid them millions to go through all of this process and the claimants got $1.7 million — we know who won this case.

… you went through a process of hanging people out to dry for a long time.

Senator Carr, Labor, then said to Telstra’s Group General Manager:

I have a document here, headed up ‘TELSTRA SECRET’, which suggests that some time ago you were being advised that Mr Smith was likely to secure a substantial payment through a legal arbitration process. Is it not the case that probably it would have been in your commercial interest to have settled long before you did?

The Telstra representative who was deflecting these questions by the various Senators, had been in charge of the COT arbitrations and responsible for supplying us our FOI discovery documents, was also a member of the counsel to the TIO’s office. He replied to Senator Carr:

We could not reach a final settlement with Mr Smith before the matter went to arbitration. It was then taken over by Austel in its investigation into what became the COT Report.

A neat side-step. And the issue was left basically unanswered.

The question of whether Telstra’s withholding of FOI documents was a deliberate ploy occupied a Senate Estimates Committee from September 1997 to January 1999. By that time there were 21 COT cases, and five of these, including Ann Garms and Graham Schorer, were chosen for investigation. If it was found proved with these five that Telstra had acted deliberately such that their arbitrations had been compromised, then it would be assumed true for the remaining COT cases.

On 26 September the TIO was called before the Senate Estimates Committee to answer questions about the conduct of the arbitrations. He made an extraordinary statement:

 … the arbitrator had no control over that process, because it was a process conducted entirely outside the ambit of the arbitration procedures.

This was an incredible reversal from the TIO’s office, and one that should have given me joy. Under oath, he was finally agreeing with what I had been saying for so long to the Institute of Arbitrators Australia. 

The Senate investigation proceeded over the next 20 months, and delivered a decision that Telstra had indeed deliberately withheld FOI documents to the detriment of the COT claimants. But while this was proved for the five test cases, the decision to pass on the benefits to the remaining COT cases was reversed. The five received some 150,000 FOI documents between them (which now supported at least some of their original claims) and to top this off they also won a total award of more than fifteen million dollars between them from this Senate Inquiry, and the other sixteen got nothing, not even their previously withheld FOI documents which would have assisted all of them in their previous arbitrations/mediations but would have at this time, assisted them in any appeal they might decide to make (see An injustice to the remaining 16 Australian citizens /Chapter Two)

On 23 March 1999, when this Senate investigation was over, the Chairman of the Committee, Senator Alan Eggleston, made a press release:

A Senate working party delivered a damning report into the COT dispute. The report focussed on the difficulties encountered by COT 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 have defied the Senate working party. Their conduct is to act as a law unto themselves.’

In fact the TIO Board and Council had hidden two important issues from the Senate Estimates Committee: (1) The Board and Council knew that the TIO-appointed Resource Unit also stopped the COT claimants from receiving relevant documents during the arbitration process and (2) The TIO and the defendants (Telstra) let this happen by allowing the Resource Unit to decide which documents they thought were relevant for the arbitrator to view and which they thought should be withheld from the process.

So many people were concerned about what had happened to the remaining sixteen COT cases, at least one Senator showed support. Two Victorian Police officers had acquired in camera Hansard records for 9 July 1998, where it was noted that to award only those five cases under investigation would be an injustice for the remaining sixteen. They gave me a copy of the Hansard pages, which was frustrating as I was unable by law to use the information in them to pursue justice. Indeed, when I tried to use these privileged documents to support my continued request for access to FOI documents, I was threatened twice by Senator Eggleston that if I disclosed the content of these privileged reports I could be held in contempt of the Senate – a two year jail sentence.

Questions and more questions

There are still many questions I am waiting to be answered by Telstra. The Commonwealth Ombudsman’s office has been attempting to extract replies from Telstra on my behalf, with some success, particularly on the more trivial matters, but more often with no success at all. For a typical instance, early in the arbitration process I had asked, under FOI, to see documents explaining just how the rules of the arbitration had been arrived at, particularly the first draft of these rules. When Ms Philippa Smith, the Ombudsman, relayed this request to Telstra she received the following reply:

'Telstra has been unable to locate (name deleted) further general files which include copies of the correspondence received from Hunt and Hunt in relation to the development of the Fast Track Arbitration Process and I am told that these files, along with other documents, were disposed of by his personal assistant sometime after he left Telstra’s employ'.

It seems the more mundane letters can be located but important evidence relating to my arbitration can be lost forever. This missing evidence could well have proved that the so-called ‘independent’ rules which the members of COT signed, were not independent at all.

Many documents mysteriously disappeared and many organisations disassociated themselves from my arbitration over the years. When, in late 1996, I raised the question of the role of the previous President of the Institute of Arbitrators in the drafting of the rules of my arbitration, I was advised by the current President of the Institute that:

The Institute of Arbitrators Australia has absolutely no connection with the arbitration between Telstra and yourself.

Yet the TIO and my arbitrator stated in writing that the President of the Institute (later a County Court judge) in 1994 independently drafted the rules of the arbitration. Who do we believe?

In my case alone, when Telstra listed the documents they received as part of my claim their list is 43 documents short of the number I forwarded to the arbitrator. Where are these documents?

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.

The sad fate of Darren Lewis

By February 2007, the situation at the Cape Bridgewater Holiday Camp had deteriorated to the extent that Mr Lewis was feeling suicidal. Ms Howard of the Portland Psychiatric Services visited me to ask if Telstra had ridiculed my telephone problems as Darren was saying they were now doing to him. I confirmed that they had, and provided her with evidence of such treatment and worse.

About six weeks after Ms Howard’s visit, Darren came to tell me he was considering selling up, but was worried about what to tell prospective buyers about the telephone problems. He accepted that when I had sold the business to him I had firmly believed that Telstra would fix the problems once I was no longer involved, and he agreed that he had also expected this to happen. But he felt now that he could not sell the business without divulging the continuing nature of those problems.

The Portland Coastal Real Estate Agency recorded two offers for the Camp, of $1,300,000 in April 2007 and $1,200,000 in June, before Darren withdrew the property from the market. Technical guru Brian Hodge, who had previously worked for Telstra for 29 years, inspected the place and provided Darren with a report in July 2007, which noted that the faults were actually getting worse.

Towards the end of 2008 Darren was before the Federal Court because of overdue taxes and was filing paperwork for bankruptcy. In August 2009 he walked off the property as the result of a bankruptcy court order. The camp was sold for less than $600,000.

I believe Darren first became concerned about the possibility that his phone conversations also may have been illegally listened to when he discovered my accreditation file in the camp office, where I had inadvertently left it when handing the camp over to Darren. This file included Australian Federal Police/Telstra intercept documents, including one dated 14 April 1994 from Telstra to the AFP, notifying them that Telstra had installed equipment in the Portland exchange so that a bell would ring whenever I received an incoming telephone call, enabling the person on duty to listen in on those conversations. After reading the letters I supplied, letters Ms Howard drew up a Risk Management Plan for Darren to use (se AS 629 file AS-CAV 589 to 647), including a warning that, if Darren felt suicidal again, he should not only share those thoughts with his wife but also with me as well as with Portland Health.

And now, here was Telstra in 2002/2003 – nine years after my arbitration process – still having not fixed my original telephone problems and making sure that the Lewis’ ongoing telephone problems were also not transparently investigated because to do so would prove just how delusive and undemocratic my arbitration process was. The Lewises’ lives, like mine and my partner’s, were insignificant as long as Telstra’s network deception remained protected … at all costs.

FOI folio I00271 and I00265

I have used the two following Telstra FOI documents, folio I00271 and I00265 (see Our Saga File N0 3-A to 3-C) as a testament that the TIO knew my ongoing billing faults continued for years after my arbitration; I have since provided, the government these two documents along with many more showing the TIO misled and deceived government ministers, over many years, concerning the validity of my ongoing telephone faults that continued for years after my arbitration had been finalised.

Telstra FOI document folio I00271 (File N0 3-A), dated 24 October 2002 has been used here to support that the TIO was fully aware of the ongoing telephone and faxing problems being experienced by Darren and Jenny Lewis after they purchased my business. This document folio I00271 states:

The TIO have now raised a level 1 complaint on behalf of Mr & Mrs Lewis. The TIO have specifically mentioned in their correspondence that the TIO have previously investigated a number of complaints raised by the previous account holder for this service in which similar issues were raised.

The blanking out of my name does not hide the fact that I was the previous account holder of that telephone service.

The second Telstra FOI folio, I00265 (File N0 3-B), dated 24 October 2002, states:

David Hawker MP has written to Senator Alston on 10 October and included a 3 October letter from Darren and Jenny Lewis. This 3 October letter has been cc'd to the TIO but doesn't seem to have made its way into Telstra yet. Will follow in Cicero and respond accordingly. Hopefully, the TIO will become involved and that will take the Minister and Member out of the equation.

I am highlighting FOI folio I00265 in this part of our story because it is a good example of how valid claims can so easily be hidden from any Minister in government if the TIO becomes involved. It is clear from the above statement that these ongoing faults at Darren and Jenny Lewis’ business would remain hidden if the then Minister (which was then-Senator Richard Alston) and the Member (which was The Hon David Hawker were kept “out of the equation.”

Chapter 12 Summing up the years

There is something in me that won’t let me walk away, that won’t accept defeat. For several years after my ‘award’ was handed down, I continued to make my case against the issues in my arbitration that were never addressed by the arbitrator; in every case to no avail.

Over the same years, the COT members have sent updated information supporting our various claims to all the appropriate government agencies, officials, politicians and senators. I have provided documented proof, again and again, that my arbitration was not carried out according to the principles of natural justice. In 2014, I briefed the Hon. Tony Abbott, Prime Minister, the Hon. Malcolm Turnbull, Minister for Communications.

I have twice gone to the Administrative Appeals Tribunal seeking documents I had been promised for my arbitration, with limited success.

Three times I have complained to the Institute of Arbitrators. The first I have already described in Chapter 9. Then in 2001 the Institute agreed to investigate fresh evidence. This was the time Mr Nosworthy informed me the arbitrator was not qualified in the course of my arbitration. Despite this, the Institute found there was no case to answer. Finally in July 2009, the Institute of Arbitrators Mediators Australia (IAMA), again agreed to investigate further fresh evidence. Among other items of evidence I submitted the words of the TIO at the Senate Estimates Committee, that the ‘process conducted entirely outside the ambit of the arbitration procedure.’

In October 2009, I sent the IAMA further evidence from forensic technical consultants attesting that someone with access to Telstra’s network had been screening and intercepting claim documents pertaining to at least four separate COT arbitrations. This material showed that for at least seven years after my arbitration was concluded someone was screening and intercepting faxed documents leaving my residence and my business before redirecting that information on to its intended destination. The arbitrator had officially agreed to address this issue of interception, but he did not. Under the terms of arbitration, he was legally bound to provide findings on all materials, but he made no reference to interception at all. This was clearly a matter for the IAMA. But their response when I proffered the supporting documentation was less than enthusiastic:

Presently, IAMA does not require this further documentation to be sent. However, the investigating persons will be notified of these documents and may request them at a later date …

No one has requested them.

I have had to ask myself, is it only me who sees the enormity of this interception of confidential, arbitration-related documents? Is it only me who is bothered about how many other Australian arbitration processes may be subject to this type of hacking, secretly and illegally screening documents before they arrive at their intended destination?

But I am not alone. One of the two forensic technical consultants attesting to the validity of their findings in that report, wrote to me on 17 December 2014:

I still stand by my statutory declaration that I was able to identify that the incoming faxes provided to me for review had at some stage been received by a secondary fax machine and then retransmitted, this was done by identifying the dual time stamps on the faxes.

The last I heard from the IAMA Ethics and Professional Affairs Committee was on 11 November 2013. Despite their agreement to investigate, they refused to hand down any findings. I have asked them on many occasions and their refusal is implacable.

I went to the TIO to complain, but his response was brusque: ‘Your arbitration is over.’

One bright note did follow from the AFP investigation into the COT cases. Even though I was unable to benefit from their work, when the AFP reported to the Minister that COT claimants’ phone conversations had been intercepted, this led to amendments in the Telecommunications Interception Act in 1995, aimed at protecting users’ privacy.

So, it is true, my arbitration is over. Even so, I am still hopeful for justice from a system that promised to give it to us. Warrick Smith, when he was the TIO, exercised no duty of care for COT members, but appeared always to act in favour of Telstra, from the moment he forced the four original COT claimants to abandon the commercial assessment process for a costly and legalistic arbitration procedure presided over by an unqualified arbitrator.

We COT members feel we have been let down by every government office we have approached for help in the face of a stonewalling Telstra and an uncooperative TIO. It is as if we are too small fry. Our problems don’t matter. We may receive replies from the relevant minister or department, but there is no follow up, no teeth in them. Only the Commonwealth Ombudsman has consistently performed its role in accordance with the principles of what is lawful and just. Ministers when in Opposition are helpful, but once they are in government, we become non grata again.

When I look back over the years since my ‘award’ was handed down I recall many moments when I contemplated giving up the fight. But how could I when the ‘award’ left out, ignored or dismissed so much? When the terms of the ‘award’ were based on fabrications and lies as blatant and easily uncovered as saying tourism numbers in my region had dropped over the period of my claim, when all the statistics showed an increase. When the chairman of Austel promised us consequential losses would be included in any awards made, but this did not happen? How could I after all the financial loss involved in preparing my case, and the business I lost, so that I was forced to re-mortgage three times just to stay in the fight to bring these matters to the attention of the Australian public and the communications minister?

If Telstra had addressed the issues of lost faxes and eavesdropping, I would probably have accepted the award — indeed, if the arbitrator had addressed the issue of lost faxes and eavesdropping, I would probably have accepted, albeit reluctantly. If the arbitrator had addressed the incorrect charging I would have accepted. And if the arbitrator had raised the issue of Telstra using falsified and impracticable documents as part of their defence I would not have questioned his integrity. If he had been appropriately qualified, I would have had more grounds for confidence in him. As it is, on so many grounds outlined in this book, the arbitrator was far from impartial and therefore not an independent adjudicator in my arbitration. But on all of these issues my claims were effectively silenced — by being ignored.

 

Summary

On 20 September 1995, four months after the arbitrator prematurely brought down his findings on my matters, and fully aware I was denied all necessary documents to mount my case against Telstra, an emotional Senator Ron Boswell discussed the injustices the four original COT claimants (i.e., Ann Garms, Maureen Gillan, Graham Schorer and me) experienced prior and during our arbitrations. He said:

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 , 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.

On 27 January 1999, more than four years after Telstra committed these offences, I received a letter from Senator Kim Carr advising:

I continue to maintain a strong interest in your case along with those of your fellow ‘Casualties of Telstra’. The appalling manner in which you have been treated by Telstra is in itself reason to pursue the issues, but also confirms my strongly 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

Senator Kim Carr again criticised the handling of the COT arbitrations on 11 March 1999 as the following Hansard link shows. Addressing the government’s lack of power, Senator Carr stated:

What I do make a comment on is the question of civil liberties and the rights of citizens to approach this parliament and seek redress for their grievances when corporate power, particularly in a publicly owned corporation, has been abused. And there can be no question that that is what is at the heart of this issue.

And addressing Telstra’s conduct, he stated:

But we also know, in the way in which telephone lines were tapped, in the way in which there have been various abuses of this parliament by Telstra—and misleading and deceptive conduct to this parliament itself, similar to the way they have treated citizens—that there has of course been quite a deliberate campaign within Telstra management to undermine attempts to resolve this question in a reasonable way. We have now seen $24 million of moneys being used to crush these people. It has gone on long enough, and simply we cannot allow it to continue. The attempt made last year, in terms of the annual report, when Telstra erroneously suggested that these matters—the CoT cases—had been settled demonstrates that this process of deceptive conduct has continued for far too long.(See http://parlinfo.aph.gov.au/parlInfo/chamberhansards1999-03-11)

The Senate Hansard of 11 March 1999 includes further quotes confirming just how scathingly critical a number of Senators were in relation to the way Telstra ran the COT arbitrations, and not the arbitrator Dr Hughes even going so far as to note that it was “a process subject to unilateral amendment by Telstra”. That the committee was able to state Telstra used their “unilateral” control of the arbitration process to avoid supplying the promised documents shows the arbitration process failed the COT cases.

Senator Schacht was possibly more vocal when he stated:

I rise to speak to this statement tabled today from the working party of the Senate Environment Communications, Information Technology and the Arts Legislation Committee—a committee I served on in the last parliament—that dealt with the bulk of this issue of the CoT cases. In my time in this parliament, I have never seen a more sorry episode involving a public instrumentality and the way it treated citizens in Australia. I agree with all the strong points made by my colleagues on both sides who have spoken before me on this debate. What was interesting about the Senate committee investigating this matter over the last couple of years was that it was absolutely tripartisan—whether you were Labor, Liberal or National Party, we all agreed that something was rotten inside Telstra in the way it handled the so-called CoT cases for so long. The outcome here today is sad. There is no victory for citizens who have been harshly dealt with by Telstra.”.http://parlinfo.aph.gov.au/parlInfochamberhansards1999-03-11)

Senator Mark Bishop's statement shown below also notes See Senate Evidence File No 56

Significant issues do arise. I think it is appropriate to refer to the final paragraphs of the committee report. In the second to last paragraph, the report of the committee tabled by Senator Eggleston says:

Estimates of Telstra's costs in relation to the CoTs issue since the claims were made exceed $20 million ($14.285 million to 1997 and rising). Most of the expenditure has been spent, not on settlement but on administrative and legal costs. It became quite clear early in the process that the claimants had in fact been disadvantaged by malfunctions in their telephone system. It is difficult to understand why Telstra appeared to prefer to deny that there was a problem and then prolonged the difficulties in establishing the extent of that problem.

The final sentence reads:

In the Committee's view, Telstra should now seek to reach a negotiated agreement with the interested parties.

If fault is to be allocated at this very early stage of the final lap, that fault lies at the door of Telstra. It really is appropriate for Telstra, a $100 billion corporation, to stop using its monopoly power, to stop retaining the services of dozens of highly paid solicitors and to come to the table and to seek to reach a negotiated agreement with these four or five persons. It is simply outrageous that Telstra, which is still a public corporation, can spend something in the order of $20 million - Senator Boswell - Some $24 million.

I am informed by Senator Boswell it is 24 million - defending a claim when the claim before it is somewhere between $2 million or $4 million. This is simply an outrageous proposition and a waste of public money (See aph.gov.au/parlInfo/search/displaychamberhansards1999-03-11

At a press conference on 26 July 2002, Senator Harris aimed questions at the chief of staff to the Hon Senator Richard Alston, Minister for Communications. He asked:

 “Through the following questions, the media event will address serious issues related to Telstra’s unlawful withholding of documents from claimants, during litigation.

Why didn’t the present government correctly address Telstra’s serious and unlawful conduct of withholding discovery and/or Freedom of Information (FOI) documents before the T2 float?

Why has the Federal government allowed five Australians (from a list of twenty-one) to be granted access to some of the Telstra discovery documents they needed to support their claims against Telstra, but denied the same rights to the other sixteen?

Why has the Federal Government ignored clear evidence that Telstra withheld many documents from a claimant during litigation?

Why has the Federal Government ignored evidence that, among those documents Telstra did supply, many were altered or delivered with sections illegally blanked out?” (See Senate Evidence File No 56 ).

In 2015, after putting a number of my documents up on my LinkedIn site, a number of offshore lawyers emailed me to express their shock and disbelief in relation to my situation.  One of them, a lawyer practising in the Egyptian Court in Cairo, said that he would be willing to provide his legal opinion regarding six separate areas where he believed the arbitration process had failed the first four COT claimants and so, with his permission, I then sent a copy of his two-page document to the Australian Federal Police, along with his name, although I decided not to publish his name on the website.  Since then he has notified me that I can now identify him in any manuscript I might prepare regarding the first four COT arbitrations, and I can also explain his reasons for believing that the arbitration process failed the COTs.

So, on one hand, we have two Australian Government investigations and one IAMA investigation that have all apparently ended, but not one of those three will hand down a finding.  On the other hand, an Egyptian legal advisor on LinkedIn clearly sees injustices that he is prepared to put his name to, if or when I publish my manuscript “Ring for Justice.”

The legal advice received from Alaa, my Egyptian lawyer LinkedIn contact concerning the unethical way in which he notes my arbitration was conducted has been provided to the Australian Federal Police as a testament at what Alaa see’s as an injustice.

Please note: the following exhibits (which we might have missed into the text of the chronology of events above) can be accessed by placing the cursor over the relevant number range in order to access that exhibit.

AS - CAV 1 to 47 - AS-CAV 48-A to 91 - AS-CAV 92 to 127 - AS-CAV 128 to 180 - AS-CAV 181 to 233 - AS-CAV 234 to 281 - AS-CAV 282 to 323 - AS-CAV 324-A to 420 - AS-CAV 421 to 469 - AS-CAV 470 to 486 - AS-CAV 488-A to 494-E AS-CAV 495 to 541 -AS-CAV 542 to 588 - AS-CAV 589 to 647 - AS-CAV 648 to 700 -  CAV Exhibits 701 to 756 AS-CAV 765-A to 789 - AS-CAV 790 to 818 - AS-CAV 819 to 843 - AS-CAV-923 to 946  AS-CAV 1150 to 1169 - AS-CAV 1069 to 1102 - AS-CAV 1103 to 1132 AS-CAV-1002 to 1019 - AS-CAV-996 to 1001 GS-CAV 1 to 88 - GS-CAV 89 to 154-A - GS-CAV 155 to 215 - GS-CAV 216 to 257  - GS-CAV 258 to 323 - GS-CAV 410-A to 447 - GS-CAV 448 to 458 - GS-CAV 459 to 489 - GS-CAV 490 to 521 - GS-CAV 522 to 580 - GS-CAV 581 to 609

The matters discussed on absentjustice.com are said in the public interest and therefore are made in accordance with the Victorian Defamation Act 2005 Defamation-division 1 Defamation and the general law see > www.legislation.vic.gov.au/Domino/Web-Note.

 

 

While in the midst of my arbitration case against the Telstra Corporation, I stumbled upon a freedom of information release by Telstra. The release disclosed that Telstra had documented and redacted my phone conversations with former Prime Minister of Australia Malcolm Fraser (Senate Evidence File No/53). During those phone conversations, I expressed my concerns that Australia was providing wheat to China in 1967 despite being aware that China was redirecting it to North Vietnam. I'm curious to know how the interception of my telephone conversations during the arbitration proceedings in 1993 and 1994 with Malcolm Fraser is related to my exposure to the government on 18 September 1967 when Australia was trading with the enemy.

What intrigues me is the reason behind documenting a seemingly harmless conversation about Australia's wheat selling to China while being aware that China was supplying wheat to North Vietnam during a conflict with Australia, New Zealand and the United States. I am confident there must be a significant motive behind this, and I am determined to uncover it.

It's difficult to fathom the extent of harm inflicted on the young Australian, New Zealand, and United States service members by North Vietnam soldiers who were fueled by the wheat supplied to them by their communist Chinese supporters. Sadly, many of these brave service people lost their lives or were left with permanent injuries.

1.     In September of 1967, I brought to the attention of the Australian government that a portion of the wheat allocated to the People's Republic of China on humanitarian grounds was being redirected to North Vietnam during the Vietnam War Chapter 7- Vietnam - Vietcong

2.    Who else in the Australian government was aware that Australian wheat intended for a starving communist China was being redirected to North Vietnam to feed the North Vietnamese soldiers before those soldiers marched into the jungles of North Vietnam to kill and maim Australian, New Zealand, and United States of America troops? Refer to Footnote 82 to 85 FOOD AND TRADE IN LATE MAOIST CHINA,1960-1978, prepared by Tianxiao Zhu, who even reports the name of our ship, the Hopepeak and how the seaman feared for our lives if we were forced to return to China with another cargo of Australian wheat. Australian wheat was being redeployed to North Vietnam during the period when Australia, New Zealand, and the United States of America fought the Vietnam Cong in the jungles of North Vietnam.   

3.   During the 1960s, the Australian Liberal-Country Party Government engaged in misleading conduct regarding trade with Communist China despite being cognizant of the fact that Australian merchant seamen had vehemently refused to transport Australian wheat to China. The grounds for such an objection were their apprehension that the wheat would be redirected to North Vietnam during the North Vietnam War between Australia, New Zealand, and the United States of America. The underlying inquiry is to ascertain the government's rationale for deliberately deceiving the general public and jeopardising the country's troops whose lives were being lost in the conflict in North Vietnam.  Murdered for Mao: The killings China 'forgot'

4.    Why didn't Australia's Trade Minister, John McEwen, correctly and honestly advise the people of Australia why the crew of the British ship Hopepeak had refused to take any more Australian wheat to China because they had witnessed its redeployment to North Vietnam during their first visit to China?  

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