Chapter 9

Aftermath

 

Among the issues not addressed in my arbitration award was that of Telstra’s incorrect charging. Five months after my award came down, Austel visited Cape Bridgewater view the documents that had not been addressed by the arbitrator. These amounted to six bound volumes of evidence I had accumulated to support my case. The Austel people appeared to be quite stunned at the six volumes and commented that they had never seen so much evidence, presented in such detail. (In fact, over the years leading up to my arbitration, I had continually provided evidence to Austel of Telstra’s incorrect charging.) Finally, they left, taking the volumes with them.

Austel allowed Telstra to address the material in the absence of any mediator such as the arbitrator and I was given no opportunity to respond. I wasn’t even officially notified of Telstra’s response, I had to wait for an FOI document, which I received by chance in 2001. The information Telstra had provided to Austel in a letter in October 1995,¹ defending itself against my itemised problems, was full of false claims. Had I been given the chance to show the comparison with my data, I could have proved this. But I was not given the chance, and Telstra’s version was privileged over mine with no further investigation. What sort of a way was this to provide justice? I was denied my legal right of challenge. The faulty billings continued.

Meanwhile the daily running of the camp was almost beyond me. Cathy was handling the work almost entirely on her own. All the marketing and promotional expertise I had built up over the years was of no help: I had no reserves of energy to call on, and more importantly, perhaps, I no longer believed any good could come of it. I was in a state of despondency, stewing on my situation. How could this be happening to me in Australia in the 1990s? Wasn’t this supposed to be a democracy? It felt like something out of Kafka.

I decided I had to do something, so for a start, I requested the return of all my claim documents (as per the rules of the arbitration), and waited with growing anger for weeks before deciding to drive to Melbourne and collect them myself in August 1995. I don’t know why I expected to have my request met at this time, in truth, I was spoiling for a fight. And indeed, my documents were not ready, the arbitrator’s secretary, Caroline informed me, and the arbitrator was not available.

I was not polite. I demanded she get my documents at once and reminded her I had put in my request three months before. ‘I am not leaving this office without those documents,’ I shouted. ‘Call the police if you want to, I don’t care. You have my property and I want it back now.’ At last a young lad appeared wheeling a trolley loaded with boxes. He asked me to sort out which were my claim documents; I simply took the lot.

It was a revelation. Among the documents were some I’d never seen before, and they were very interesting, to say the least. By the rules of my arbitration, any information supplied by one party must be automatically circulated to the other party and to the TIO’s legal counsel. Among the material I took from the arbitrator’s office that day, however, was an envelope full of documents and loose papers, none of which had ever been forwarded to me.

A letter from Telstra to the arbitrator had been sent with three attachments, letters sent between Austel and Telstra, between October and December 1994. Telstra wrote:

You will note from the correspondence that Austel has requested Telstra to provide information relating to charging discrepancies reported by Mr Smith for short duration calls on his 008 service. These issues form part of the subject matter of Mr Smith’s claim under the Fast Track Arbitration Procedure.

The simplest way forward may be for Mr Smith and Telstra and yourself to all confirm in writing that this information can be provided to Austel if this meets with your approval.²

Now, if this was the way to go, why didn’t I receive some indication of this from the arbitrator? I received no correspondence from him at all on this matter.

In its letter of 1 December 1994, Austel had indicated that other Telstra customers in the Portland area had also complained about incorrect charging on their 008 services, and Austel raises this concern in their letter of 8 December:

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

In direct breach of the rules, the arbitrator did not forward these letters to me during the arbitration. And, as I have already told, the arbitrator made no finding in his award regarding the substantial evidence of incorrect charging in my claim documents.

In a letter of 11 November 1994 Telstra told the arbitrator and Austel that it would address these incorrect charging issues in their defence. That Telstra failed to do so, and that the arbitrator permitted this, I believe constitutes a conspiracy between the arbitrator and Telstra. Further incriminating documents in this cache I had unwittingly stumbled upon, supported the notion that there was a conspiracy afoot.

The DMR/Lanes report revisited

Among the documents inadvertently provided to me by the arbitrator’s office, I found another version of the DMR/Lanes technical report for my business. On the title page of the version I received back in April 1995, the second paragraph consists of one short sentence: ‘It is complete and final as it is.’ The second paragraph on the equivalent page of the arbitrator’s report has more to say: ‘There is, however, an addendum which we may find it necessary to add during the next few weeks on billing, i.e. possible discrepancies in Smith’s Telecom bills.’

Again, in the arbitrator’s copy (on page 3), the fourth and fifth paragraphs state:

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

Otherwise, the Technical Report on Cape Bridgewater is complete.

This information is missing from my version of the report. Did the arbitrator and DMR/Lanes think I would forget about the billing issues if they didn’t remind me? To discover that DMR/Lanes intended to address the billing issues but mysteriously omitted this from the final version of their report just sealed my conviction that I was the victim of a conspiracy in this arbitration.

And it was here, under the heading ‘Cape Bridgewater Documentation’, I found the astonishing statement I mentioned in an earlier chapter: ‘A comprehensive log of Mr Smith’s complaints does not appear to exist.’

Were they playing games with me? I certainly had provided one! At times my life felt like one huge comprehensive log of complaints. Austel had been stunned at my volumes of evidence. I had images of my supporting documents being tossed into some ‘too-hard basket’ and I was fed up with it. Secure in their government jobs, had they any idea what we COT claimants were going through, what this meant to us?

What is so disturbing about these additions to the two conflicting DMR & Lane 30 April 1995 reports is that all 23 technical finding in each report are identical. When these two identical reports are read in conjunction with the Lane 6 April 1995 report they are likewise the same. What this shows is that Lane not only produced 99.9% of the findings in all three reports they also conveniently failed to address my ongoing billing faults. What cannot be argued after viewing the two DMR & Lane 30 April 1995 reports is that at point 3 in both: it note:

About 200 fault reports were made over December 1992 to October 1994. Specific assessment of these reports other than covered above, has not been attempted. There are 23 faults shown in both reports that were investigated, none were faults registered In the arbitrators award (findings) he notes that my claim was over a 6 and half year period from April 1988 to December 1994. This shows that DMR & Lane assessed less than two years of a six and half year claim. To save arguing which faults which year was assessed and which was not, I again repeat as I have repeated on my webpage as well as in this book. Did Lane only assess less than a third of those faults registered because to have assessed ALL of my which I might add amounted to over 600 for the six and half years (which the government regulator agrees) was one of the worse of all of the COT Cases is because to have assessed this amount of faults Lane would have had to acknowledge the Ericsson equipment was fault ridden. It appears as thought it was best to purchase Lane and all of their computer files of all of the COT Cases complaints so that there is no record in existence of the real problems the government was soon to inherit once the National Broadband Network (NBN) went into play.

FOI avalanche

As if to rub my face in my defeat, months after the arbitrator had handed down his decision in my arbitration, I was still receiving hundreds, even thousands, of discovery documents. Some of them I had requested years ago, and would have been most useful in supporting my claim, but by this time, of course, they were of no use any more.

As these documents kept arriving I found it impossible to just shut the door on the saga and walk away. I became increasingly convinced that I had been the victim of a deliberate act of sabotage, and not only in relation to obvious things like the ‘beer in the phone’ episode. Why, I wondered, did the arbitrator not make any finding regarding all the lost faxes I had reported, both before and during the arbitration process, some of which involved valuable evidence that was somehow lost in Telstra’s network, en route to the arbitrator’s office for assessment by the resource unit and Telstra’s defence unit.

How had the arbitrator not seen through Telstra’s attempt to make me appear as a drunk by saying that my fax problems were caused by alcohol. How was it not obvious to the arbitrator that Telstra wanted the faulty line to be hidden from the resource unit in case they stumbled on the truth that it was Telstra’s lines that were causing the problems?

In 2001, six years after the fact, I received from the TIO’s office a letter Dr Hughes wrote to Warwick Smith on 12 May 1995.³ In this letter, the arbitrator observes that the arbitration agreement was not a ‘credible’ process to have used in my arbitration. If Warwick Smith had passed this letter on to me at the time I could have challenged the arbitrator’s findings. How could an appeal judge rule against the arbitrator’s own advice to the administrator that the rules of the agreement used in the process ‘had not allowed sufficient time for delays associated with the production of documents, obtaining further particulars and the preparation of technical reports’? It was terribly frustrating to get this documentary support too late.

Playing politics

David Hawker, my local federal MP, had supported me, and the issue of rural telecommunication services, since 1992. In 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 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 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.’⁴ 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 Mrs Hughes 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 Dr Hughes, the arbitrator. On 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.⁵ 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.⁶

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 2001, five years after the event, that I received from the TIO, through FOI, a copy of a letter dated 13 February 1996, written by John Rundell of the Technical Resource Unit to Mr Pinnock (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.

In the letter, Mr Rundell acknowledges that the FHCA financial report was incomplete (‘… the final report did not cover all material and working notes’⁷), 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, John Rundell’s 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, Dr Hughes (the arbitrator), who then attached a copy of the letter in his response⁸ 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 Graeme Ward:

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?

Telstra’s Ted Benjamin, who 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 Mr Pinnock 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.

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 won a total award of several million dollars between them from this Senate Inquiry, and the other sixteen got nothing.

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.’⁹

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 Mr Black’s 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 January 1995, 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 missing documents?

Document (Burying The Evidence File 1) dated 16 May 1994, is a copy of my sworn statement faxed on this day to Detective Superintendent Jeff Penrose of Australian Federal Police (AFP) in which I note:

"At approximately 4.20 pm yesterday, I spoke to Detective Superintendent Jeff Penrose (Federal Police) regarding my concerns about what had taken place.

My purpose for being at Telecom House was that when Telecom had originally supplied the FOI documents, they had somehow failed to supply the adjoining documentation that should have accompanied some of these Fax Header Sheets (fifty six (56) header sheets in all)

It is now my concerns were justified...and  In the office provided for me, that because much of the FOI documentation was so blanked out that it was hard to march the correct correspondence to the Telecom Header Sheets in question.  

The moment I brought to their attention the irregularities regarding the two faxes in question there was an immediate urgency to terminate my presence and I was asked to leave at 40.40 pm".

This was the reason I phoned Detective. Superintendent Jeff Penrose of the Australian Federal Police and described the situation to him.  Mr Penrose responded with words to the affect that:

‘… it is illegal to destroy documents during a discovery process’ and went on to explain that my attendance at Telstra’s office certainly qualified as an official ‘discovery process’.

 

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