Not Fit For Purpose

Exhibts for Not Fit For Purpose 

Example 1:  File AS 942 - AS-CAV 923 to 946 

Example 2 :  File 34-C - AS-CAV Exhibit 1 to 47

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

© 2025 Absent Justice

 

 

Not Fit For Purpose - October 2025

DRAFT 

Setting the Scene

 

 

19^th April 1988: Telstra records one of Alan’s complaints Exhibit (AS 1). Alan had driven approximately twenty kilometres from the Camp into Portland to do some shopping when he realised he had left his shopping list behind, so found a public phone to ring his wife, Faye. He was stunned when, instead of reaching Faye, he twice reached a recorded message stating the phone had been disconnected. Alan rang Telecom’s fault centre and was told Telecom would investigate the problem. Finally, he decided to try to ring the camp again to check the purchases against the list. This time the phone was engaged and he assumed Faye was talking to a friend or, hopefully, a prospective customer.

When Alan arrived back at the camp Faye advised him she had not answered, or made any phone calls the entire time he had been gone.

 

 

26^th April 1988: Telstra records another one of Alan’s complaints (AS 1).

 

 

2^nd & 24^th May 1988: Telstra records two more of Alan’s complaints (AS 1).

 

One of the faults frequently experienced with the phone at the camp were call drop-outs.  If Alan or his wife had rung the person themselves, this was not such a great problem at first since they could just redial, although it did cost them another STD call. The problem became much worse if they couldn’t reconnect (and often the line remained dead for some time), or if the call was inbound (as the caller had to bear the cost of redialling). If the call had come in to the camp, particularly if it was one of the few business enquiries that managed to get through at all, it was very frustrating for Alan or Faye to wait and wait in the hopes of the caller ringing back, ultimately causing a loss of prospective clients.

 

2^nd & 6^th September 1988: Telstra continues to record Cape Bridgewater fault complaints.

 

The phone problems worsened. Often the line remained dead for some time after the preceding call had been terminated. This problem was not often noticed until the receiver was lifted to dial out of the business. (AS 1) 

 

6^th & 10^th January 1989: As the weeks went by Alan and Faye knew something was amiss as their new business should have been flourishing by now. They began to wonder if their decision to move to Cape Bridgewater was the right one. Family arguments ensued as Alan pushed to sell their beautiful family home in Melbourne and asked his wife, Faye, to give up her thriving dressmaking business in order to finance their new endeavour.

The business lost due to the phone issues was creating constant stress and certainly attributed to the breakdown of Faye and Alan’s marriage.

AUSTEL's 2/3 March 1994 draft Cape Bridgewater report (AS 487) offers enough evidence to show that Telstra had been aware of these problems, yet continuously denied them (AS 1).

It is important to note here that this Austel report (AS 487) was not released to Alan by ACMA (Australian Communications and Media Authority, and Austel’s new name) until 19 November 2007, some 13 years after it was drafted, and was only released as it was requested under Freedom of Information, and not released in full. This supposedly ‘secret’ and very damaging document is referred to many times throughout this chronology.

20^th October 1989: Local Telstra technicians had, by then, assured him there were no real problems with the Cape Bridgewater exchange, and that once the new RCM exchange was installed any lingering ongoing congestion problems would be eliminated.

 

Interception Issues / Criminal Conduct

3^rd June 1990: This newspaper article (see below) from The Australian (AS 765-g) states under the heading: Telecom ‘spying’ on its employees further supports pages 1 to 6 of the Australian Federal Police (AFP) transcripts and their concern that Telstra had been hand-writing the names of various people and businesses Alan had been calling on the side column of the CCAS data records which collates all incoming and outgoing calls to Alan's business (AS 765-f).

This newspaper article states

"Democrat Senator Jean Jenkins told the Senate last week Telecom’s activities including bugging workers’ homes.”

She also said:

“… the accusations were contained in a statement by a former member of Telecom’s Protective Services branch. Senator Jenkins said the man claimed:

and some of those claims were:

• He and other Telecom employees and private investigators hired by Telecom did secret surveillance on hundreds of compensation recipients.
• He had been directed by his superior to use whatever methods to get the desired results, even when it was obvious the claimant was genuinely injured.
• Claimants have had a “C.CASS run” on their homes, which is a procedure where a computer can print out all numbers dialled on a home phone."

The hand-written notes in the right hand column of this CCAS data (AS 765-f) include, against various dates, the names of people that Alan had telephoned and/or faxed on the 31^st January 1994. e.g. GM” (Golden Messenger); AUSTEL; and the Ombudsman.  In one instance the name “Faye Smith” has been inserted when Alan had phoned his ex-wife. This supports the statements made by Senator Jenkins (above) regarding Telstra’s secret surveillance of their own employees in 1990 because here we have Telstra using the same practices in January 1994, and more disturbingly, while they were in litigation with Alan. 

Pages three to five of the transcript of Alan’s interview with the Australian Federal Police (AFP) on 26^th September 1994 (AS 765-D) relates to Telstra’s recording of who Alan phoned or faxed, and when. 

The AFP believed that Telstra had monitored Alan’s calls because all the people Telstra had recorded were associated with Casualties of Telstra (COT – refer glossary) issues. These three pages from the AFP transcript, together with other documents that Alan provided the AFP between February and November 1994, prove that Telstra had been listening in on private conversations prior and during his Government-endorsed arbitration. 

Australian Federal Police transcripts, (AS 765-D), also support Alan’s belief that, during late 1992 and early 1993 the Cape Bridgewater Holiday Camp was under surveillance. During this same period, Cathy Ezard was a professional associate of Alan’s, having previously visited his business with a social club from Ballarat. Cathy later signed a statutory declaration dated 23 May 1994, explaining a number of strange occurrences when she attempted to collect mail on Alan’s behalf from the Ballarat Courier Newspaper office (AS 22).

This declaration leaves questions unanswered as to whom collected Alan’s mail and how did they know there was mail to be collected at the Ballarat Courier mail office. On both occasions when this mail was collected by a third person, Alan had previously telephoned Cathy, informing her that the Ballarat Courier had notified Alan there was mail waiting to be picked up.

 

 

Fault Reports / Customer Letters advising RVA

 

15^th August 1991: This Telstra fault report Subject: Cape Bridgewater, although dated 2^nd February 1994, notes various points including the following:

 

• "LTS Melbourne were aware of the problem in early 1990 as Optocoupler measurements were documented on file date 13.02.90 (ref p34)
• The Cape Bridgewater Customer had documented complaints of call dropouts from 12/89 to 12/91 the later date some 7 months “after” the A735 loop mux had been replaced by the RCM (ref Source file)
• The question remains – why did it take one year for the Cape Bridgewater Loop Mux to be upgraded from the issue of the Work Spec….”  (AS 3)

Note: LTS is Local Telephone Switching

Thus supporting that Local Telephone Switching Melbourne (LTS) ‘were aware of the problem in early 1990,’ showing that Telstra knew Alan had major problems with his service over many years.

12^th February 1992: This hand-written letter from Gladys Crittenden, Haddon & District Community House Inc (AS 9-a) notes: – To Whom It May Concern states:

"Our group rang the Cape Bridgewater Camp on a number of occasions. Mainly from November 1991 through to February 1992, to try to book and finalize our camp arrangements. When I rang the number given to us we only got a taped message from Telecom to say that this number had been disconnected.  I wrote to the camp and told the Manager of the problem and to confirm his phone number. When we rang again we still got the same message as before about being disconnected."

2^nd July 1992: Telstra document Subject Grade of Service Complaint Mr Alan Smith notes:

"Our local technicians believe that Mr Smith is correct in raising complaints about incoming callers to his number receiving a Recorded Voice Announcement saying that the number is disconnected.

They believe that it is a problem that is occurring in increasing numbers as more and more customers are connected to AXE."  (AS 9-B)

12^th July 1992: This Telstra internal document (AS 705-B) states:

"Congestion between Cape Bridgewater and Portland had been prevalent as only five Junctions available. This situation was to be upgraded with the cutover of Cape Bridgewater RAX to an RCM parented back to Portland AXE 104."

This document explains that congestion meant incoming and outgoing calls intended for Cape Bridgewater could not be connected, because the five junctions were overloaded and, therefore, often resulted in a dead line. It has since been recorded in Exhibit AS DMR & Lanes Report that during the first three years of Alan’s business ownership there were only eight final selectors operating from the Rural Automatic Exchange (RAX), meaning that if four people from the 66 resident families in Cape Bridgewater at that time (mobile phones did not operate in Cape Bridgewater during this period) were on the phone at the same time this allowed only 4 free lines for the remaining 128 other residence (some with older children). Of course the lines were congested, and even more congested during holiday periods.

The alarming fact surrounding the statement in (AS 705-B) is when the RAX was cutover to the newer Remote Customer Multiplexer (RCM) Telstra forgot to program the 267 code into the Melu Melbourne Exchange that switched calls to Cape Bridgewater via Portland. It has been shown below using Telstra's own documents that this non-recognised code went undetected for 7 months - 7 months where 50% of ALL callers from Melbourne to Cape Bridgewater, when ringing Alan or anyone else in Cape Bridgewater, went unconnected.

24^th July 1992: This hand-written letter from Robert Palmer, Heywood Primary School – To Whom It May Concern notes:

"There have been several instances over the year when I have attempted, at length, to contact Mr Alan Smith at the Cape Bridgewater Holiday Camp and Convention Centre without success.

In the evenings of October/November 1991 I phoned at least six times to get the recording that the number was not connected. These calls were from my private home.

In school time during March/April 1992 I phoned to ascertain dates available for the Heywood Grade 4 camp and again received the message that the number was not connected." (AS 9-A)

 

 

1^st September 1992: Rosanne Pittard, Telstra’s General Manager, sends Alan a letter:

"Whilst our recent tests indicate that your service is now performing to normal network standards, I am initiating a further detailed study of all the elements of your service and the tests which have been conducted." (AS 12)

 

18^th September 1992: Mr Bob Beard, Telstra’s Service Manager, sends Alan a letter:

"We believe that the quality of your telephone service can be guaranteed and although it would be impossible to suggest that there would never be a service problem we could see no reason why this should be a factor in your business endeavours.” (AS 13)

Telstra Freedom of Information (FOI) document (date) folio R01444 (AS 14) confirms that Telstra had documented people experiencing a false Recorded Voice Announcement (RVA) recorded message on Alan's service as it was not connected to Telstra's service lines from at least March 1992. This document also confirms that a Heywood resident, Mrs Saville, also complained of the same RVA fault when trying to ring Alan on 2/9/92. Document R01444, confirms the fault was not fixed until 7^th October 1992, three weeks after Mr Bob Beard had sent Alan this letter.

 

15^th October 1992: This Telstra record (AS 10) shows Alan’s complaint submission on 13 October 1992 advising incoming calls to his business at 1:20 pm, 1:40 pm, 2:00 pm and 3:00 pm rang only once and when the receiver was picked up it was a dead line. (AS 11) shows that a Portland Telstra technician advised management that:

"We had the ELMI disconnected at the RCM and was installing it at Mr Smith's house.

The CCAS showed no evidence of above."

(AS 10) are copies of two ELMI tape records showing that an ELMI was connected at Alan's premises on 13 October 1992, and that calls at 13.29.25 (approximately 1:30 pm) and 15.01.11 (approximately 3:00 pm) did register as coming into Alan's business.

Why was a local Telstra technician saying one thing, and documents Alan acquired under FOI saying something else? This conflicting information has largely contributed to business lost between February1988 and the start of his arbitration in April 1994. But together, this conflicting information and the flawed 12 December 1994 arbitration Witness Statements (which are discussed later), would have influenced the arbitrator and certainly rendered Alan’s complaints of ongoing telephone and fax problems less serious.

 

23^rd November 1992: Don Lucas, Telstra's Commercial Vic/Tas Region, fault centre incorrectly advises Alan that the RVA MELU fault had only lasted for three weeks and had been fixed by 19^th March 1992. (AS 15)

Another Telstra FOI document K02643 confirms that Telstra considered this particular RVA MELU fault to be apparent from the cut-over from the old exchange to the new RCM at Cape Bridgewater, dates pertained to from August 1991 to at least 19^th March 1992 (AS 16)

In his letter, Mr Lucas further states that another software ‘register’ problem relating to RVA local faults had only lasted from 2^nd to 7^th October 1992, while other documents received under FOI R01444 (AS 15) confirm that Telstra knew that this fault was apparent from at least 9^th September 1992 to 7^th October 1992.

 

 

Settlement

11^th December 1992: AUSTEL had by now become involved in the COT four cases and validated their complaints as valid. They advised Telstra it would be best to address these complaints in a commercial way and offered a settlement procedure. (Please note, this is an entirely separate settlement process to the 1994 arbitration process mentioned throughout and in depth later.)

During this settlement process Alan provided Telstra several letters from clients who had documented their own phone problems when trying to contact the Cape Bridgewater Holiday Camp (AS 14).   

He also produced at least four letters he had written to the local rural fault centre at Hamilton, somewhere between June 1988 and September 1989, including four independent letters he had received from the operators of the Empress of Tasmania, Heywood Primary School, Collingwood Half-way House and the Haddon Community Health Centre. All of these organizations had experienced difficulties in contacting Alan because of the RVA phone message telling the caller, 'The number you are ringing is not connected'.

Affecting the outcome of this settlement was the alarming discovery that during 1993, the Regulator confirmed that Telstra’s ‘congestion’ tone was very similar to an engaged tone and, unless the caller was aware of the difference (and most non-technical people would not be aware of the difference) they would believe they were hearing an engaged signal when they were actually hearing a ‘congested’ signal.

Because the local Cape Bridgewater exchange used such old technology with so few lines, it is not surprising that it was often congested. This meant that it was quite likely that many prospective customers gave up trying to reach Alan, because they believed he had either ceased trading or not able to be contacted.

In one particular Telstra document FOI C04006 (AS 5) titled Telecom Secret, there is a reference to “... Mr Smith’s service problems…” being “…network related and spanned a period of 3 - 4 years.” and, on document C04008, there is another reference – “Overall, Mr Smith’s telephone service had suffered from poor grade of network performance over a period of several years; with some difficulty to detect exchange problems in the last 8 months.”

As stated, if they knew of the “poor grade of network performance” spanning “a period of 3 - 4 years”, how could they possibly have provided two guarantees that the service was adequately working two and three months before this settlement? 

Furthermore, document C04008 also states “with some difficulty to detect exchange problems in the last 8 months.” This means that the ‘difficulty to detect’ the problems dated back at least to April of 1992.  As a responsible corporate senior manager, how did Rosanne Pittard, Area General Manager, the person who signed this letter, ever allow the two ‘guarantees’ to leave her office?

2^nd April 1993: A letter sent in April 1993 to the Editor of the Herald-Sun Newspaper in Victoria, read in part: 

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

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

The letter goes on to say:

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

I also rang around the end of February (1993) and twice was subjected to a piercing noise similar to a fax. I reported the incident to Telecom who also got the same noise when testing." (AS 1006)

Because of a number of reports regarding this ‘piercing noise’, a worker from Telstra’s Country Division arranged to have Alan's service switched to another system.  Unfortunately, this did not help.

5^th May 1993: Alan rang psychologist Mr Don Burnard’s office looking for support. Alan's conversation with his office was interrupted three times by phone faults.  Later, Alan received a letter from Mr Burnards office, dated 5 May 1993 saying: 

“I am writing to you to confirm details of telephone conversation difficulties experienced between this office and your residence mid-morning this day, 5 May 1993. 

At approximately 11.30am today Mr Alan Smith telephoned this office requesting to speak with Mr Don Burnard.  Mr Burnard was not available to take the call but during this time the telephone cut out three times. Each time Mr Smith telephoned back to continue the call.” (AS 1007)

Other rural subscribers wrote to various TV stations and newspapers supporting COT  allegations that, with regard to telephone services, rural small-business people, as well as the rural general public, were not being supplied with a level playing field when compared to their city cousins.

One of these letters dated 23 August, 1993 is particularly interesting. It came from a company of Insurance Loss Adjusters in Ballarat, a rural city in Victoria, and was sent to the producer of “Real Life”, a TV current affairs program then being broadcast on Channel 7.  The Loss Adjusters wrote:  “Re Problems with Telstra”

"I have watched with interest the shorts leading up to tonight’s program as I have similar problems to the man at Cape Bridgewater.

Our office is located in Ballarat and due to Telecom structure the majority of our local calls are STD-fee based. (STD calls are charged per time)

On many occasions we have been unable to get through to numbers we have dialled, often receiving the message “this number is not connected” or similar messages which we know to be untrue.

Clients report that they often receive the engaged signal when calling us, and a review of the office reveals that at least one of our lines was free at the relevant time.

We have just received our latest Telecom bill, which in total is up about 25% – 30% on the last bill.  This is odd because our work load in the billing period was down by about 25% and we have one staff member less than the previous billing period.” (AS 1008)

 

In the first twelve months of 1993, Alan received another eleven written complaints about his own service problems, and four small-business people calling themselves Casualties of Telstra (COT) was formed.

Well into 1993 things began to warm up for COT Arbitration Cases: the then-Shadow Minister for Communications, the Hon Richard Alston, was showing an interest in their claims and a National Party Senator, the Hon Ron Boswell, who obviously had no political gain in mind, also became involved. Even though the National Party Senator was based in Queensland, and most of the members of COT were in Victoria, he has continued to offer his support.

Alan's local Member of Parliament (South West Victoria) the Hon David Hawker MP, was another who saw his ‘duty of care’ to his constituents, and so answered the call for help.  He continued to support Alan for more than fifteen years, but unfortunately was never able to resolve the ongoing telephone/fax problems at the holiday camp, for Alan and/or the new owners of the business.

While the politicians and Telstra conducted their secret deals behind closed doors, Alan continued to lobby Austel (Australian Telecommunications Authority) for assistance.  Between February and June of 1993, Alan provided more and more evidence of incorrect charging on his 008/1800 freecall service as well as the other three lines servicing his business.  Finally, AUSTEL's General Manager of Consumer Affairs asked Alan to record all the short duration calls and RVAs that were still being charged to his 008/1800 accounts, and were also showing up on the ELMI testing machine Telstra had installed at the local exchange.  Short duration calls were particularly irritating – the phone would ring once and stop, or if Alan or his staff picked it up after that first ring, they would find a dead line with no way of knowing who had tried to get through.

Not only was AUSTEL, now involved in the COT battle by late 1992, but the COT Arbitration Cases were also dealing with the Commonwealth Ombudsman’s Office as well, so both these organisations were aware that Alan continued to ask Telstra, under the rules of FOI, to provide him with copies of the data from the testing equipment at the phone exchange that the camp was connected to, for the period of May to July 1993.

The Regulator’s General Manager of Consumer Affairs was becoming more concerned at the evidence COT members were producing; evidence of faults and incorrect charging.  These two problems — people not being able to get through and calls being charged incorrectly, come together in a note from a lady in Croydon who wrote regarding problems getting through to Cape Bridgewater on 22^nd May 1993. She explained how she continually reached a recorded voice announcement saying that Alan's phone had been disconnected. Alan's Telstra 008 account for that day showed a number of very short calls.  Apparently he was being charged for RVA messages, short duration and faults that Telstra calls ‘post dialling delay faults’! (AS 1012)

 

 

Briefcase Saga

On 3^rd June 1993: As a result of Alan's constant complaints to the Regulator, including incorrect charging. Telstra’s ‘Network Investigations’ department were finally involved and, for the very first time, Telstra investigators were sent to Cape Bridgewater.  At last, or so Alan thought, he would be able to speak directly to people who knew what they were talking about and get to the bottom of the issue.

Mr David Stockdale and Mr Hew Mackintosh told him nothing he hadn’t heard before. With nothing resolved, they finally prepared to leave and head back to town.  Alan's own transport was, by this time, long gone: sold to pay some of his mounting debts, and he also needed to go into Portland.  The technicians offered Alan a lift. 

After spending some time in Portland Alan got a lift back to Cape Bridgewater with a neighbour.  In his office he found that, one of the technicians, had inadvertently left behind a briefcase. Alan opened it to find out who actually owned it and the first thing he found was a file titled “SMITH, CAPE BRIDGEWATER”. 

After five gruelling years fighting with Telstra and being told various lies along the way, here was possibly the truth, as seen from Telstra’s perspective.  Some of the documents in this file were much too technical for Alan to understand or interpret. Some that he could decipher, however, dated back to the ex-gratia compensation payment he received on 11^th December 1992.  Then he froze.  He had turned the page to be confronted with the words “Problem 1”.

This document referred to Telstra being aware that the alleged three-week RVA fault in March of 1992 had actually lasted for ‘eight months’, not the three weeks Alan had been told on the day he accepted the compensation payment (AS 16). A copy of a similar document that Alan received in 2007 from now Australian Communications Media Authority (AS 15) supports that document.

The file also revealed that Telstra had known before Alan’s settlement, that major faults still existed in their network at the time of the settlement, but they did not disclose this to Alan during that settlement process (AS 5), (AS 9) and (AS 10).

Another not seen before document dated 24^th July 1992, and with Alan’s phone number in the top right corner, refers to Alan's complaint that people ringing him get an RVA “service disconnected” message, with a sentence reading: “Network investigation should have been brought in as fault has gone on for 8 months " (AS 1003).

A further document (AS 1004), dated 27 July 1992, discusses other problems experienced by possible clients who tried to contact Alan from Station Pier in Melbourne: some of these hand-written records go back to October 1991, and many of them were fault complaints that Alan had not recorded himself.  Telstra, however, has never explained who authorised the withholding of these names from Alan because if he had known he could have contacted them with an alternate contact number, Alan’s Melbourne agent, Peter Turner.  Employing an agent was the only alternative due to Telstra’s inability to fix the ongoing problems.

Some of the entries listed on document AS 1004 appeared to have been schools and social clubs, which not only means that Alan had clearly lost a number of very large bookings because they had not been able to get through, but of course, he lost any return bookings or referrals and repeat business. Even if only half those enquiries turned into bookings, all that business, and the repeat and/or flow-on business was still lost because Telstra wouldn’t or couldn’t fix the phone problems, and continued to refuse admission for ongoing faults.

The documents in the briefcase quickly informed Alan that they were aware of the impact Telstra’s inadequate service was actually having on his revenue base.

 

Document AS1005 supports that it was quite possible that the RVA problems Alan’s business experienced had actually lasted from at least August 1991 to at least July 1992 – and probably longer.  It is also clear from this internal Telstra memo that their Portland technicians supported this, because document (AS 1005) states that:

 

"Our local technicians believe that Mr Smith is correct in raising complaints about incoming callers to his number receiving a Recorded Voice Announcement saying that the number is disconnected.

 

They believe that it is a problem that is occurring in increasing numbers as more and more customers are connected to AXE."

 

The Portland Telephone Exchange, which was manufactured by Ericsson, was commonly known around the word as an AXE exchange and, as will be explained later in this story, Telstra was well aware at the time that other countries were experiencing major lock-up problems with the AXE.  They also knew that this lock-up fault could have created anything up to 15% of lost calls. This Telstra internal email FOI folio A13980 dated 24 February 1994 from a Kevin Dwyer to Peter Gamble (AS 1009) notes:

 

“You are quite correct in your thought that the anecdotal reference applied more to AXE than ARE-11. 'Lockups' are generally well-known as a problem in AXE exchanges, not only in Australia but in overseas countries as well.”

 

The email goes on to say:

 

“Ericsson are said to have suggested that call loss could be up to 15%.”

 

It is perfectly clear that Alan was certainly misled and deceived by Telstra as part of his 11 December 1992 settlement, and it eventually became equally clear that he had actually been misled almost from the very first complaint he registered in April 1988 as well

 

9^th June 1993: this letter to Telstra from AUSTEL is part of the briefcase saga, as it confirms that AUSTEL was concerned that Alan had been misled and deceived by Telstra during the aforementioned settlement.  On page one, paragraphs four and five, when referring to Alan’s allegations that Telstra had withheld this information from him on 11^th December 1992, this letter states:

 

"Further, he claims that Telecom documents (found in the briefcase) contain network investigation findings which are distinctly different from the advice which Telecom has given to the customer concerned.

In summary, these allegations, if true, would suggest that, in the context of the settlement, Mr Smith was provided with a misleading description of the situation as the basis for making his decision. They would also suggest that the other complainants identified in the folders have knowingly been provided with inaccurate information.

I ask for your urgent comments on these allegations. You are asked to immediately provide AUSTEL with a copy of all the documentation which was apparently inadvertently left at Mr Smith’s premises for his inspection.”

It goes further to say:

“In light of Mr Smith’s claims of continuing service difficulties, I will be seeking to determine with you a mechanism which will allow an objective measurement of any such difficulties to be made." (AS 27)

 

 

Telstra’s Muzzling Power 1

 

9^th June 1993: A TV news program was clearly also a target for Telstra's executives to muzzle the media regarding the validity of the COT Arbitration Cases.  This Telstra internal email dated 16 June 1993 FOI folio A04646 (AS 956) reports:

"Good news re channel nine news. Haven’t checked all outlets but as it didn’t run on the main bulletin last night, we can be pretty certain that the story died the death. I wish I could figure which phase it was that convinced (A TV journalist) not to proceed. Might have been one of (Telstra's most senior executives and TIO Board Member) pearls..."

This Telstra executive being the Telstra Corporate Secretary, the reader by now may well be asking themselves, what type of pearl had been cast by Telstra's Corporate Secretary? Were they pearls of wisdom, financial pearls, or another type of pearl that convinced a respected journalist to drop a story?

During meetings following this casting of these pearls, Telstra's Corporate Secretary was assigned to take charge of deflecting allegations about a fellow Telstra executive, (name deleted) for misleading a Minister concerning the true extent of the faults associated with the telephone exchange that two COT businesses had been connected to. These two Telstra executives were also members of the Telecommunications Industry Ombudsman board (TIO) when this particular Telstra executive (TIO Board member) misled the Minister, and Telstra's Corporate Secretary was assigned (during a Telstra COT meeting) to deflect this serious matter. Again, both these Telstra executives were still allowed to attend TIO Board meetings when the TIO was discussing the progress of the TIO-administered COT arbitrations (AS 232-A).

 

 

Briefcase Saga, continued

One of the more important documents left in that briefcase provided evidence that discussed the manner in which they settled with me in December 1992. It indicates they were fully aware that there were still major communication problems affecting the viability of my business endeavours. This is the same ‘briefcase’ evidence that Telstra later told me they had also copied on to AUSTEL for assessment. Then, on 27 August 1993, Telstra's Corporate Secretary wrote to me about the same ‘briefcase’ documents, noting:

"Although there is nothing in these documents to cause Telecom any concern in respect of your case, the documents remain Telecom’s property and therefore are confidential to us.

Later in the letter:

I would also ask that you do not make this material available to anyone else." (AS 1089)

Telstra’s FOI document dated 23 August 1993 and labelled as ‘folio R09830’ (AS 1133-A) with the subject listed as ‘The Briefcase’ is alarming to say the least. This document, which had been copied to Telstra's Corporate Secretary, notes:

"Subsequently it was realised that the other papers could be significant and these were faxed to (name deleted) but appear not to have been supplied to Austel at this point.

The loose papers on retrofit could be sensitive and copies of all papers have been sent to (name deleted)."

The word ‘alarming’ is used in relation to this last ‘briefcase’ document because the second appointed TIO, later told the Senate Estimates Committee that COT/TIO-administered arbitration issues were openly discussed at regular monthly TIO Council meetings, which suggests that they would have been discussed at monthly TIO Board meetings too.

The COTs will never know for sure whether the arbitrator did not find against Telstra on this ‘briefcase’ issue, because he was influenced by the Corporate Secretary's pearls, who was also, at the time, a member of the TIO Board.

Further, even though my claim advisor (who had been a witness to the Fitzgerald Royal Commission into Police Corruption in Queensland and a National Crimes Investigation Detective) proved to the arbitrator how unethical my 11 December 1992 Settlement process had been, the arbitrators’ arbitration award still found in favour of Telstra’s defence regarding that earlier settlement. 

Then, secret Government Regulatory report dated 3 March 1994 (Main Evidence File No/15), which was only supplied to me from the Government Regulator in November 2007, condemned Telstra’s 11 December 1992 settlement at point 45 and 46 noting:

"File evidence clearly indicates that Telecom at the time of settlement with Smith had not taken appropriate action to identify possible problems with the RCM. I March 1993 a major fault was discovered in the digital remote multiplexer (RCM) providing telephone services to Cape Bridgewater holiday camp.  The fault may have been in existence for approximately 18 months. The fault Given the nature of Mr Smith's business in comparison with the essentially domestic services surrounding subscribers, Mr Smith would have been more affected by this problem due to the greater volume of incoming traffic than his neighbours.    

Telecom's ignorance of the existence of the RCM fault issues raise a number of questions in regard to Telecom's settlement with Smith. For example, on what basis was settlement made by Telecom if this fault was not known to them at this time? Did Telecom settle with Mr Smith on the basis that his complaints of faults were justified without a full investigation of the validity of these complaints, or did Telecom settle on the basis of faults substantiated to the time of settlement? Either criteria for settlement would have been inadequate, with the latter criteria disadvantaging Mr Smith, as knowledge of the existence of more faults on his service may have led to an increase in the amount offered for settlement of his claim."

Once again, for reasons known only to the arbitrator, his ex-Telstra employee/technical advisor favoured Telstra’s arbitration defence in relation to this 11 December 1992 Settlement issue and so the arbitrator recorded, in Alan’s award, that the RCM fault had only lasted “…at least 50 days (probably 70) in early 1993.” (AS 992).  The DMR & Lane report, at point 2.9, also records 50-70 days (AS 993). 

In November 2007 however, under FOI from ACMA, Alan finally received a copy of AUSTEL’s 3 March 1994 findings against Telstra (AS 487), and the truth was revealed:  the RCM digital fault had existed within the system for at least eighteen months, not 50 to 70 days, as recorded by the arbitrator. While downplaying this serious and ongoing fault was bad enough, the arbitrators ’ award and the TIO-appointed technical consultants findings included even more favouritism by repeating Telstra’s defence almost word for word. (Arbitration issues are discussed in full later.)

At point 1 on page 33 of Dr Hughes’ award (AS 922) he notes that lightning damage to the RCM on 21 November 1992 affected the service:

“… for 4 days before restorative action was taken.”

At point 2.8, on page 26 of the TIO-Technical Evaluation Report, in relation to the same lightning strike of 21 November 1992, they note:

“The condition affected services for 4 days, before restorative action was taken, which may have been less than successful, refer 2.9.”

Then in AUSTEL’s secret findings for the same fault, at their point 23 (AS 487), they note: 

"It is difficult to discern exactly who had responsibility for Mr Smith’s problems at this time, and how information on his problems was disseminated within Telecom. Information imparted by the Portland officer on 10 February 1993 of suspected problems in the RCM “caused by a lightning (sic) strike to a bearer in late November” led to a specialist examination of the RCM on March 2 1993. Serious problems were identified by this examination."

It may never be possible to calculate what the arbitrator would have awarded Alan if he had known that this fault lasted for eighteen months rather than 50 to 70 days, or how much he would have awarded Alan had he known that the other four-day lightning strike fault had been ongoing from November 1992 to March 1993. What we do know is that AUSTEL’s report (AS 487) shows that, for around seven months, until Alan’s complaints were finally acted upon, Telstra had somehow forgotten to program the 055 267 telephone prefix for the Cape Bridgewater exchange into the Lonsdale Telephone Exchange in the centre of Melbourne. 

AUSTEL has since accepted that 50% of all callers trying to reach Cape Bridgewater during these seven months would have gone through the Lonsdale Exchange and would have been greeted by a recorded voice message telling the caller that ‘the number you are ringing is not connected’, thereby inferring that Alan was no longer trading.  In relation to this same recorded message however, the arbitrator’s award only reported that the incorrect recorded message caused between 20 and 33% of calls to be lost and it only lasted for: “...16 days and possibly longer”.

 

 

 

Short duration and 1800 call problems

18^th June 1993: Julian Cress from 60 Minutes Channel Nine Television sends Alan a facsimile noting:

"Just a note to let you know that I had some trouble getting through to you on the phone last Thursday. Pretty ironic considering that I was trying to contact you to discuss your phone problems.

The problem occurred at about 11AM. On the “008” number I heard a recorded message advising me that “008” was not available from my phone and on your direct line it was constantly engaged." (AS 24)

In an in-confidence internal Telstra memo dated 25^th November 1993, on the subject of short duration calls on Alan's phone lines, Telstra states:

"Mr Smith is obviously well aware that CPE (customer premises equipment) is a significant source/cause of charging and billing disputes, particularly those involving short calls which the customer believes were unsuccessful and should not be charged; telephone answering machines, facsimile terminals an call diverters typically are at the centre of these disputes." (AS 46-A)

Alan provided evidence to both AUSTEL and the later arbitration process proving that neither his answering machine nor his fax machine could have answered many of these short duration calls. This leaves call diverters as the only ‘culprit’ possible and, since Alan had not authorised any call diversion on any of his lines, this raises the question: Who then had authorised the diversion of at least some of Alan's incoming calls?

The true level of short duration and post dialling delay faults were well known to Telstra as early as May 1993, but they chose to hide the problems and continue to collect revenue from their customers regardless of the level of customer complaints.  In some cases, Telstra forced customers to pay incorrect accounts by threatening to disconnect the customer’s phone lines, even though the customer complaints may well have been quite real.

A Telstra FOI document folio H36291, dated 11^th October 1993 (AS 42B), states

"I am receiving a disturbing number of instances where the 1800 prefix ‘does not work’ in the network.”

And later:

“Given we are now part way through a major Direct Mail national campaign launching Freecall 1800 Statewide, I need to know the extent of the problem of missed areas across the country."

Another FOI document dated 1^st November the same year, Telstra folio H36293, goes even further (AS 45-A) noting: 

"All Admin groups are being inundated with complaints from customers who have advertised their numbers as 1800 but their customers are simply unable to get through to them. I have spoken to our fault staff out at Waverley who are also being inundated with the same complaints."

An even more alarming Telstra FOI document folio H36178 indicates that, even while being fully aware that they were promoting a faulty service, which would not provide the service as was adverted, Telstra continued to charge their customers for calls that they knew were not connecting correctly, where the caller reached a dead line, thought they had dialled incorrectly and hung up, but the charge still registered at the other end – on the 1800 customer’s account.  This same document actually discusses concerns: 

“…that the matter requires fixing at a National level, not just on a fault by fault basis.”

and further notes that it:

“… also raises the question whether we should be actively promoting 1800 in the circumstances."

 

 

Telstra’s muzzling power 2

7^th July 1993: Another Telstra internal email, this one FOI folio C04054 (AS 957), shows that at about this same time, a number of Labor Party Senators were becoming more and more concerned at what COT members were uncovering.

Other FOI documents show that Telstra were not reporting the truth of the situation in the early months of 1993. It is also clear from more FOI documents that it is highly likely that some newspaper journalists were approached by Telstra and asked to ‘kill’ a story about the COT problems with their phone faults. This one, entitled “Cot Wrap-Up”, states, in part:

“I advise that Clinton be targeted for some decent Telstra exclusive stories to get his mind out of the gutter. He will write a nasty piece in tomorrow’s (thursday) paper. He will certainly mention the confidentiality clauses and I fully expect a call from him at home tonight.”

It goes further to say:

"I think it should be acknowledged that these customers are not going to become delighted. We are dealing with the long-term aggrieved and they will not lie down.

Further, I propose that we consider immediately targeting key reporters in the major papers and turn them on to some sexy “look at superbly built and maintained network” stories.”

We are left to wonder just who ‘Clinton’ was and why his mind was considered to be ‘in the gutter.'

 

12^th July 1993: Telstra FOI documents M34204 - M34205 (AS 30) confirm that Alan had been complaining of cut-offs on the phone after only talking for a few seconds in early January to March 1993.

This document shows that Telstra acknowledged there were 45,993 degraded minutes this period in the unmanned RCM exchange at Cape Bridgewater and likewise some 65,5355 in the same two month period.

Up to this period Alan had received thirty-six letters from different individuals, as well as more than forty other complaints from people who had tried, unsuccessfully, to respond to Alan's advertisements for his business. The Hadden & District Community House wrote in April 1993: 

"…problems with contacting you by phone.  Several times I have dialled (my phone number) and received no response  — dead line.  I have also experienced similar problems on your 008 number. Our youth worker, experienced similar problems while organising our last year’s family camp, over a six month period during 1991/1992."

As more and more letters like this arrived in Alan's office he began to seriously consider that Telstra senior executives were hiding the true facts of the problems at the Cape Bridgewater exchange. Surely they must have been aware by now that he was not inventing the problems he was complaining about?

In Austel’s (now ACMA) secret report mentioned earlier (AS 487), they uncovered 65,535 errored seconds and 45,993 degraded minutes at the Cape Bridgewater RCM unmanned roadside exchange between 1992 and 1993.

AUSTEL’s findings for this single complaint recorded:

"Some important questions are raised by the possible existence of a cable problem affecting the Cape Bridgewater Holiday Camp service. Foremost of these questions is why was the test call program conducted during July and August 1992 did not lead to the discovery of the cable problem. Another important question is exactly how the cable problem would have been manifested in terms of service difficulties to the subscriber."

12^th July 1993: a newspaper article from the Portland Observer Newspaper is headed ‘Network Complaints Taken Up by MPs’ (AS 825), and notes:

"Problems highlighted by Cape Bridgewater Holiday Camp operator Alan Smith, with the Telecom network have been picked up on by not only other disgruntled customers but Federal politicians.

Having suffered a faulty telephone service for some five years, Mr Smith’s complaints had for some time fallen on deaf ears, but it now seems people are standing up and listening.

Federal Member for Wannon, David Hawker, described the number of reports of faulty and inadequate telephone across Australia as alarming.

Mr Hawker said that documents recently presented to him showed that the problems people had been experiencing Australia wide had been occurring repeatedly in the Portland region."

 

 

Attempting to move on…but wait!

By June/July 1993, the public were becoming interested in what they were hearing about; The COT Arbitration claims battle - four Australians had taken on the Telstra Corporation.

At the camp in Cape Bridgewater, Alan acquired a logo especially for the over-forties singles club, and his Community Groups, which he was calling “Country Get-A-Ways”, and he hit the road with a vengeance, marketing a range of different weekend holidays. He had organised an outdoor canoe weekend, a walking and river cruise along the Glenelg River, and a Saturday Dress-up Dinner Dance with a disco, as well as a trip to the Coonawarra Wineries and a Saturday morning shopping tour to Mt Gambier, both in South Australia. This meant Alan was able to market the holiday periods in both Victoria and South Australia.

Numerous testimonials from hopeful customers trying to make a booking at Alan's venue from 1988 up to this period is already well documented in AUSTEL's report (AS 487). At point 9, 10 and 11 in their reporting AUSTEL notes:

"During the past five years Mr Smith has received many testimonials from other network users such as community groups, health and welfare agencies, school and individuals which have advise of continuing difficulties contacting the camp. These statements support Mr Smith's claims of service problems of Mr Smith.

An important point in relation to Mr Smith's service is that he is operating a business service in an area which is predominantly that of a residential and/or farming community. Therefore both the nature, volume and origin of calls received by Mr Smith is comparison with those of his neighbours would be markedly different…

Often calls to the Cape Bridgewater Holiday Camp would be from people previously unknown to Mr Smith, who in comparison to other callers to Cape Bridgewater would be less likely to initiate further contact should they have difficulty in contacting the Camp…"

So here it was, mid-1993, and still hardly any phone calls were getting through to Alan at the Camp.  What he couldn’t know was that less than twelve months later, AUSTEL would discover that what Alan had been telling Telstra was the truth, but that AUSTEL would hide most of those truths from the relevant Ministers, from Alan and from the arbitrator.

All Alan knew was that his business was sinking fast and so he stepped up the marketing of the camp and the singles-club weekends; he visited numerous recognised social clubs around the Melbourne metropolitan area and spoke personally to the people in charge and in fact, over the next few weeks, he spoke to the Phoenix Social Club in Camberwell, the Australian Social Centre in Hartwell, Frenze-In-Deed in Mont Albert and Capers in Knox City, as well as visiting numerous other singles organisations in Ballarat and Warrnambool, both large country centres in Victoria.

Further newspaper advertising followed, with ads placed with the Leader Newspaper group in Melbourne.  This local newspaper group covers twenty-three different metropolitan areas around Melbourne. Ads also went into the local newspapers for a number of large regional centres around Victoria and South Australia, including the Geelong Advertiser, the Warrnambool Standard, the Ballarat Courier News, the Horsham Wimmera Times, the Colac Local News, the Mt Gambier-Border Watch and others. 

But complaints about the phones continued. People had enormous trouble getting through to the camp and, although some obviously persevered, it’s impossible to know how many simply gave up trying.

12^th August 1993:  This letter (AS 34 A) from Ms Elisie Espinoza from a singles club to Alan describes the constant engaged problems she experienced when trying to book a weekend during April and May 1993. Exhibit (AS 34 -B) is a Telstra FOI document K03870 dated 17^th June (assume 1993) refers to the same Elisie Espinoza and her friend Rita Stenoya. This document does not only record the two personnel phone numbers of these two ladies, it also confirms Telstra was fully aware of the times Alan's office assistant left the business when Alan went to Melbourne.

Ms Espinoza writes:

"I tried to ring you in order to confirm our stay at your camp site. However when I did this I found it impossible to get through since it was engaged for several hours.  I tried to ring later but encountered the same signals, on the 10th of August around 7:30 pm to 8.30 pm.

I believe you have a problem with the exchange and strongly advise you contact Telecom.

Do you remember the same problem happened in April and May?

I apologise but I have made arrangements with another camp."

 

17^th August 1993: this Telstra file note FOI folio K03096 (AS 35-A) is related to the Daylesford Community House (Victoria) and explains how the line was continually dead when they rang Alan's 1800 number four times on 17^th August 1993. And how, even so, Alan was charged for these four calls, all in the space of a single twenty-eight-second period (AS 35-B). 

Since the malicious-call tracing equipment (which locked the line up for 90 seconds) was not removed from Alan's phone line until 18^th August 1993 (AS 23-E), how could the Community House have been connected four times in such a short period of time?  It is clear from other FOI documents, and has been supported by Telstra technical consultants, that no call could have connected under these circumstances at any time between 26^th May and 19^th August 1993, while the call tracing equipment was still connected. So, where were these calls diverted to?

The group from the Daylesford Neighbourhood House finally arrived for their holiday in January 1994. Later, two letters arrived from members of this group complaining that my customer coin-operated gold phone service, provided on our property, was most unsatisfactory. They wrote that the phone was taking money ‘under false pretences’ and not connecting long enough for the caller to properly complete their calls. Both wrote that the line ‘went dead’ and they both supplied their names and addresses (AS 35-C)

 

 

Misleading and Deceptive Conduct

During this period Ann Garms, Graham Schorer, and Alan met with Senator Richard Alston, Shadow Minister for Communications, in his St Kilda Road (Melbourne) office, to discuss their ongoing communication problems, Telstra’s misleading and deceptive conduct in relation to those services and, in Alan’s case, the way Telstra had deliberately misled and deceived him during his December 1992 settlement process.

In the years to come, the COTs found Senator Alston to usually be quite stony-faced when discussing such matters, but this time when Alan showed him some of the documents he had found during the briefcase saga, the Senator changed his position and was not only showing empathy for Alan’s situation, but was clearly quite angry about Telstra’s behaviour during Alan’s December 1992 settlement.

Senator Alston was then quite clear as he explained that, while he believed that Telstra technicians and senior management could perhaps be excused for making occasional mistakes in such a large corporation, for them to knowingly deceive Australian citizens so deliberately could not be excused.

All three COT cases were then advised that if Telstra did not address this misleading and deceptive conduct in a manner befitting a government-owned corporation, then ‘heads would fly’ and Senator Alston was adamant that he would raise these issues with Robin Davey, Chairman of AUSTEL.

2^nd September 1993:  Senate Estimates Committee (Hansard) – When Senator Richard Alston, Shadow Minister for Communications, and the then Minister for Communications, Senator Bob Collins, questioned Mr Robin Davey, AUSTEL Chairman, regarding this matter it was clear that Mr Davey had confirmed that, if AUSTELS’s COT investigations found deliberate ‘misleading and deceptive conduct as distinct from sheer incompetence’ by Telstra towards the COT claimants, then AUSTEL would pass the matter on to the Trade Practice Commission. Mr Davey stated to Senator Collins (AS 736)

"We have legal advice which I am quite prepared to make available to you, Senator – I apologise that I have not got a copy with me at the moment – to the effect that, if we were to find misleading and deceptive conduct, as distinct from sheer incompetence, then we could direct Telecom to engage in an assessment process to assess the quantum. Having assessed the quantum, we do not have the power to enforce the quantum, but I am sure that at that point that would not be necessary. I think there would be such a moral persuasion at that point."

In AUSTEL’S report (refer Main Evidence File No/15) against Telstra in relation to Alan, which AUSTEL provided to Telstra in March 1994 during the COT arbitrations (see (AS 495), showed that AUSTEL did find Telstra had deliberately misled and deceived the claimants. So why did the Government Regulator conceal this information from the arbitrator?

At point 5.10, in the arbitrator’s award in Alan’s case he notes:

The AUSTEL report notes a number of instances of misleading conduct by Telecom of the nature described by the claimant, but not specific to the claimant as indicated earlier, the claimant has not articulated the legal bases for his claim, nor did I expect him to do so. Had he done so, however, he may well have alleged some instances of misleading conduct by Telecom of the nature set out in the AUSTEL report. (Main Evidence File No/15)

It seems that Senator Alston’s letter to Mr Davey has answered the two questions raised by Alan above, i.e.

1. Why did AUSTEL’s final report not state publicly that Alan’s phone problems were still ongoing, and

 

2. Why did that same report not declare specifically which COT Arbitration claims Telstra had mislead and deceived?

If AUSTEL had included those more adverse findings against Telstra in their formal report, this would have immediately led Senator Alston to call for a Senate Select Committee investigation into these matters, on behalf of the then-opposition party. It is therefore clear, that the formal AUSTEL COT Arbitration claims report, that was used as evidence in the COT arbitrations, was tainted, ‘got-at’ or ‘cleansed’ well before the COT members received their copies.

7^th September 1993:  This letter from Robin Davey, Chairman of AUSTEL, Telstra’s Corporate Secretary (AS 835), confirms that even when legitimate testing was carried out on my phone lines (see also AUSTEL’s reference to the poor testing regime by Telstra in our Main Evidence File No/13) covert report  shows Telstra’s testing equipment connected to Alan’s service lines caused additional problems. In fact, all the various types of testing equipment that was installed on Alan’s service lines appeared to have created extra problems, suggesting that at least some of the problems experienced by Telstra’s Chief engineer and his Melbourne counterparts, during Telstra’s 29^th September 1994, Cape Bridgewater Holiday Camp Service Verification Testing (SVT) could have been caused by Telstra’s faulty SVT equipment.

AUSTEL did not take exhibit (AS 835) into consideration when they allowed Telstra to submit known flawed Cape Bridgewater Holiday Camp (SVT) results as arbitration defence documents, even though the letter’s author, AUSTEL’s Chairman Robin Davey clearly states in it’s second paragraph:

“Your ‘two bob each way’ letter of 31 August 1993 outlining how Telecom is to monitor the COT Cases’ services in response to AUSTEL’s direction of 12 August does little to inspire confidence in Telecom’s approach to the issue.

The offer to provide…(specific testing)…might be interpreted as nothing more than an attempt to lay a foundation for disowning the tests if they appear to support the COT Cases.”

Point 5.32 on page 91 of the AUSTEL COT Cases Report notes:

"Its omission as far as the initial ‘settlement’ of the original COT Cases were concerned meant that there was continued dissatisfaction with the service provided without any steps being taken to rectify it. This inevitably led to dissatisfaction with the initial ‘settlement’ and to further demands for compensation. To avoid this sort of problem in the future, AUSTEL is, in consultation with Telecom, developing –

• a standard of service against which Telecom’s performance may be effectively measured
• a relevant service quality verification test." (AS 1137)

 

 

 

Legal Professional Privilege

During September 1993, Telstra announced they would not address anymore of Alan's telephone complaints unless he first registered them in writing with their external lawyer, Denise McBurnie, of Freehill Holligdale & Page. Unfortunately, Alan didn’t realise that Telstra thought this process would mean that all technical documents connected to any complaints Alan registered with Ms McBurnie would then, as far as Telstra was concerned, be classified under Legal Professional Privilege (LPP).

10 September 1993: this Telstra FOI document folio N00749 to N00760, from Denise McBurnie of Freehill Hollingdale & Page to Ian Row, Telstra’s Corporate Solicitor, relates to strategies that were about to be used in dealing with the COT Arbitration cases. Folio N00749 is the first page of this strategy (AS 923) noting: 

"Both Freehill’s and Duesbury’s would be happy to assist you should any further presentations to Telecom management be required on any of the matters raised in the issues paper or with regard to any other matters concerning management of “COT” cases and customer complaints."

This document is important because Ms McBurnie names Duesbury's as assisting Freehill's in this matter, and Duesbury's was also involved with the employment of private investigators (paid by Telstra) in relation to Graham Schorer, and possibly other COT claimants.

It is clear from folio N00750 that Ms McBurnie has singled out four of the COT Arbitration Cases businesses: Golden Messenger, Tivoli Theatre Restaurant, Japanese Spare Parts and the Cape Bridgewater Holiday Camp, in which Legal Professional Privilege (LPP) was to be used to conceal documents from those four cases (AS 923), as they state these claimants:

“…high level of understanding (acquired by experience) with FOI procedures and the procedures involved in accessing Telecom documentary information.”

appeared to be perhaps threaten their misleading ways.

 In June 2000, renowned Legal Professional Privilege expert, Associate Professor Suzanne McNicoll, provided the COT claimants (AS 924) with the following legal opinion regarding the Freehill's ‘COT Case Strategy’ i.e.

"There is also some potential prima facie evidence of (4) i.e. knowingly making false or spurious claims to privilege. For example, there is potential structure set up for the possible abuse of the doctrine of legal professional privilege in the faxed document entitled “COT” Case Strategy, marked “Confidential” dated 10 September 1993 from Ms Denise McBurnie of Freehill Hollingdale and Page, Melbourne Office to Mr Ian Row, Corporate Solicitor, Telecom Australia.”

Telstra FOI document folio P03022 (AS 925) is an internal email dated 23 September noting:

"In the current climate Telecom needs to be particularly careful with its correspondence to the CoT customers. I have engaged Denise McBurnie from Freehills to participate on an “as required” basis in this matter and it is appropriate that all correspondence from the CoT (and near CoT) customers should be channelled through Denise for either drafting of the reply from Telecom or for the reply direct from Freehills as our agent.”

It goes on to say:

“Would you please ensure that with all customers that are, (or have the potential to become) serious complaints, correspondence is processed through Freehills with initial acknowledgement by the Region."

As already mentioned on page 21, under chapter ‘Short duration and 1800 call problems,’ Telstra already knew of these existing problems, but continued to conceal them and continued to incorrectly charge their customers for calls that were never received.

5^th October 1993: Robin Davey, AUSTEL’s Chairman provides a draft of the agreement to be used in the four COT Arbitration Cases, for Graham Schorer (Golden Messenger), Ann Garms (Tivoli Theatre Restaurant), Maureen Gillan (Japanese Spare Parts) and Alan Smith (Cape Bridgewater Holiday Camp), Fast Track Settlement Proposal to Telstra's Managing Director, Commercial  (AS 927) noting:

"Finally, if the attached letter (Attachment 'D') dated 7 July 1993 from (Telstra's external lawyers) to one of the COT Cases’ solicitors is indicative of the way that (these same lawyers) have approached the COT Cases in the past, I would be more than a little concerned if they were to have a continuing role."

It is important to note that during the first week of January 1994, the COTs advised the TIO, who was also the administrator of both the Fast Track Settlement Proposal (FTSP) and the Fast Track Arbitration Procedure (FTAP), that AUSTEL’s Chairman, Robin Davey, had also assured the COTs that this external legal firm would no longer be involved in their Fast Track Settlement Proposal. An internal Telstra email (FOI folio C02840) from Telstra's executives to various other Telstra executives (AS 928) notes:

"name deleted of the (Australian Financial Review news reporter) is following up on his own yarn NOT with the Davey letter to the minister but with the Davey letter to the CEO raising concerns about our use of (this same external legal firm)"

Later, between January and March 1994, when the COTs again spoke to the TIO concerning that Telstra had now appointed this same external legal firm as their Fast Track Arbitration Procedure (FTAP) defence lawyers, the TIO’s response was that it was up to Telstra who they appointed as their arbitration lawyers, even though I also advised the TIO, in March 1994, that I had been forced to register my phone complaints through this legal firm and I had still not been provided with any of the technical data to support this legal firms assertions that there was nothing wrong with my telephone/fax service when even the TIO Special Counsel had problems sending me faxes.

During and after my arbitration I raised my concerns that the arbitrator had not addressed this same legal firms submission of Telstra witness statements that had only been signed by them and not by those who were actually making the statements. Nothing was transparently done to assist me in this matter other than to send this witness statement back to be signed by the alleged author making the statement.

My 1995/96 arbitration appeal lawyer (Law Partners of Melbourne) was not only staggered to learn about this witness statement issue, but was also staggered to learn that none of the arbitration fault correspondence that had been exchanged between this legal firm, Telstra and myself was ever provided to me as it should have been according to the rules of discovery. In fact, Lawyer Partners of Melbourne suggested that perhaps Telstra had originally appointed this legal firm to be my designated fault complaint managers so that any of that correspondence would form what Telstra believed to be a legal bridge, so that my ongoing telephone fault evidence could be concealed under Legal Professional Privilege (LPP) during my arbitration.

Telstra’s continued use of this legal firm throughout the COT arbitrations and the arbitrator’s refusal, in my case, to look into why Telstra was withholding technical data under LPP, suggested, at the time, that the arbitrator was not properly qualified as he didn’t seem to understand that Telstra could not legally conceal technical information under LPP.

As this story reveals, the arbitrator was, in fact, not a graded arbitrator at all, and was not registered as an arbitrator with the arbitrator’s umbrella organisation, then called the Institute of Arbitrators Australia.  

19^th October 1993: This letter from the very person I had to register my phone faults with to one of Telstra's executives titled Legal Professional Privilege In Confidence FOI folio A06796:  includes the following statements:

"Duesbury & FHP continuing of evaluating (blank) claim - final report to Telecom will be privileged and will not be made available to (blank).

Telecom preparing report for FHP analysing data available on (blank) services ie. (CCAS, Leopard, CABS and file notes) – this report will be privileged and will not be made available to (blank)." (AS 930)

In other words, Telstra FOI documents (folio R00524 and A06796) confirm Telstra were already hiding technical information from the COT claimants under Legal Professional Privilege. It is important to note here that when Telstra had directed me to register my 'ongoing' telephone faults, in writing, to this same lady lawyer from this external legal firm  in order to have those issues addressed, I not only found this not was time consuming, but also very frustrating, because by the time I received a response to one complaint I had already had further complaints to register.

29^th October 1993: this Telstra FOI document concerning Telstra's testing my fax line in Cape Bridgewater in conjunction with Graham Schorer's fax machine in Melbourne folio K01489 Exhibit (AS 767-A) notes

"During testing the Mitsubishi fax machine, some alarming patterns of behaviour were noted, these affecting both transmission and reception. Even on calls that were not tampered with the fax machine displayed signs of locking up and behaving in a manner not in accordance with the relevant CCITT Group 3 fax rules."

The hand-written note in the bottom right corner of Exhibit AS 767-B, which states: “Stored in Fax Stream?” suggests that faxes intercepted via Telstra’s testing process are stored in Telstra's Fax Stream service centre so the document can be read, at any time, by anyone with access to Telstra’s fax stream centre. The Scandrett & Associates report proves that numerous COT arbitration documentation was definitely intercepted, including faxes travelling to and from Parliament House, the Commonwealth Ombudsman’s Office (COO) and the COTs and, in my case at least, that this interception continued for seven years after my arbitration was over. This means, in turn, that Telstra had free access to in-confidence documents that the claimants believed they were sending ONLY to their accountants, lawyers and/or technical advisors (as well as Parliament House and the Commonwealth Ombudsman Office), and those documents could well have included information that the claimants might not have wanted disclosed to the defendants.

 

 

C& L Report

Towards the end of 1993 Telstra commissioned an international audit company, to report on Telstra’s fault handling procedures, particularly in relation to complaints like those raised by the members of COT. In a letter dated 17 September 1993 (AS 1010) to AUSTEL’s Chairman, Mr Robin Davey, the then-Shadow Minister for Communications, Senator Richard Alston, wrote:

"Finally I note that Telecom propose to engage one of the "Big Five" accounting firms to audit its handling of the COT cases with Austel merely having unspecified access to the consultants and its output.

If such an audit is to have any legitimacy it is essential that it should be commissioned and paid for by Austel. To allow one party to litigation to select and pay - undoubtedly generously - for the judge would not be tolerated in any judicial proceedings. It should not be tolerated here."

Regardless of the concerns expressed by various government ministers, including Senator Alston, it was Telstra alone who paid for this audit and for Bell Canada International Inc. to carry out the investigative work. Then, in the case of the COT arbitrations, Telstra paid for the arbitrator and the arbitrator’s helpers who were then also exonerated from all liability for anything untoward that they might be involved in.

Senator Alston’s objections to Telstra being allowed to pay for both the audit of Telstra's fault managing system and the Bell Canada International Inc (BCI) audit of the main COT cases complaint, and the telephone exchanges that the COT businesses were connected to, was particularly alarming because, as is now known, both those reports were not only orchestrated by Telstra, but were orchestrated by AUSTEL too, as their April 1994 ‘COT Cases Report’ clearly shows. (Note: these Bell Canada International Inc (BCI) tests are discussed in our absentjustice.com Reserve Evidence File No/6.

This is even more alarming because, although all this auditing was carried out on behalf of the Government Regulator, it appears as though Telstra was still able to manipulate the results that went adversely against them, whether those findings were reported by the auditing firm or BCI, and they accomplished this with even more manipulation, this time by using various exemptions in the FOI Act, such as Legal Professional Privilege (LPP) or adverse findings against Telstra marked as (ADV), as (AS 1015, 1016, 1017, 1018 and AS 1019) so clearly show.

A further alarming aspect of Telstra’s interference in the official auditing process is that any adverse findings could also be deliberately omitted from the two formal reports that AUSTEL and Telstra had already agreed would be provided to the COT arbitrator. This meant that the arbitrator would never know all of the truth surrounding what either the two international firms found wrong with Telstra’s management of their fault handling process and/or their overall telecommunications network.

Since I have shown that both of the two commissioned international reports were flawed and exhibits (AS 1015, 1016, 1017, 1018 and AS 1019) show that not all the adverse findings against Telstra have been revealed – even now – how then can the present Coalition Government condone the behaviour that led to the arbitrator not only accepting two flawed reports as arbitration evidence, but then basing his final decisions, in part at least, on those flawed reports? 

How can the results of the COT arbitrations still stand, as they have for the last twenty-two years, when it has been obvious for some time that these were not the only findings against Telstra that Telstra has kept hidden, and that some of those hidden findings included technical documents that were falsified so the arbitrator would not uncover the truth about Telstra’s failing telecommunications network? How could Telstra get away with manipulating the law as it stood back then, in 1994, without even being asked to explain what really went on prior, during and after the COT arbitrations?

It is important to note that when C & L investigator, has agreed that this is a new matter” does not match the information in (AS 767-A, 768, 769, 770, 771, and AS 772-A) which confirm that local (Portland) Telstra technicians were aware of the major problems associated with the faxing capacity issue, at least as far back as October 1993. Mr Campbell’s correspondence was, therefore, clearly misleading fellow Telstra employees and, possibly, Warwick Smith also, about the ongoing problems. This adds even further weight to both Graham and Alan’s claims that there needs to be a transparent investigation into the TIO-administered COT arbitrations.

It is amazing enough to find that Grant Campbell was seconded from the employment of the defendants during the COT arbitrations, but it is even more amazing to learn that, while he was wearing his TIO hat, he was also working on 1800 problem claims lodged by another COT claimant but, in this instance, he was wearing his Telstra hat!  These two different ‘hats’ must lead directly to an understanding that no-one may ever know how many claim documents the COT Arbitration cases sent to the TIO’s office while Grant Campbell was wearing his TIO hat but being paid by Telstra.

We may never uncover how many arbitration procedural documents never made it to the viewing room that the TIO-appointed, secretly-absolved-from-risk, arbitration Resource Unit appeared to have access to.

We have raised the issue of this Grant Campbell fax capacity issue here because Dr Hughes’ technical Resource Unit never provided Alan with the results of their investigations into the lost faxes, even though it cost Alan close to $200,000.00 to participate in the arbitration process; and even though clause 11 in the official Arbitration Agreement notes: 'The Arbitrator's reasons will be set out in full in writing and referred to in the Arbitrators award, the lost fax issues were not referred to: 'in full in writing' in the Arbitrators award.

Like Grant Campbell, Warwick Smith and his appointed Arbitration Technical Resource Unit they appear to have misunderstood the significance of the 008/1800 problem, because they failed to alert Dr Hughes that the 008/1800 service Alan used was actually routed through his main service line, 055 267 267, the line that one of the two faulty EXICOM phones was connected to – the phone that was prone to lock-up after each terminated call. In other words, when the Resource Unit advised John Pinnock (TIO) on 15 November 1995, and Dr Hughes on 2 August 1996 (AS 220), that Alan’s 008/1800 billing claims were not addressed, they were also admitting to not investigating or addressing Alan’s main service line 055 267 267.

Was there a more sinister motive behind the decision to ignore Alan’s billing claims, the same 008/1800 billing faults that Telstra’s Grant Campbell was investigating while working with the TIO (on secondment from Telstra) and then working on again, later, after he went back to Telstra to work alongside TIO Council Member Ted Benjamin?

Did Ted Benjamin's relationship with Telstra and the TIO Council have anything to do with his later relationship with Grant Campbell? There appears to be NO doubt that this particular issue – of Grant Campbell addressing 008/1800 problems on behalf of the TIO and then on behalf of Telstra, all during Alan’s arbitration – created a massive conflict of interest.

Could it be that, when Alan told Mr Campbell that he needed all the documents related to his earlier settlement, from before December 1992, so he could show how undemocratic this 1992 settlement process was, that Mr Campbell then passed that information straight on to Telstra, thereby effectively alerting Telstra to which documents they could ‘lose’ because it was relevant to Alan’s case?  It is also interesting to connect this issue to a letter written on 11 November 1994, to Telstra from the Commonwealth Ombudsman’s Office, asking why the earlier settlement material that Alan had requested under FOI had still not been supplied to him.

 

 

Telstra's 'Fast Track' Proposed Rules of Arbitration

A forensic assessment of this 10 January 1994 document will show that, except for a few minor cosmetic changes, the agreement that the four COT Arbitration cases signed on the 21 April 1994, believing (as did various government ministers) that it had been drafted by the President of the Institute of Arbitrators, had in fact been drafted by the defendants lawyers.

The arbitration agreement Alan and three other claimants signed included a confidentiality clause covering events that occurred DURING the arbitrations process, but did NOT cover events that occurred before the arbitration had commenced. Even before the parties signed the agreement, and without the claimants’ knowledge or consent, a meeting was held on 22 March 1994, and was attended by Steve Black (Telstra's arbitration liaison officer), David Krasnostein (Telstra’s General Counsel), Simon Chalmers (Telstra's arbitration lawyer), Peter Bartlett (TIO Special Counsel), Dr Hughes (Arbitrator), Warwick Smith (TIO) and the TIO’s secretary, Jenny Henright. This meeting discussed important issues concerning the conduct of Alan's arbitrations without the presence of any COT claimant or their representatives therefore the claimants given the opportunity to comment on the proposals raised.

Had Graham Schorer (COT spokesperson) and Alan been represented in the same way that Telstra was represented at that meeting, the resulting alterations to two of the clauses in the arbitration agreement would certainly never have been agreed to. Therefore, being unaware of these two changes, the claimants were in effect blindsided by this clandestine behaviour and signed the agreement. Had they known the agreement had been changed they would not have signed.

It could easily be argued that Telstra acted outside the law during Alan's arbitration when they submitted false evidence, including manufactured test results, under oath. But the most concerning conduct is that of the TIO and the arbitrator before he signed the FTAP confidentiality clause, which was attached to the Arbitration Agreement.

How can the TIO office, which administered the COT arbitrations, continue to use the confidentiality agreement as a cloak to conceal the undemocratic way in which the COT four claimants were treated when all this happened before they signed the confidentiality agreement?

By January 1994, it appeared that not only was Telstra treating the COT Cases with sheer contempt, but they were doing this in full view of the Senate.  After all, with the TIO now having assured Telstra's Chris VonWiller that he would keep Telstra informed of any government and/or Senate movement on the COT Case issues, it might be said that Telstra had already won the battle even before the COT Cases were forced into arbitration without the necessary documents they needed to support their claims.

The COT members were beginning to believe that no single person, and no organisation anywhere in Australia, had the courage to instigate a Judicial Inquiry into the way Telstra continued to thumb their noses at the Government endorsed Fast Track Settlement Proposal that Warwick Smith had agreed to administer.

The COT members learnt from the TIO that the commercial ‘assessor’ had drawn up a set of rules within which to work on their cases. Then, to add insult to injury yet again, they learned that Telstra had badgered him into converting the commercial assessment into an ‘arbitration’ procedure. COT members registered their disagreement with the TIO, who had been appointed as an independent administrator of the Fast Track Settlement Process. The COT members made it very clear to the TIO that they were already involved in a signed commercial process, and they saw no clear reason for changing that situation. They believed an arbitration process would certainly never be ‘fast-tracked’. It was bound to become legalistic and drawn out, and they knew none of them had the finances to go up against Telstra’s high-powered legal team in such a process. They believed the whole idea of arbitration had been raised simply to suit Telstra’s agenda.