Chapter Four - Before the arbitrations actually began
Read about the corruption within the government bureaucracy that plagued the COT arbitrations. Learn who committed these horrendous crimes and where they sit in Australia’s Establishment and the legal system that allowed these injustices to occur.
Vileness, villainousness
Before arbitrations began, the arbitrator was provided with a watered‑down version of , now entitled The COT Cases – AUSTEL’s Findings and Recommendations. This version was officially submitted to all parties involved in the first four arbitrations, as well as various government ministers.
AUSTEL’s Findings and Recommendations regarding the COT cases look respectable to the casual observer, but it is now clear that much of the information AUSTEL obtained from Telstra for its public report was, at best, inaccurate and, at worst, fabricated — and AUSTEL knew this when it submitted the report into the public domain. , together with exhibits and , shows AUSTEL knew it was not reporting all of the facts concerning the ongoing problems being experienced by at least two COT cases.
Yet, even in this watered‑down report, AUSTEL insisted that the COT cases’ telephone problems had to be fixed before an assessor or arbitrator could bring down formal findings.
Those findings and recommendations, dated 13 April 1993, state at point 5.78:
“An agreed standard of service, being developed in consultation with AUSTEL to be applied to any case subject to settlement, is essential.”
It is clear from this 258‑page report, and from other similar statements made by AUSTEL, that no finding by the arbitrator could be brought down until Telstra had proved it had fixed all ongoing telephone problems being experienced by those entering settlement and/or arbitration. After all, what was the purpose of an arbitration process if the claimants’ businesses were still affected by the very problems that brought them into the process in the first place?
Points 5.25, 5.29 and 5.32 in this public report (see ) state:
“Mr Smith was the first of the original COT Cases to reach an initial ‘settlement’ with Telecom. It is understood that he identified the type of faults which his business had experienced. Mr Smith has informed AUSTEL that his major concern and stipulated condition at the time of ‘settlement’ was that his service should operate, and continue to operate, at normal standards.”
“The fifth of the original COT Cases, Mr Schorer, had particular concerns about Telecom’s limited liability and the impact that the limitation was likely to have on any claim he might make for compensation arising from an inadequate telephone service.”
“The fact that faults continued to impact upon the businesses in the period following the settlement shows a weakness in the procedures employed. That is, a standard of service should have been established and signed off by each party. It is a necessary procedure of which all parties are now fully conscious and is dealt with elsewhere in this report. 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.”
In the case of at least six of the Service Verification Tests conducted at the COT cases’ businesses, including mine, no supervised testing of those service lines was carried out by anyone other than the defendants, Telstra. No independent arbitration umpire was present when these tests, later used by Telstra as defence documents, were conducted.
Heinousness and wickedness
What then transpired would have been laughable if the consequences had not been so serious. In my case, DMR Group Australia Pty Ltd was not available during the SVT process conducted on 29 September 1994, and thus, Telstra was allowed to conduct the entire Cape Bridgewater Holiday Camp SVT process without any supervision from the arbitrator. Although DMR Group Australia Pty Ltd was named in the Arbitration Agreement as the independent technical consultants for the first four arbitrations, they never made themselves available throughout the arbitration process.
It was not until five months after Telstra claimed they had carried out the arbitration SVT process at my business premises, on 29 September 1994, hat DMR Group Inc (Canada) was commissioned (on 9 March 1995) as the appointed technical arbitration consultants for the four COT arbitrations. Was this eleven‑month delay in finding a technical consultant deliberately orchestrated, perhaps, so that no independent consultant was present while Telstra fudged their SVT process? Paul Howell of DMR Canada did not fly over from Canada until the second week of April 1995.
PLEASE NOTE: Warwick Smith, the official Administrator for the COT arbitrations, advised the first four COT cases that if they signed for the TIO‑administered arbitration, then the arbitration‑appointed technical consultants, DMR Group Australia Pty Ltd, would ensure that all arbitration technical issues, such as the arbitration Service Verification Tests, would be conducted according to Government communications regulatory requirements. After all, what was the point of a Government‑endorsed arbitration process if those requirements were not met?
How can you have an arbitration process — supposedly an equal footing for both parties- when one of those parties (Telstra) is officially being investigated by the Australian Federal Police for intercepting the claimants’ telephone conversations and arbitration‑related faxes? How could both the arbitrator and the administrator allow the defendant in those crimes to carry out its own arbitration service verification tests while still under AFP investigation?
As shown in my report, , Telstra fabricated their Cape Bridgewater SVT arbitration testing, and the arbitrator accepted that report as factual.
Neither Warwick Smith nor Dr Hughes took into consideration the normal legal rights of the COT cases when they allowed the defendants (Telstra) to conduct their own arbitration testing process without that SVT process being scrutinised by the TIO‑appointed technical consultants.
Now that the Government that endorsed my arbitration is aware that not all of my claim documents reached the arbitrator’s office, either as a direct result of the very poor network or because those documents were illegally intercepted en route, why hasn’t anyone begun to investigate this? Why am I being denied the opportunity to resubmit the claim documents that we can prove were faxed to the arbitrator’s office but were never assessed?
What do Telstra and the Government have to hide if I cannot prove what I am claiming, that numerous arbitration documents of great value to my case were never assessed by the arbitrator, particularly after the April 1994 Government Communications Regulator’s COT Cases public report respectfully notes:
At point 5.68.14:
“The arbitrator will make his determination on reasonable grounds as to the link between the claim and alleged faults, drawing reasonable inferences from the material presented by the claimants and Telecom.”
And again at point 5.68.15:
“The arbitrator will set out his reasons in full.”
In my case, how could the arbitrator make a determination based “on reasonable grounds” from the material I presented when that material never arrived, even though my fax account shows it was sent (see )?
Two weeks after I signed my arbitration agreement, I received a letter dated 6 May 1994 from Peter Bartlett, the TIO‑appointed arbitration special counsel. Mr Bartlett wrote:
“I certainly told you that nothing in the Procedure would prevent you from including in your claim ‘consequential losses, flow‑on losses, loss of health etc.’ However, I must emphasise that Dr Hughes can only make a decision on the material before him.” (See )
This is conclusive proof, from the official arbitration legal counsel, that Dr Hughes could only make a decision on the material before him.
Neither the SVT nor the billing documents reached the arbitrator. None of these letters actually reached the arbitrator.
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