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.

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.

A visit by the TIO the technical resource unit

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.

FIG 8

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, just as this copy of my account shows (Arbitrator File No/31)

Neither the Telstra official nor the Lanes representative was prepared to comment on this evidence, 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.

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