Mr Bates vs The Post Office-Absent Justice

Mr. Bates vs the Post Office,

Chapter 1

Delve further into the alarming and often disturbing realms of horrendous crimes, duplicitous criminals, corrupt politicians, and the lawyers who maintain a tight grip on the legal profession in Australia. Descriptors such as shameful, hideous, and treacherous vividly encapsulate these evil wrongdoers' nature and the impact of their actions.

Unravel the complex web of foreign bribery and insidious corrupt practices, including manipulating arbitration processes through bribed witnesses who shield the truth from the public eye. This narrative encompasses egregious acts of kleptocracy, deceitful foreign corruption programs and the troubling involvement of international consultants whose fraudulent reporting has enabled the unjust privatization of government assets—assets that were ill-suited for sale in the first place.

Click here to watch Mr Bates vs the Post Office

The AFP transcripts of 10 February 1994, Pages 37, 38 and 39, AFP evidence file GS 18 show Ex-AUSTEL's General Manager of Consumer Affairs telling Superintendent Jeffrey Penrose and Detective Sergeant Cochrane, of the AFP, of the AFP that it was best they ask me what was in the briefcase that was inadvertently left at my promises. This was the information that no one considered at the time to be of value, and it was only after the AFP viewed it, reading it in conjunction with FOI documents released to me months later, that the combination showed Telstra employees were using their surveillance collected information in profile building against its customers.

Revealing the truth hidden in the government's archives

No Fault Found

If you happen to live in an area with spotty phone reception—or if you’re around my age of 81—you might have some good reasons to feel frustrated with your phone bill. You might have also found yourself in a situation where you were sitting right next to your phone at a particular time, yet your friend insists they called and you didn’t pick up. It can be puzzling, correct? You might have even heard people mention how surprised they are at how much time you spend on the phone, especially when you know it hasn’t rung for days, and you haven’t made many outgoing calls. Now that you think about it, it’s possible some of your potential clients who expressed frustration about being unable to reach you were simply disappointed. They may have moved on to other businesses that could answer their calls, probably not realizing your phone hadn’t rung in a week.

If you have ever experienced only one of these situations, then you will understand why I sometimes feel I have lived through a nightmare — I have experienced all these problems and more for more than ten years.  Unfortunately, I knew nothing of what was ahead of me when I bought my phone-dependent business at Cape Bridgewater in rural Australia.  It wasn’t until much later that I discovered that the company was connected to an antiquated phone exchange installed more than 30 years before and explicitly designed for what the Australian telecommunications carrier (Telstra) designated as ‘low-call-rate areas’. This ancient telephone exchange was certainly never intended to handle the number of calls that were already being made by residents and h

Holidaymakers in late 1987, when I arrived to take over the business, nor was it ever intended to handle the increased number of calls that occurred in this holiday village at holiday time.

This could easily be your story: I know because this nightmare was mine . The saga began in late 1987 when my wife Faye and I bought a holiday camp accommodation business perched high above Cape Bridgewater, near Portland on the southwest coast of country Victoria. The Cape Bridgewater Holiday Camp had been run as a school camp, and we intended to turn it into a venue for social clubs, family groups, and schools.

The holiday camp (my business) heavily relied on landline phones as the only means of communication except for passing trade. When we first fell in love with the place, we overlooked the outdated telephone system. In those days, there was no mobile coverage, and business was not conducted through the Internet or email. The camp was connected to a roadside switching facility, which was then routed to the central telephone exchange in Portland, 20 kilometres away. This facility, installed over 30 years ago, was designed for low-call-rate areas and had only eight lines to serve 66 families, totalling 132 adults and children.

If four callers were trying to connect to or from Cape Bridgewater, there were only four available lines for the remaining 128 adults and their children to make or receive calls. During peak times—such as weekends and holidays—when more visitors flocked to the seaside resort, the demand for calls increased significantly. This often resulted in the lines becoming jammed and non-responsive

After three and a half years of utilizing outdated equipment, Telstra ultimately implemented a new system. However, they erroneously failed to program this system through the central telephone exchange in Portland for an additional twenty months. Such workmanship is considered unacceptable. This issue is further illustrated by a government document dated March 1994 detailing ongoing challenges from points 2 to 212, refer to AUSTEL’s Adverse Findings. Despite these persistent problems, AUSTEL, the regulatory authority, did not compel Telstra to address the deficiencies. Consequently, it became the arbitrator's responsibility to ensure that Telstra rectified the telephone issues impacting my business and other COT cases. Regrettably, this rectification did not occur, and evidence indicates that the problems deteriorated further.

The issue was brought to the attention of AUSTEL (now ACMA), the government communications authority. On April 13, 1993, AUSTEL provided a report to the government stating that the exchange was an ARK exchange, meaning it should have been staffed. This revealed that not only have I been battling the telephone company for thirty years, but I have also been fighting AUSTEL/ACMA, which was willing to mislead the government about the state of the telephone exchange.

 This situation highlights the significant issues within Australia's copper network, as documented on absentjustice.com and in sources like Delimiter’s "Worst of the worst: Photos of Australia’s copper network | Delimiter. The ongoing telephone problems we face in 2025 are inexcusable.

In blissful ignorance, we sold our home in Melbourne, and I used my early retirement benefits to raise money for what we expected to be a new and exciting venture.

 

I knew this was a business I could run successfully

I knew this was a business I could run successfully. From the age of 15, when I went to sea as a steward on English passenger/cargo ships, I worked in areas that prepared me for the hospitality trade. In 1963, I jumped ship in Melbourne to work as an assistant chef in one elite hotel after another. Two years later, I joined the Australian Merchant Navy. By 1975, I had been a chef on many Australian and overseas cargo ships and had returned to land.

Faye and I had married in Melbourne in 1969, and I worked freelance in the catering industry and on tugboats while I studied for a hotel/motel management diploma. I had already managed one hotel/motel and pulled it out of receivership to be released. By 1987, at the age of 44, I had enough experience behind me to be confident that I had the skills and knowledge to turn a simple school camp into a thriving, multifaceted concern.

I visited almost 150 schools and shires to extol the virtues of the Camp, and in February 1988, I had some 2000 colour brochures printed and distributed. Then, we waited for the phone to ring with inquiries, in vain. Due to this marketing exercise, there was not even a modest 1% inquiry rate.

By April, we had begun to realise that the problem might lie with the telephone service. People asked why we never answered our phones or suggested we install an answering machine to take calls when we were away from the office. We had an answering machine, but even after installing a new one, the complaints continued, coupled with comments about long periods when the phone gave the engaged signal.

As time passed, the call 'drop-outs' added to our problems, especially when the line went dead in the middle of a call. We lost that contact if the caller hadn't yet given us contact information and didn't ring back. Between 19 April 1988 and 10 January 1989, Telstra logged nine separate complaints from me about the phone service, plus several letters of complaint. A typical response to my 1100 call (the number you called when there was a problem) was a promise to check the line. A technician was sent out on rare occasions, whose response was inevitable: 'No fault found' while my problems continued unabated.

Eventually, we discovered that the business's previous owner had endured the same problems and had complained equally unsuccessfully about them. In 1988, when I began marshalling my case against Telstra, I obtained several documents through the Freedom of Information Act (FOI). According to a document headed 'Telstra Confidential: Difficult Network Faults — PCM Multiplex Report', with a sub-heading '5.5 Portland — Cape Bridgewater Holiday Camp', Telstra was aware of the faults in early 1987.

Harry, our next-door neighbour, sympathised; his daughter, ringing from Colac, often complained about how difficult it was to get through to her parents. Fred, another local and once the owner of Tom the Cheap grocery chain, suffered from similar problems to ours for many years. He commiserated, saying, 'But what can you expect from Telstra when we're in the bush?' I expected better than this, and indeed, we were promised better.

We encouraged people to write, but the telephone culture was endemic. People wanted an immediate response. As bookings dwindled instead of increasing, I felt I hadn't adequately researched the pros and cons before moving to Cape Bridgewater.  I was beginning to question what I had done, asking Faye to agree to sell the family home so that I could satisfy my ambition to run my own business. It was not the fun I had anticipated. I was operating in constant anger, a very unamusing Basil Fawlty.

We went touring South Australia to sell the concept of our Camp through the Wimmera area, but responses were few. Was it the phone to blame? How could we be sure? The uncertainty itself added to the stress.

Attacking one's character 

It was our fault, not Telstra's  

Sometimes, the culprit was blindingly obvious. I was soon labelled a vexatious litigant, and my claims frivolous. On a shopping expedition to Portland, 20 kilometres away, I discovered I had left the meat order list behind. I phoned home from a public phone box, only to get a recorded message telling me the number was not connected! I phoned again to hear the same message. Telstra's fault centre said they would look into the matter, so I went about the rest of the shopping, leaving the meat order to last. Finally, I phoned the Camp again, and the phone was engaged this time. I decided to buy what I could remember from the list and hope for the best; however, I was not surprised when I got home to learn the phone had not rung once while I had been out.

Anyone who uses a telephone has at some time reached a recorded voice announcement (known within the industry as RVA): 'The number you have called is not connected or has been changed. Please check the number before calling again. You have not been charged for this call.' This incorrect message was an RVA electronic fault most frequently reached when trying to ring the Camp. While Telstra never acknowledged what I later discovered among 1994 FOI documents, an internal Telstra memo stated: -

'This message tends to give the caller the impression that the business they are calling has ceased trading, and they should try another trader.' AS-CAV Exhibit 1 to 47

Another Telstra document referred to the need for

a very basic review of all our RVA messages and how they are applied … I am sure when we start to scratch around, we will find a host of network circumstances where inappropriate RVAs are going to line. AS6 file AS-CAV Exhibit 1 to 47

For a newly established business like ours, this was a major disaster. Still, despite the memo's acknowledgement that such serious faults existed, Telstra never admitted the existence of a fault in those first years. And with my continued complaints, I was treated increasingly as a nuisance caller. This was rural Australia, and I was supposed to put up with a poor phone service — not that anyone in Telstra was admitting that it was poor service. In every case, 'No fault found' was the finding by technicians and linesmen.

The frustration was immense, coupled with uncertainty. Were our problems no more than general poor rural service compounded by the congestion on too few lines going into an antiquated exchange? At that stage, the Camp was the only accommodation business in Cape Bridgewater. We relied on the phone more than most people in the area. But if there was some specific fault, why weren't the technicians finding it?

The business was in trouble, and so were we. By mid-1989 we were reduced to selling some shares to cover operating costs. Here we were, a mere 15 months after taking over the business, and we were beginning to sell off our assets instead of reducing the mortgage. I felt like a total failure.  Neither of us was able to lift the other's spirits.

I decided to do another round of marketing in the city. I would give it all I had. We both went. Was it masochism that made me ring the Camp answering machine via its remote access facility to check for any messages so I could respond promptly? Whatever it was, all I could get was the recorded message: '

The number you are calling is not connected or has been changed. Please check the number before calling again. You have not been charged for this call.' 

On the way home, just outside Geelong, we stopped at a phone box, and I tried again. Now, the line was engaged. Perhaps somebody was leaving a message, I thought. Ever hopeful.

There were no messages on the answering machine. And nothing to be gained by asking why I had received an engaged signal. How many calls had we lost during the days that we were away? How many prospective clients had given up trying to get through because a recorded message told them the phone was not connected? Anger and frustration were very close to the surface.

Near the end of October 1989, our twenty-year marriage ended. I had already been taking prescribed drugs for stress; that afternoon, I added a quantity of Scotch and hunkered down in one of the cabins. Faye, understandably, was seriously concerned and called the local police, who broke into the cabin to 'save' me from me. They took me to a special hospital, and I am forever grateful to the doctors who confirmed that I wasn't going 'nuts' and who sent me home the following day.

When I took refuge in the cabin on the afternoon of 26 October 1989, only to find my refuge attacked by a Police rescue team, I was transported straight back to China in 1967.  After some heavy discussions with my wife and my ‘saviours’ who, in my confused state, seemed more like the Red Guard soldiers than anything else, I was taken to hospital — in a straight jacket.

I will be forever grateful to the doctors who confirmed that I wasn’t going ‘nuts’ and who allowed me to return to the camp the following day, accompanied by my mate’s wife, Margaret.  I will also be forever grateful to Jack for sending Margaret to ‘bail me out’ so to speak.  The fun, however, had just begun.

At this point, I need to fill in some details regarding an incident that occurred back in 1967 during the Cultural Revolution in China.  At that time, many young Australians were supporting the American fight against Communism in Vietnam, and this young man was sailing with the Merchant Marines out of Australia.  We were headed to China from Port Albany in Western Australia with a cargo of wheat, although the Australian Labor Party was against our ship leaving. A brief explanation of this China issue is highlighted in Chapter 7- Vietnam - Vietcong.

While I was in this particular hospital in Warnambool (southwest Victoria), my friends Margaret and Jack from Melbourne, who were well aware of what had happened to me in China, decided that Margaret would come to Warnambool and take me home for the holiday camp which was 110 kilometres away  'bail me out'. The fun, however, had just begun for me and Margaret. 

Margaret and I arrived back at the Camp and were confronted with a disaster area. Faye had left the night before, following advice from various people that she needed to be in a 'safe house'. Doors had been left unlocked, meat from the deep freeze was left on benches, and various items had mysteriously vanished. According to the Camp diary, 70 students from Monivae Catholic College in Hamilton were due to arrive in two days and booked in for five days and four nights. Without Margaret's assistance, I would have been wiped out.

Mourning the end of my marriage, the very thought of shopping was a mountain I didn't want to climb. What to feed 70 students plus staff? By the time I got my head around what to order, it was Sunday evening, and the Monivae group were due the following day. Then the hot water service broke down!

The staff were not happy about the cold showers! Even so, Monivae College returned two and sometimes three times a year for the next five years. Their support throughout this awful period helped me keep trading.

And, of course, Margaret's support. She carried so much through that first week. Aware that I was holding on by my fingernails, she suggested Brother Greg, one of the Monivae teachers, come to the house to talk to me. It was an inspired suggestion, and we talked well into the night. Margaret, too, worked through many things, from early childhood experiences to the end of twenty years of marriage.

I began to keep a log

In the weeks that followed, my phone problems continued unabated. I began keeping a log of phone faults, recording all complaints I received in an exercise book, along with names and contact details for each complaint and a note regarding the effect these failed calls had on the business and me.

In February 1994, the Australian Federal Police (AFP) reached out to me with urgent news: I needed to meticulously separate the phone complaints lodged by my single club patrons, dating back to 1990, from those made by schools and other organizations throughout the 1990s that had also reported dissatisfaction with my service. This distinction was critical because the AFP had uncovered that Telstra—Australia's major telecommunications company—had been systematically documenting my single club members' names, addresses, and phone numbers over an extended period. These records, carefully maintained in Telstra's internal files, had become the focus of the ongoing investigation.

Under the AFP's directive, I was tasked with a daunting job: translating my detailed diary entries from my desktop booking exercise books into neatly organized hard-copy diaries. These diaries were to remain strictly confidential and not be shared with Telstra under any circumstances. While I battled through this meticulous rewrite, the AFP simultaneously delved into alarming reports of phone and fax hacking that plagued my operations.

Regrettably, a few months later, a serious oversight occurred. The hard copy diaries, which my arbitration claim advisors had promised to safeguard away from the holiday camp during the AFP's thirteen-month investigation, were inadvertently sent to Telstra by my claim advisors.

A shocking tale unfolds throughout this narrative after Telstra acquires this pivotal evidence. It may astonish readers to learn that a government-owned corporation could engage in such unethical practices against the COT Cases, yet, remarkably, no individuals have been held accountable for these unlawful actions.

One day, the phone extension in the kiosk died. The coin-operated gold phone in the dining room, which was on a separate line, had a normal dial tone, so I dialled my office number, only to hear the dreaded:

'The number you have called is not connected or has been changed. Please check the number before calling again. You have not been charged for this call.'

I was charged for the call because the phone did not return my coins! Five minutes later, I tried again. This time, the office phone appeared to be engaged (it wasn't), and the gold phone happily regurgitated my coins.

I used this testing routine frequently over the next months and registered every fault I found with Telstra. The situation was beginning to tell on me. Why was this still happening after so many complaints? Could Telstra really be this incompetent? Or was there something worse going on? Had I made too much of a nuisance of myself? But that was ridiculous. Under the circumstances, I had behaved impeccably politely … when in fact, I had fantasies of sheer violence at times.

Now I was no longer one half of a working husband and wife team, and I started 1990 digging into my pitifully low financial reserves to pay staff or risk losing everything. I was suffering what is commonly known in the world of finance as a 'consequential resultant loss' — Faye was no longer contributing her unpaid labour. I now had to pay her a yearly dividend on her financial investment in the business.

The future looked grim. Telstra did not attempt to remedy the faults or at least no attempt that made any difference. The constant refrain of 'No fault found' was wearing very thin. I found it hard not to dwell on how many prospective customers might be lost because they couldn't reach me by phone. Nor was it long before the legal vultures were circling. I hadn't met my financial agreement with Faye, and her solicitor was demanding money. I was having trouble meeting my own legal costs, let alone finding any extra. My son's school fees were overdue, and to pay some of the mounting debts, I sold the 22-seater school bus I had originally used to ferry customers around and purchased a small utility in its place.

On the positive side, I had met a woman called Karen, who lived in Warrnambool. Our relationship developed to become quite serious. When Karen knew I was about to wind up my business because I couldn't raise funds to make any more payments to Faye, she put her house up as security for a loan, thereby giving me two years of breathing space. She believed in me, and she believed in the capacity of the Camp to succeed. She wanted to be a partner in it. This was early in 1991.

Things were starting to look up, especially when I discovered that a new exchange was to be installed later in the year at Cape Bridgewater. I was hoping this would alleviate all the problems of congested lines. It was just a question of time. Karen moved in with me, and we worked together with new energy to pull the business out of the doldrums.

In August that year came another joy when I got the first confirmation from someone within Telstra that they knew my phone problems were real. I felt such a relief that the faults were, at last, being acknowledged, and I asked for my new friend's name. I was so happy; I didn't even really register any perturbation when all he could tell me was that he worked at the fault centre in Hamilton.

According to Telstra's own file note:

Alan Smith rang 15/8/91 re service 267 267. Incoming callers are receiving engaged signal when it's not engaged …

This has been a continuing problem and he is losing a lot of business.

I said it appears from the fault history that the problem may be in the exchange and that the next RCM exchange 21/8 would solve these problems but that I would check this out with the techs.

I also said we would have a look at the service now to try and get it working correctly until cutover. AS4 file AS-CAV Exhibit 1 to 47.

At last, someone in Telstra had given me something to hang on to. When Karen sold her house, a part of the proceeds went towards paying my legal fees and my debt to Faye. I paid Faye out, and Karen's name was now officially on the title to the business. We counted the days to the installation of the new exchange.

But the triumph of a new exchange when it came at the end of August 1991 was the briefest of victories. It made not the slightest difference. The telephone problems continued just as before. However, now exacerbated by the dreadful disappointment that the war wasn't over at all. Increasingly, people reported complaints of recorded voice announcements, and I continued to complain to Telstra about faults, which seemed to me to be getting worse, not better. I asked technicians if a new exchange didn't correct the problems, then where could the faults lie? Their response was unbelievable: 'No fault found.' They simply refused to engage with my question. I cursed the fact that I had no contact details for the one person who had acknowledged that there were faults. I did not see the file note he wrote until 1995.

New bookings continued to be rare. The Camp was getting in need of painting and upgrading. The business looked sad and bedraggled, so people who passed by were not interested in stopping. And when we did have a booking, cash flow was a problem, making it tricky to put food on the table. We somehow always managed, but it was very stressful. Karen was starting to see her investment going down the drain, and the strain on her came to a head while we were in the middle of organising a charity camp for underprivileged children.

Despite the financial precariousness of the enterprise, I had, from the start, sponsored the stays of underprivileged groups at the Camp. It was no loss to me, really: sponsored food was provided through the generosity of a number of commercial food outlets, and it cost me only a small amount in electricity and gas.

In May 1992, we held a charity week for kids from Ballarat and South-West Victoria, organised largely by Sister Maureen Burke, IBVM, Principal of Loreto College in Ballarat. Arrangements regarding food, transport, and any special needs the children might have had to be handled over the phone, and of course, Sister Burke had enormous problems making phone contact. The Calls were either ringing out, or she was getting a deadline — no sound at all. Finally, after trying in vain all through one week, she decided to drive the 3½ hours to make the final arrangements.

Testimonials

Between April 1990 and when I sold the holiday camp in December 2001,  I continued to sponsor underprivileged groups to stay there during the weeks, partly (that became years) when the phone problems continued to beset the holiday camp. At least some money was coming into the business. Those wanting a cheap holiday persisted by telephoning repeatedly, regardless of being told the camp was no longer connected to Telstra's network. These groups wanted a holiday, and if they had to drive for hours to make a booking as Loreto College did (see below), then a drive they did.  

The holiday Camp could sleep 90 to 100 people in fourteen cabins. When the charity group organised by Sister Maureen Burke IBVM, the Principal of Loreto College in Ballarat, finally arrived, the whole week became a great success for all concerned; all enjoyed the in-camp activities as well as canoeing and horse riding on the beach. I am sure she would not be offended to know that I think of her as the ‘mother’ of the project.

Arrangements regarding food, transport, and any special needs the children might have had to be handled over the phone, and of course, Sister Burke had enormous problems making phone contact, Calls were either ringing out, or she was getting a deadline or a message that the number she was ringing was not connected to the Telstra network. Sister Burke knew otherwise. On two occasions in 1992, after trying in vain all through one week, she drove the 3½ hours to make the final arrangements for those camps.

Just as she arrived at the Camp, Karen took a phone call from a furious man who wanted information about a singles weekend we were trying to set up. This caller was quite abusive. He couldn't understand why we were advertising a business but never answered the phone. Karen burst into tears. She had reached the end of her tolerance, and nothing I could say was any help. When Sister Burke appeared in the office, I decided absence was the better part of valour and removed myself, leaving the two women together. Much later, Sister Burke came out and told me she thought it probably best for both of us if Karen were to leave Cape Bridgewater. I felt numb. It was all happening again.

But it wasn't the same as it had been with Faye. Karen and I sat and talked. True, we would separate, but I assured her that she would lose nothing because of her generosity and that I would do whatever was necessary to buy her out. We were both relieved at that. Karen rented a house in Portland, and we remained good friends, though, without her day-to-day assistance at the Camp, which had given me space to travel around, I had to drop my promotional tours.

Twelve months later, in March of 1993, Sister Karen Donnellon, also from Loreto College, tried to make contact via the Portland Ericsson telephone exchange to arrange an annual camp.   Sister Donnellon later wrote:

“During a one week period in March of this year I attempted to contact Mr Alan Smith at Bridgewater Camp.  In that time I tried many times to phone through.

Each time I dialled I was met with a line that was blank.  Even after several re-dials there was no response.  I then began to vary the times of calling but it made no difference.” File 231-B → AS-CAV Exhibit 181 to 233

Some years later, I sent Sister Burke an early draft of my manuscript, Absent Justice My Story‘, concerning my valiant attempt to run a telephone-dependent business without a dependent phone service. Sister Burke wrote back,

“Only I know from personal experience that your story is true, otherwise I would find it difficult to believe. I was amazed and impressed with the thorough, detailed work you have done in your efforts to find justice”  File 231-A → AS-CAV Exhibit 181 to 233

Of course, Sister Maureen Burke and Sister Karen Donnellon persisted with their continuing battle to find a way to get a proper telephone connection for the holiday camp, partly because it was a low-cost holiday for all concerned but also because these incredible women were well aware that my business was continuing to exist, albeit ‘by the skin of its teeth, even though Telstra’s automated voice messages kept on telling prospective customers that the business did not exist or the callers simply reached a dreaded silence that appeared to indicate that the number they had called was attached to a ‘dead’ line.  Either way, I lost the business that may have followed if only the callers could have successfully connected to my office via this dreaded Ericsson AXE telephone exchange.

A letter dated 6 April 1993, from Cathy Lindsey, Coordinator of the Haddon & District Community House Ballarat (Victoria) to the Editor of Melbourne’s Herald-Sun newspaper,  read:

“I am writing in reference to your article in last Friday’s Herald-Sun (2nd April 1993) 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.

I 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 053 424 675 and also my home number and received no response – a dead line.

I rang around the end of February (1993) and twice was subjected to a piercing noise similar to a fax. I reported this incident to Telstra who got the same noise when testing.” Evidence File 10 B 

During this same period, 1992 and 1993, Cathy Lindsey, a professional associate of mine, Cathy, signed a Statutory Declaration, dated 20 May 1994, explaining several sinister happenings when she attempted to collect mail on my behalf from the Ballarat Courier Newspaper office (File 22 Exhibit 1 to 47).  This declaration leaves questions unanswered about who collected my mail and how they knew there was mail to be collected from the Ballarat Courier mail office.  On both occasions, when a third person collected this mail, I telephoned Cathy, informing her that the Ballarat Courier had notified me that mail was waiting to be picked up. 

On pages 12 and 13, a transcript from the AFP inquiry into my allegations that Telstra unlawfully intercepted my telephone conversations, the AFP states at Q59 Australian Federal Police Investigation File No/1:-

“And that, I mean that relates directly to the monitoring of your service where, where it would indicate that monitoring was taking place without your consent?” File 23-A Exhibit 1 to 47

I also provided the AFP Telstra documents showing that Telstra was worried about my telephone complaint evidence because if it ever reached an Australian court, I had a 50% chance of proving that Telstra had systemic phone problems in their network. In simple terms, Telstra was operating outside of its license to operate a telephone service, charging its customers for a service not provided.  

21st April 1993:  Telstra internal email FOI folio C04094 from Greg Newbold to numerous Telstra executives and discussing “COT cases latest”, states:-

“Don, thank you for your swift and eloquent reply.  I disagree with raising the issue of the courts.  That carries an implied threat not only to COT cases but to all customers that they’ll end up as lawyer fodder.  Certainly that can be a message to give face to face with customers and to hold in reserve if the complaints remain vexacious .” GS File 75 Exhibit 1 to 88

These Telstra executives forgot that Telstra was a publicly owned corporation. Therefore, those executives were responsible for ensuring the integrity of Telstra's working conditions, something Telstra has never even understood. Bribery and corruption, including misleading and deceptive conduct, destroyed the Australian economy while the powerful bureaucrats attempted to fight this fire with talk of change. This bribery and corruption plagued the COT cases’ government-endorsed arbitrations.

Children's lives could be at risk

Comments made from the Herald Sun newspaper dated 30 August 1993, confirm just how damaging some of these newspaper articles were to my already ailing business with statements like:

“The Royal Children’s Hospital has told a holiday camp operators in Portland that it cannot send chronically ill children there because of Telecom’s poor phone service. The hospital has banned trips after fears that the children’s lives could be at risk in a medical emergency if the telephone service to the Portland camp continued to malfunction”.

The centre’s stand follows letters from schools, community groups, companies and individuals who have complained about the phone service at Portland’s Cape Bridgewater Holiday camp.”

Youths from the Royal Children’s Centre for Adolescent Health, who were suffering from “chronic illnesses”, visited the camp earlier this year.   

Group leader Ms Louise Rolls said in a letter to the camp the faulty phones had endangered lives and the hospital would not return to the camp unless the phone service could be guaranteed” Arbitrator File No/90

After the Melbourne Children's Hospital recorded a near-death experience with me having to rush a sick child with cancer to the Portland Hospital 18 kilometres away from my holiday camp, Telstra finally decided to take my telephone faults seriously. None of the 35 children (all with cancer-related illnesses) had mobile phones, or the six or so nurses and carers. Mobile telephones could not operate successfully in Cape Bridgewater until 2004, eleven years after this event. My coin-operated gold phone was also plagued with phone problems, and it took several tries to ring out of the holiday camp. An ambulance arrived once we could ring through to the Hospital. 

After five years, it took this almost tragic event for Telstra to send someone with real technical experience to my business. Telstra's visit happened on 3 June 1993, six weeks after the Children's Hospital vowed never to revisit my camp until I could prove my camp was telephone fault-free. No hospital where convalescent is a good revenue spinner has ever visited my business, even after I sold it in December 2001. 

It was another fiasco that lasted until August 2009, when not-so-new owners of my business were walked off the holiday camp premises as bankrupts. 

 

Unscrupulous conduct and horrendous crimes committed by corrupt politicians and the lawyers who control the legal profession in Australia. 

 

Chapter 2

Casualties of Telstra

Back to July 1992, when Sister Maureen Burke IBVM, the Principal of Loreto College in Ballarat, visited the holiday camp to discuss the activities I had organised for the Children, Karen, my partner who had joined me three years after my marriage break up to Faye, had heard of a restaurant in Melbourne suffering the same phone problems that were crippling my business. It seemed then that Sister Maureen Burke IBVM was around at some of my very difficult times when trying to run a telephone-dependent business without a reliable phone service.

I felt a great comfort in hearing this and knew I needed to meet the owner. Making phone contact with the restaurant was difficult; eventually, I got through to Sheila Hawkins, proprietor of The Society restaurant in Bourke Street, in the centre of the city. We arranged to meet, and I travelled to Melbourne in early August.

It was so good to talk to someone who experienced similar problems. And there were more of us. Sheila knew of Ann Garms, who ran the Tivoli Theatre Restaurant in Brisbane, who was also having serious telephone problems. Back in Cape Bridgewater, I rang Ann to discover she was coming to Melbourne the following week to register her own complaints with Austel, the Australian Telecommunications Regulator. We arranged to meet together with Sheila. I went into the city again for the meeting, where Ann mentioned another Brisbane business in similar trouble — a car parts company run by Maureen Gillen. Like Ann's business, Maureen's was trunked off the Fortitude Valley exchange. Sheila, meanwhile, had contacted Graham Schorer, who somehow ran the Golden Courier Service out of North Melbourne — despite a very bad phone service.

Finally, our little group gathered together at Sheila's restaurant in Bourke Street, except for Maureen, who couldn't make the journey from Brisbane. It was Sheila who suggested we call ourselves COT — Casualties of Telstra. This was one of her last actions with the group as she withdrew shortly after due to ill-health.

At the top of the list of problems we held in common were those three little words: 'No fault found.' It wasn't just that we all had to put up with ongoing service faults. Telstra's evasion of responsibility in this regard made those faults a nightmare. Telstra had a duty to deliver us service up to a recognised network standard, and by failing to 'find' their faults, they were effectively avoiding carrying out their statutory obligation.

In October 1992, COT had its first official meeting with Telstra at the Ibis Hotel in Melbourne. We were a united and optimistic group of small-business telephone users on our way down the path to justice. We had no idea what a long haul we were in for. Indeed, this first meeting felt eminently successful. Telstra sent three executives; they treated us courteously, and we felt that our claims were being taken seriously. We were seen and treated as a concerned group of small-business people who Telstra had consistently ignored. We asked for Austel (the government regulator) to be the 'honest broker' in our matters, and the executives agreed to this. They took the documentary evidence we had brought, and at the end of the meeting, we were left with a sense that it was all soon to be resolved.

After that initial meeting, there were a number of meetings with Telstra and Austel. Based as he was in the city, Graham Schorer was the COT representative. Under pressure from Austel, Telstra was acknowledging that faults existed, though they still held back from admitting the scale of faults we knew to be true — and indeed, as it turned out, that they too knew it to be true.

Guaranteed to Network standard

Meanwhile, in July 1992, I was obliged to ask Telstra to guarantee that my phone service was up to standard. A bus service wanted such a guarantee (in case of urgent communication needs) before it would contract to bring groups to the Camp. Although I did not see how Telstra could guarantee such a thing based on current performance, I thought a guarantee might have some use as leverage.

Not one but two guarantees eventually arrived (in the event both were too late to secure the contract with the bus company). The first stated that my phone service was indeed 'up to network standard':

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. 1 September 1992 AS12 file AS-CAV Exhibit 1 to 47 

The second stated:

We believe that the quality of your 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. 18 September 1992 AS13 file AS-CAV Exhibit 1 to 47 

Now I need to jump ahead of myself here. Material that I did not have access to at the time now reveals something of what was going on in the telephone exchange while my business was sinking.

In 1994 we COT members all ended up involved in arbitrations with Telstra. According to the rules of arbitration, Telstra had a legal obligation to provide us with relevant documents under the Freedom of Information Act.

You will hear a lot more about this in due course, not least about the unreasonable time it took for FOI document requests to be delivered (often years too late). Enough to say here, that in an FOI release in mid-1994, I received documents referring to the general congestion problem at Cape Bridgewater.

The second paragraph of a document titled 'Subject PORTLAND – CAPE BRIDGEWATER PCM HBER' of 12 July 1991 was of particular interest:

When the 'A' direction of system 2 was initially tested, 11,000 errors per hour were measured. In the 'B' direction, approximately 216 errors per hour were measured, 72 errors per hour is the specified number allowable.

This level of error was, in fact, known at least as early as February 1990, the very time my complaints were being stonewalled. And nor was it acknowledged to me at the time of writing (July 1991). And in the new exchange, the problems continued, as another document, titled 'Portland — Cape Bridgewater — RCM System' showed, referring to the information logged in March 1993, long after Telstra had first reported these massive error rates:

Initial error counter readings, Portland to Cape Bridgewater direction:
	System 1	System 2	System 3
SES	0	0	0
DM	45993	3342	2
ES	65535	65535	87
At this stage we had no idea over what period of time these errors had accumulated. 12 July 1993 (AS30 file AS-CAV Exhibit 1 to 47

The second page of this document explains why they 'had no idea over what period of time these errors had accumulated':

The alarm system on all three RCM systems had not been programmed. This would have prevented any local alarms being extended back to Portland.

They didn't know how long these errors had been accumulating because, from 18 August 1991, when the new exchange (RCM) was installed at Cape Bridgewater, the fault alarm system had been left unconnected. Since this was an unmanned exchange, no one could know when faults occurred — except, of course, us poor, defenceless customers.

Meaning that in September 1992, when Telstra management had written to me stating that the quality of my telephone service was guaranteed as up to network standard, they had failed to realise that this alarm had not been connected. Even the local telephone technicians were oblivious to the call loss due to the unconnected alarm system in the exchange. What kind of investigation into the faults I had reported over several years does this demonstrate? A farcical one. How, for several years, could they fail to notice that the alarm wasn't connected?

A compensation deal

The formation of COT had come not a moment too soon for me. The frustration of struggling with problems that seemed immune to complaints and about which I could do nothing but complain could finally be shared. I had lost faith in my own judgement by this time; I had let down two different partners who had trusted me, and I was now borrowing from friends just to keep the Camp running on a day-to-day basis. Through all of this, of course, the phone faults implacably continued.

The COT group continued to negotiate with Austel and Telstra.  In late 1992, our combined pressure finally produced results: Telstra approached me with a proposal for a compensation payout, which included a confidentiality agreement to the effect that I would not disclose the value of any settlement which resulted from this. I signed this agreement on 11 December 1992, and I have honoured my word not to disclose the amount of the payout without prior approval by Telstra.

That same day, I went to Telstra's city fault centre, where the area general manager and I began a long discussion regarding the extent of my financial losses over the four and a half years since I first complained about the phones. This manager and I were the only people involved in this discussion. I provided her with copies of numerous letters I had received from clients and tradespeople, describing their experiences trying to ring me. I explained how I had calculated the sum of my losses.

On a number of occasions, the manager left me alone to examine the documents she had given me. As she left on the first occasion, she explained that she would close the door so I could read in private and added that I was free to use the telephone if I needed to discuss anything with my advisors. There was a direct outside line available at all times, so I wouldn't need to speak to an operator within the building. I made use of the phone a couple of times to ring Karen and talk over the offer; together, we calculated how much I needed to repay her.

The documents provided by the manager were mostly hand-written and included copies of the so-called 'guarantees' I had received. According to one of the documents. Points 73 to 109 AUSTEL’s Adverse Findings shows there was only a 'single' fault, lasting only three weeks, that triggered the recorded message (RVA) that my number was not connected. This document claimed that the RVA probably caused me to lose only about 50% of all incoming calls over these three weeks. Other documents referred to a minor fault in the phone exchange at Heywood, plus some other minor faults which may have contributed to some call loss. The manager told me Telstra agreed to accept responsibility for these faults if I agreed to their offer.

I protested and reeled off again the continuing and constant complaints I had been getting from customers. Her response was a simple 'take it or leave it': this was Telstra's last offer, she told me, and the only other avenue I could follow would be court proceedings. Her final comment was along the lines that, 'Telstra has more time than you have money to fund court proceedings.' Reluctantly, but feeling I had no other choice, I accepted. My reluctance was well justified.

By August 1993 came my first bundle of FOI documents from Telstra. In it, astonishingly, it was a Telstra minute of 2 July 1992, which revealed that local Telstra technicians regarded my complaints as correct about the 'service disconnected' RVA on my line. Not only that, the observation was made that the problem 'is occurring in increasing numbers as more and more customers are connected …' Senator Alston raised this document in Senate Estimates in February 1994, demanding a response from Austel. No response was forthcoming, and nowhere else did this revelation gather any advance for my cause, i.e.:

Ericsson AXE faulty telephone exchange equipment (2)

“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.” False Witness Statement File No 3-A

To further support my claims that Telstra already knew how severe my Ericsson Portland AXE telephone faults were, can best be viewed by reading Folios C04006, C04007 and C04008, headed TELECOM SECRET Front Page Part Two 2-B, which states:

“Legal position – Mr Smith’s service problems were network related and spanned a period of 3-4 years. Hence Telecom’s position of legal liability was covered by a number of different acts and regulations. … In my opinion Alan Smith’s case was not a good one to test Section 8 for any previous immunities – given his evidence and claims. I do not believe it would be in Telecom’s interest to have this case go to court.

“Overall, Mr Smith’s telephone service had suffered from a poor grade of network performance over a period of several years; with some difficulty to detect exchange problems in the last 8 months.”

And two years later, I received a copy of an FOI document headed by Telecom Secret.  AS5 file AS 1 to 47 This was a copy of the notes brought by the manager to the settlement meeting. The opening page, reproduced here, shows all too clearly that Telstra knew how solid my case was. The manager had blatantly misled me into agreeing to sign.

My acceptance of the offer notwithstanding, I continued to experience faults in my phone service. Particularly call drop-outs when part-way through a conversation, the line would simply go dead, and short duration rings when the phone would ring once or twice and then stop, with no one there if we picked up the receiver. Finally, in October of 1992, the area general manager arranged for two testing machines (called 'Elmi' machines) to be installed, one at the local Cape Bridgewater exchange and the other at my office.

When the COT Cases exposed this Ericsson AXE call loss rate to AUSTEL (the then government communications regulator), AUSTEL (now ACMA) instigated an investigation into these AXE exchange faults and uncovered some 120,000 COT-type complaints were being experienced around Australia. Exhibit Introduction File No/8-A to 8-C) shows AUSTEL’s Chairman Robin Davey received a letter from Telstra’s Group General Manager, suggesting he alter that finding:

For example, at point 4 on page 3, Telstra writes:

“The Report, when commenting on the number of customers with Cot-type problems, refers to a research study undertaken by Telecom at Austel’s request.  The Report extrapolates from those results and infers that the number of customers so affected could be as high as 120,000.

However, at point 2 on page 1 of Telstra’s letter 9 April 1994, Telstra writes:

“In relation to point 4, you have agreed to withdraw the reference in the Report to the potential existence of 120,000 COT-type customers and replace it with a reference to the potential existence of “some hundreds” of COT-type customers”.

The fact that on this occasion, on 9 April 1994, Telstra (the defendants) were able to pressure the Government Regulator to change their original findings in the formal April 1994 AUSTEL COT Case report is alarming, to say the least. Worse is that when AUSTEL released it into the public domain, the report states that AUSTEL only uncovered 50 or more COT-type complaints.

50 COT-type customer AXE complaints in comparison to 120,000 COT-type customer AXE complaints is one hell of a lie told by the government to its citizens who voted them into power.

False Reporting  

For a government regulator to reduce their findings from 120.000 COT-type complaints to read just 50 or more COT-type customer complaints is one hell of a lie told to its citizens. Were the government's downplaying of the Ericsson AXE fault complaints part of the overall collusion, which involved the purchasing of Lane Telecommunications Pty Ltd, who often worked on government contracts? 

Because the faulty Ericsson AXE telephone equipment played such an important part in the COT Cases 1994 to 1999 arbitration procedure, I have introduced it here along with the selling off of Lane Telecommunications Pty Ltd (the arbitration technical unit) to Ericsson, the very corporation it had been commissioned to investigate, during the COT arbitrations.

How can an Australian company like Lane be sold off during an Australian government-endorsed arbitration to a Swedish International telecommunications company it is investigating? If this is not collusion and corruption of the worst possible kind, then what is? 

Australia must be the only country in the Western world that allows a witness (Lane Telecommunications Ptd Ltd) was a witness to what the COT claimants and arbitrator had uncovered against Ericsson to be purchased by the very same company who were officially under investigation. This purchase bought the silence of Lane once the money was in the bank. The career politician again had closed their eyes to this collusion, regardless of how unethical all this had become, with one aim in mind to ensure the COT Cases were "stopped at all costs" from proving their arbitration claims pages 36 and 38 Senate -Senate - Parliament of Australia. 

I believe the Australian government should answer the following questions: How long was Lane Telecommunications in contact with Ericsson, the major supplier of telecommunication equipment to Telstra, before Ericsson purchased Lanes? Is there a link between Lane ignoring my Ericsson AXE claim documents and the purchase of Lane by Ericsson during the COT arbitration process? Is there a sinister link between the government communications media regulator ACMA denying me access to the Ericsson AXE documentation, which I lawfully tried to gain access to during my two government Administrative Appeal Tribunal hearings in 2008 and 2011 Chapter 9 - The ninth remedy pursued and Chapter 12 - The twelfth remedy pursued?

The latest 2019/2020 5G Ericsson partnership with Telstra is relevant to all Australian Telstra subscribers; however, it is also relevant that the same subscribers visit my website, absentjustice.com, where you can see that my claims against Telstra and Ericsson are valid.

Purchasing all of Lane Telecommunications' COT-related arbitration files (during the COT arbitrations) was a most significant coup for both Telstra and Ericsson because all of the arbitration technical information Lane had acquired as a witness during the COT arbitrations, which were stored in Lane's computer system as well as in hard copy records belonged to Ericsson once they owned Lane.

What the Australian government appears not to have considered when they allowed Lane to be sold off during our government-endorsed arbitrations is that Lane had signed a Confidentiality Arbitration Agreement in which each of the COT claimants also signed agreeing under no circumstances, they would disclose to a third party any information they obtained during the COT arbitrations. Here, Lane is the main arbitration witness allowed to sell that confidential acquired information to Ericsson, whom Lane had been assigned to investigate.

it is on record that when Lane together with Telstra and I visited the Portland Ericsson AXE telephone exchange and the Cape Bridgewater unmanned switching exchange on 6 April 1995, both Lane and Telstra would not allow me to view the Portland Ericsson AXE log book. It is most important I attach here the following link. Although dated 1996, all Ericsson exchanges had their own logbooks (see page 20 > http://www.wedophones.com/Manuals/EricssonNotInService/AXE%20Operation%20And%20Maint%. It is also on record that the arbitrator would not access this logbook under the arbitration discovery process. Even the Commonwealth Ombudsman (during my arbitration) tried to acquire this same logbook using my FOI applications but was unsuccessful. 

If the hackers mentioned on our webpage  Hacking Julian Assange/Chapter One were Julian Assange and his friend, and it is very likely it was them, then why hasn't the Australian Government understood what the hackers wanted to share with us COT cases? He did not ask for payment in sharing what he and his friends had uncovered concerning Telstra’s ailing copper wire network, as would have been the case if he had been a common criminal. He wanted us to have a fair arbitration hearing, and that was all. Had we used the information on offer, then the arbitrator would have been compelled to demand that Telstra fix its degraded Ericsson exchange equipment instead of bringing down his findings, which did not disclose the true extent of the corroded network that was destroying the COT cases' businesses and numerous other telephone dependent businesses throughout Australia.

This part of the story is of my battle with the first and second Telecommunications Industry Ombudsman and the Australian Government, a battle that has twisted and turned since 10 November 1993 through elected governments, government departments, regulatory bodies, the judiciary and the Australian telecommunications giant Telstra. This part of the COT story commenced on December 1993 TIO Evidence File No 3-A, an internal Telstra email (FOI folio A05993) dated 10 November 1993, from Chris Vonwiller to Telstra’s corporate secretary Jim Holmes, CEO Frank Blount, group general manager of commercial Ian Campbell and other important members of the then-government owned corporation. The subject is Warwick Smith – COT cases, and it is marked as CONFIDENTIAL:

Exhibit TIO Evidence File No 3-A confirms that two weeks before the TIO was officially appointed as the administrator of the Fast Track Settlement Proposal FTSP, which became the Fast-Track Arbitration Procedure (FTAP) he was providing the soon-to-be defendants (Telstra) of that process with privileged, government party room information about the COT cases. Not only did the TIO breach his duty of care to the COT claimants, he appears to have also compromised his own future position as the official independent administrator of the process.

I reported four calls dropping out at 1.20, 1.40, 2.00 and 3.00

Why didn't AUSTEL investigate the ELMI Tapes I provided them in August 1993, which were inadvertently left in Telstra's Briefcase on 3 June 1993, which confirmed on 13 October 1992 that Telstra had lied about the ongoing drop-out calls to my business which the ELMI tapes show arrived. Still, Telstra stated the Tapes did not record this activity when the tapes show otherwise. Who within the government communications regulatory office concealed these wrongs by Telstra (see directly below)? 

On 13 October 1992, I reported four calls dropping out at 1.20, 1.40, 2.00 and 3.00, and an occasion when I had answered the phone to find a deadline. Despite the Elmi machines, the Telstra technicians found no faults that they could detect as they had in so many instances before. What was going on?

I raised these Elmi non-connected calls with AUSTEL (as a matter of public interest) twelve months later after I proved to AUSTEL's John MacMahon that Bell Canada International Inc (BCI tests) could not have possibly conducted their testing at the Cape Bridgewater Addendum RCM switching exchange. And here Telstra was again lying about their testing at the Cape Bridgewater RCM switching exchange, this time regarding the failed Elmi testing AS11 file AS 1 to 47.

It was two years before I got any elucidation from Telstra, and even then, it shed no light on the matter. In 1994, in a bundle of FOI documents I received was a hand-written file note stating: -

'We had the Elmi disconnected at the RCM and were installing it at Mr Smith's house, and the CCAS showed no evidence of above 1.20, 1.40, 2.00 and 3.00.' AS11 file AS 1 to 47.

This was simply not the case at all; I knew they were not installing it at my house at this time; it was already installed. So I asked Telstra to supply their Elmi print-outs from September–October 1992. Some weeks later, many documents arrived, including tapes that show that the call drop-outs and deadlines that I had experienced appeared on Telstra's monitoring equipment (CCAS) records as answered calls at approximately 1.30 pm and 3 pm.

I could not fathom why a local technician would state that the Elmi equipment was disconnected at the exchange and installed at my house when these two print-outs show that it was installed and operating at both locations incorrectly. I could only assume that all this reflected the competence and capacity of Telstra's fault centre, as well as the accuracy of their records and reportage. That thought alone was very worrying when you are reliant on the telephone.

And now I began to suspect that there might not be a simple answer to the phone faults, just waiting to be discovered and fixed. It looked as if the problems were endemic throughout the organisation and its infrastructure.  

As I struggled from the end of 1992 to the New Year of 1993, I began to wonder if 'settling' with Telstra had been such a good idea. Nothing had changed. I had been forced to re-finance, incurring more set-up fees, and because I still couldn't afford to maintain the Camp properly the place was looking decidedly abandoned. I felt as if I had been abandoned too. Both the buildings and I were tired, run-down and in need of a facelift!

The other COT members were no better off. Maureen and Ann had also accepted settlements directly from Telstra, while Graham had his through the courts. And for each of us, poor and faulty phone service continued unabated.

My only source of strength at this time was from my fellow COT members. One Saturday evening, a couple of Scotches left me in tears of complete frustration. I knew I was easily capable of running the Camp as I pictured it, but instead, I was trapped in a vicious cycle. Without customers, I would soon be completely broke, but the customers couldn't reach me because the phones didn't work. Right then, Graham Schorer rang, urging me to hang in there, convinced that we would win out in the end.

Yes, some calls did get through, in what proportion I shall never know, though perhaps the rate is indicated by the following story. In personal desperation, I decided to ring Don Burnard, a clinical psychologist the COT members had contacted when we started creating the group. Dr Burnard had written a report regarding our individual conditions, noting the breakdown in our psychological defences due to the excessive and prolonged pressures we endured:

All of these clients have been subjected to persistent environmental stress as a result of constant pressure in their business and erratic patterns of change in the functioning of their telephones which were essential to the success of their businesses.

I rang Dr Burnard for support, but my conversation with his receptionist was interrupted three times by phone faults. Later I received a letter from his office, saying:

I am writing to you to confirm details of telephone conversation difficulties experienced between this office and our residence mid-morning this day, 5 May 1993. At approximately 11.30 am today Mr Alan Smith telephoned this office requesting to speak with Don Burnard. Mr Burnard was not available to take his call. During this time the telephone cut out three times. Each time Mr Smith telephoned back to continue the call.

Ann Garms and Graham Schorer had, by now, become my comrades in arms in this war we were fighting, and we had many group discussions as we tried to find a way to deal with the evasions and deceptions of Telstra management. But we were simply three small business people struggling against the might of a huge corporation. Not encouraging odds! We wondered if we could ever be in a position to expose Telstra's unethical corporate strategies and continued and apparently deliberate mishandling of our complaints. And Ann, like myself, had begun to suspect that our phone lines were being bugged. I will return to this later once we are able to provide evidence that our concerns are valid.

Early in 1993, as a spokesperson for COT, Graham Schorer met with Robin Davey, the chairman of Austel (the telecommunications industry regulator), to discuss our way forward. Austel was sympathetic to our situation. It recognised we had been let down in our settlements and sought to establish a standard of service against which Telstra's performance could be objectively measured in any future settlements.

Meanwhile, COT decided it was time to try to inform the Australian Senate of our plight. We sent submission after submission, with supporting FOI documents, and followed through with visits to Canberra, financed from our already depleted pockets, to meet with ministers who were sympathetic to our case.

By now, I had accumulated more than seventy letters from customers who had been unable to reach me by phone. This example, from a Year 7 co-ordinator for Hamilton High School (now Bainbridge College), who brought his group along every February from 1990, is typical:

“I wish to acknowledge in writing the repeated difficulty I have had contacting Alan Smith at the Cape Bridgewater convention centre by telephone. In the week 1st to 5 March, I made 5 or 6 attempted phone calls to Alan but I was unable to get through, indeed the line was 'dead'. This was extremely frustrating and had I not been aware of Alan's phone problems, I would have used another camp site”.

Astonishingly, one letter, dated 17 May 1993, was from a senior Telstra technical engineer, who wrote regarding his own experience of trying to ring me:

“On the 24/2/93, I received a phone call from a technician at Portland who stated he had been given a fault from (1100 fault dept.) indicating a customer in Ballarat had trouble calling your business 055 267 267. I then attempted to ring 055 267 267 myself, the ring was tripped after several bursts, i.e. 'answered', and I received a loud noise similar to a radio carrier noise and a very faint 'Hello'’.

At last, a second person inside Telstra acknowledged that I had a problem with the phone service! The engineer had even given me his name. Yet, in the course of their defence of my arbitration claims, Telstra proffered a Witness Statement from this man (made in December 1994) that included no reference to my ongoing telephone problems.

 

Chapter 4

 

PLEASE NOTE:

In Chapter 4, because there are so many individual exhibits needed to support this early part of our story, we have take the official secret government findings of their own investigations into my complaints. AUSTEL (now ACMA) cannot refute this part of our story as it is produced here word for word as shown in that report i.e.,

 

 

AUSTEL COT Case’s public report

Point 5.46 on page 95. ‘

As part of its direction, AUSTEL sought to obtain detailed information on each of the exchanges involved in terms of performance standards, actual performance, maintenance requirements, and achievements. Telecom initially responded with advice in terms of a few generalisations. A cooperative approach may have been expected to deliver particular requests that were necessary to obtain data. Indeed, throughout this inquiry, it has been apparent that Telecom has interpreted AUSTEL’s request for information in the narrowest possible terms. The net effect was to minimise the amount of relevant data it put before AUSTEL and lengthen the process necessary to extract it.

On 21st November 2007, I received from the Australian Communications and Media Authority (ACMA), under FOI, a copy of AUSTEL’s original draft findings dated 2nd / 3rd March 1994 regarding the telephone problems experienced by the Cape Bridgewater Holiday Camp from 1988 to 1994. Copied below are some of the page numbers and points in the report. I am discussing these issues here in Chapter 4 to show the difficulties that AUSTEL, as the Government regulator, had in obtaining documents from Telstra (at the time, a fully Government-owned Corporation). Given these difficulties experienced by the government, it should have been enough to halt the arbitration process until all the evidence needed by all the parties was made available to allow those parties to prove or disprove each COT Case claim.

If the government was unable to access the documents it needed to prove the various COT Cases claims and still allowed the claimants to spend hundreds of thousands of dollars trying to access documents from Telstra that even the government regulator could not access from Telstra breached their statutory obligation to the COT Cases for allowing Warwick Smith (the administrator to the arbitrations) and Dr Gordon Hughes (the arbitrator) into forcing the COT Cases into arbitration without the necessary documents to prove they still had ongoing telephone problems. 

Without this supply of documents to the COT claimants during their respective arbitrations, it is one of the reasons we, COT Cases, could not conclusively prove to the arbitrator my telephone faults were still ongoing. The following list identifies some areas (in the AUSTEL draft report) where AUSTEL had problems with access to Telstra records on the service provided to me:

     Point 43 on page 20 “As no fault report records remain in existence from Cape Bridgewater residents prior to this period, or these records have not been provided to AUSTEL, it is difficult to gauge the level of problems in the area.”

     Point 48 on page 22 “AUSTEL has been hampered in assessing Telecom’s dealings with Mr Smith by Telecom’s failure to provide files relating to Mr Smith’s complaints.”

     Point 71 on pages 28 and 29 “AUSTEL has not been provided with the documents on which the conclusion in this briefing summary were reached, such as fault reports from other Cape Bridgewater subscribers over this period or the details of the final selector fault.  It would have been expected that these documents would have been retained on file as background to the summary.  It can only be assumed that they are contained within the documentation not provided to AUSTEL.”

     Point 140 on page 49 “It should be noted that AUSTEL’s investigation of matters relating to the RCM problem has been hampered by Telecom’s failure to make available to AUSTEL a file specifically relating to the Pairs Gains Support investigation of the RCM.  The file was requested by AUSTEL on 9 February 1994.”

     Point 160 on page 55 “It should be noted that it is hoped that a number of issues in regard to the Cape Bridgewater RCM will be clarified when Telecom provides the documentation requested by AUSTEL.”

Once AUSTEL was fully aware Telstra was refusing AUSTEL relevant information that would allow the government communications regulator to prepare its official report for the minister after the regulator facilitated the arbitration and mediation processes that were to be based on information obtained from Telstra, it is evident that AUSTEL should never have allowed those processes to proceed. AUSTEL breached its duty of care to the COT cases by permitting the arbitrations/mediations to proceed. After all, if the government could not officially order Telstra to supply records to the minister, then what hope did the COT cases ever have of obtaining the same documents?

Absentjustice-Introduction File 495, dated 22 September 1994, is a transcript from an oral interview at the Commonwealth Ombudsman’s Office with AUSTEL’s representatives Bruce Matthews and John McMahon. On page 7 of this manuscript, the Commonwealth Ombudsman’s officer, John Wynack, asked: ‘What was the date the report was issued, the AUSTEL report? And Mr Matthews replied: ‘The final report was April – I can’t remember the date in April, but April 1994. The draft report was produced in March 1994, and Telecom received their copy then.

Spoliation of evidence – Wikipedia

In simple terms, AUSTEL only providing Telstra with a copy of their AUSTEL’s Adverse Findings in March 1994, not only assisted Telstra during their defence of my 1994/95 arbitration, but it also assisted Telstra in 2006, when the government could only assess my claims on a sanitized report prepared by AUSTEL and not their AUSTEL’s Adverse Findings.

The actions by AUSTEL were an abuse of process when they allowed me to commence arbitration/legal proceedings against Telstra without the necessary documents I needed to support my claim was one condemnation, but to have allowed me to spend more than $300.000.00 in arbitration fees trying to prove something that the government had already established against Telstra was an abuse of process. AUSTEL breached their statutory obligation towards me as a citizen of Australia. 

 

Minimizing Telstra’s liability 

It is important to note before AUSTEL did their investigation into my complaints, I provided them with a comprehensive log of my phone complaints, which my claim advisors Plummer and Pullinger later also supplied an updated copy to Dr Gordon Hughes (the arbitrator) on 15 June 1994 in my interim arbitration submission (see File - 7 to 9-A - AS-CAV Exhibit 1 to 47 and File 108 - AS-CAV Exhibit 92 to 127).

However, the arbitrator concealed this 'comprehensive chronology of my complaints' from his technical arbitration resource unit. The statements in that 30 April 1995 report Chapter 1 - The collusion continues, "A comprehensive log of Mr Smith's complaints does not appear to exist." In 1995, it cost me over $52,000 in arbitration fees to Plummer & Pullinger, and so far, they have refused to supply me a copy of their mailing fees of my Comprehensive log of my complaints to the arbitrator's office. One of the two partners later became a Senator in the John Howard government on behalf of the Queensland National Party. $52,000 was a lot of money for me to pay Plummer & Piullinger if they forgot to post the most important document of my entire arbitration process to the arbitrator.     

At the request of the government communications regulator AUSTEL (now ACMA) towards the end of 1993, I provided them with a condensed version of my comprehensive log of complaints, which did not include ongoing phone problems experienced after 1993. AUSTEL used some of those events to officially request from Telstra all data they had on file of how they responded to that chronology of events.  

AUSTEL’s Adverse Findings, dated March 1994, confirms that between Points 2 to 212, the government public servants who investigated my ongoing telephone problems found my claims against Telstra validated. One does not have to be a genius to understand that had the arbitrator been provided AUSTEL’s Adverse Findings, his award on my financial business losses would have been substantially higher than he awarded.  

Government records (see Absentjustice-Introduction File 495 to 551) show AUSTEL’s adverse findings were provided to Telstra (the defendants) one month before Telstra and I signed our arbitration agreement. I did not get a copy of these same findings until 23 November 2007, 12 years after the conclusion of my arbitration, which was outside the statute of limitations for me to use those government findings in which to appeal the arbitrator award.

Page 2 – "Mr Smith has had an ongoing complaint about the level of service for some time .....customer was originally connected to an old RAX exchange, which had limited junctions brtween Portland and Cape Bridgewater, Thus congestion was a problem for all customers on the Cape Bridgewater exchnage. The exchange was up graded to an RCM parented back to the Portland AXE 104".  

Page 10 – “Whilst Network Investigation and Support advised that all faults were rectified, the above faults and record of degraded service minutes indicate a significant network problem from August 1991 to March 1993.”

Point 23 – “It is difficult to discern exactly who had responsibility for Mr Smith’s problems at the 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 lighting (sic) strike to a bearer in late November” led to a specialist examination of the RCM on March 1993. Serious problems were identified by this examination.”

Adequacy of Response 

Point 25 – "It should also be noted that during the period of time covered by this chronology of significance events it is clear 

• Telecom had conducted extensive testing 
• Cape Bridgewater Holiday Camp frequestly reported problems with the quality of telephone service
• both the camp and Telecom were receiving confirmation of reported from other network users
• major faults were identified more through persitense reporting of probles by customer than through testing of the network 
• customers in the Cape Bridgewater area also complaining of similar problems

Point 26 – "The chronology of significant events demonstrates that Telecom conducted estensive testing and Telecom rectified faults without delay when faults were identified. It is clear however, that

• Cape Bridgewater Holiday Camp was exposed to significant network problems over an extended period of time 
• Telecom testing did not not detect all of the network problems affecting Mr Smith".

Telecom's Approach to reaching Settlement 

Point 27 – "As is discussed under allegation in more detail throughout this document, Telecom's failure to adequately identify Mr Smith's network problems challenges the bases of Senior Telecom Management's approach to the resolution of Mr Smith's complaints and his claims for compensation etc, etc 

Point 29 – "A fundamental issue underlying Telecom's settlement with Mr Smith was the question of whether Telecom had taken reasonable steps to comprehensively diagnose the standard of Mr Smith's telephone service. This is an important point as settlement took place on the bases that both parties agreed Mr Smith was receiving an acceptable standard of service at the time of settlement. Mr Smith maintains he was under considerable financial pressure to reach settlement, leading him to accept Telecom's assurances of his services at the time of settlement."

Point 32 – "Telecom's communications with Mr Smith in the months prior to settlement uniformaly argued that the Cape Bridgewater Holiday Camp was at an acceptable level and that Telecom was capable of rapidly rectifying faults as they occured."

Point 42 – “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 manifested in terms of service difficulties to the subscriber.”

Point 44 – “Given the range of faults being experienced by Mr Smith and other subscribers in Cape Bridgewater, it is clear that Telecom should have initiated more comprehensive action than the test call program. It appears that there was expensive reliance on the results of the test program and insufficient analysis of other data identifying problems. Again, this deficiency demonstrated Telecom’s lack of a comprehensive and co-ordinated approach to resolution of Mr Smith’s problems.” 

Point 46 –“File evidence clearly indicates that Telecom at the time of settlement with Mr Smith had not taken appropriate action to identify possible problems with the RCM . It was not until a resurgence of complaints from Mr Smith in early 1993 that appropriate investigative action was undertaken on this potential cause In March 1993 a major fault was discovered in the digital remote customer multiplexer (RCM) providing telephone service to Cape Bridgewater holiday camp. This fault may have been existence for approximately 18 months. The Fault would have affected approximately one third of subscribers receiving a service of this RCM.  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.”

Point 47 –“Telecom's ignorance of the existence of the RCM fault raises a number of questions in regard to Telecom's settlement with Smith. For example, on what bases was settlement made by Telecom if this fault was not known to them at this time? Did Telecom settle with Mr Smith on the bases 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? Wither criteria for settlement would have been inadequate, with the later critera 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 claims".

Point 48 – “AUSTEL has been hampered in assessing Telecom’s dealings with Mr Smith by Telecom’s failure to provide files relating to Mr Smith’s complaints.”

Point 49 –: "As a result of Telecom's failure to provide file documentation relating to Mr Smith some of the following conclusions are consequently based on insufficient information. The information which is avaialble however, demonstates that on a number of issues Telecom failed to keep Mr Smith informed on matters fundamental to the assessment of his complaints". 

Point 71 –: “AUSTEL has not been provided with the documents on which the conclusion in this briefing summary were reached, such as fault reports from other Cape Bridgewater subscribers over this period or the details of the final selector fault.  It would have been expected that these documents would have been retained on file as background to the summary.  It can only be assumed that they are contained within the documentation not provided to AUSTEL.”

Point 76 – “One disturbing matter in relation to Mr Smith’s complaints of NRR  is that information on other people in the Cape Bridgewater area experiencing the problem has been misrepresented from local Telecom regional manager to more senior manager.” 

Point 86 – “From examination of Telecom’s documention concerning RVA  messages on the Cape Bridgewater Holiday Camp there are a wide range of possible causes of this message.” 

Point 109 – The view of the local Telecom technicians in relation to the RVA problem is conveyed in a 2 July 1992 Minute from Customer Service Manager – Hamilton to Managers in the Network Operations and Vic/Tas Fault Bureau:

• “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 disconnecte. They believe that it is a problem that is occurring in increasing numbers as more and more customers are connected to AXE. (AXE – Portland telephone exchange)”

Point 115 –“Some problems with incorrectly coded data seem to have existed for a considerable period of time. In July 1993 Mr Smith reported a problem with payphones dropping out on answer to calls made utilising his 008 number. Telecom diagnosed the problem as being to “Due to incorrect data in AXE 1004, CC-1. Fault repaired by Ballarat OSC 8/7/93, The original deadline for the data to be changed was June 14th 1991. Mr Smith’s complaint led to the identification of a problem which had existed for two years.”

Point 130 – “On April 1993 Mr Smith wrote to AUSTEL and referred to the absent resolution of the Answer NO Voice problem on his service. Mr Smith maintained that it was only his constant complaints that had led Telecom to uncover this condition affecting his service, which he maintained he had been informed was caused by “increased customer traffic through the exchange.”  On the evidence available to AUSTEL it appears that it was Mr Smith’s persistence which led to the uncovering and resolving of his problem – to the benefit of all subscribers in his area”.

Point 140 – “It should be noted that AUSTEL’s investigation of matters relating to the RCM problem has been hampered by Telecom’s failure to make available to AUSTEL a file specifically relating to the Pairs Gains Support investigation of the RCM.  The file was requested by AUSTEL on 9 February 1994.”

Point 153 –“A feature of the RCM system is that when a system goes “down” the system is also capable of automatically returning back to service. As quoted above, normally when the system goes “down” an alarm would have been generated at the Portland exchange, alerting local staff to a problem in the network. This would not have occurred in the case of the Cape Bridgewater RCM however, as the alarms had not been programmed. It was some 18 months after the RCM was put into operation that the fact the alarms were not programmed was discovered. In normal circumstances the failure to program the alarms would have been deficient, but in the case of the ongoing complaints from Mr Smith and other subscribers in the area the failure to program these alarms or determine whether they were programmed is almost inconceivable.”

Point 158 – “The crucial issue in regard to the Cape Bridgewater RCM is that assuming the lightning strike did cause problems to the RCM om late November 1992 these problems were not resolved till the beginning of March 1993, over 3 months later. This was despite a number of indications of problems in the Cape Bridgewater area. Fault reports from September 1992 also indicate that the commencement of problems with the RCM may have occurred earlier than November 1992. A related issue is that Mr Smith’s persistent complaints were almost certainly responsible for an earlier identification of problems with the RCM than would otherwise have been the case.”

Point 160 – “It should be noted that it is hoped that a number of issues in regard to the Cape Bridgewater RCM will be clarified when Telecom provides the documentation requested by AUSTEL.”

Point 169 –" Documentation reviewed indicates that other network users attached to the Cape Bridgewater exchange did report problems similar to those experienced by Cape Bridgewater Holiday Camp. It is also clear that problems identified in the area would have impacted on other network users as well as Cape Bridgewater Holiday Camp."

Point 209 – “Cape Bridgewater Holiday Camp has a history of service difficulties dating back to 1988. Although most of the documentation dates from 1991 it is apparent that the camp has had ongoing service difficulties for the past six years which has impacted on its business operations causing losses and erosion of customer base.”

Point 210 – “Service faults of a recurrent nature were continually reported by Smith and Telecom was provided with supporting evidence in the form of testimonials from other network users who were unable to make telephone contact with the camp.”

Point 211 – “Telecom testing isolated and rectified faults as they were found however significant faults were identified not by routine testing but rather by the persistence-fault reporting of Smith”.

Point 212 – “In view of the continuing nature of the fault reports and the level of testing undertaken by Telecom doubts are raised on the capability of the testing regime to locate the causes of faults being reported.”

It is most important I submit the following:

At point 5.3 (d, c and d) in the arbitrator's findings of 11 May 1995, he notes:

(d)    ”I note the AUSTEL report commented on Telecom’s deficient fault recording practices. Specifically it was stated that Telecom lacked a system capable of recording reports of recurring faults once a fault had already been reported and was awaiting clearance. This meant the full extent of a fault experienced by a particular customer would not be recorded.”

(e)     In this context, the claimant’s diaries assume a particular significance. Telecom emphasised in its Principal Submission that diaries were lacking for the period 1988-1990 and hence “the magnitude of fault complaints reported by the Claimant is unsubstantiated”. It further points to the fact that for the period June 1988 to August 1991, only the claimant had a “significant level of fault complaints” amongst the customers then connected to Cape Bridgewater telephone exchange. Telecom concluded that the claimant’s claim must be exaggerated because “it is virtually impossible the faults at the exchange or at other exchanges could affect the claimant only, and not other subscribers as well”

(f)    In this context, I have considered, and have no grounds to reject, the expert evidence provided by Telecom from Neil William Holland Forensic Document Examiner, who examined the claimants diaries and because of numerous instances of non-chronological entries, thereby casting doubt on their veracity and reliability. This is a factor which I have taken into account although I do not accept Telecom’s conclusion that no evidence at all should be placed upon the diaries in support of the claimants assertions.    

 

Towards a Settlement Proposal

Telstra management was trying to force COT members into court, well aware that their highly paid lawyers would eat us alive. We became increasingly sure that this was their plan, and indeed, our suspicions were confirmed years later by some extraordinary documents which belatedly came our way.

Chapter 5

Sold out

In the arbitrator's summary of my diaries, he did not consider the guidance I received from the AFP, which instructed me to separate the faults reported by the school and other organizations regarding the poor telephone service from those related to my club patrons. I explained this to the arbitrator in writing and during a five-hour oral arbitration hearing in October 1994. The transcripts from this hearing indicate that I attempted to submit a second set of fault complaints under confidentiality. Dr. Hughes's statement in his award does not align with his understanding of why additional statements were added to the diaries after the initial entries were made.

… I have considered, and have no grounds to reject the expert evidence provided by Telecom from Neil William Holland, Forensic Document Examiner, who examined the claimant’s diaries and because of numerous instances of non-chronological entries, thereby causing doubt on their veracity and reliability

I contend that if the arbitrator had allowed these notes taken from my exercise books as evidence, and provided them to Telstra’s Forensic Documents Examiner, Mr Holland would have had a clear understanding of what the exercise books really were and would have realised there was no attempt at deception. On a similar note, I suppose that some readers might be wary of accepting all I write here as truth, as I am aware that some of it seems so outlandish.

Yet during his time as Minister for Communications in the early 1990s, Senator Kim Beazley was concerned at how Telstra’s Protective Services Unit spied on its own technicians and other employees, documenting their movements while they were on sick leave, so I do not think it unreasonable that we COT members believed we also were being spied on.

 

TIO Evidence File No 3-A is an internal Telstra email (FOI folio A05993) dated 10 November 1993, from Chris Vonwiller to Telstra’s corporate secretary Jim Holmes, CEO Frank Blount, group general manager of commercial Ian Campbell and other important members of the then-government owned corporation. The subject is Warwick Smith – COT cases and it is marked as CONFIDENTIAL:

“Warwick Smith contacted me in confidence to brief me on discussions he has had in the last two days with a senior member of the parliamentary National Party in relation to Senator Boswell’s call for a Senate Inquiry into COT Cases.

“Advice from Warwick is:

Boswell has not yet taken the trouble to raise the COT Cases issue in the Party Room.
Any proposal to call for a Senate inquiry would require, firstly, endorsement in the Party Room and, secondly, approval by the Shadow Cabinet. …
The intermediary will raise the matter with Boswell, and suggest that Boswell discuss the issue with Warwick. The TIO sees no merit in a Senate Inquiry.

“He has undertaken to keep me informed, and confirmed his view that Senator Alston will not be pressing a Senate Inquiry, at least until after the AUSTEL report is tabled.

“Could you please protect this information as confidential.”

Exhibit TIO Evidence File No 3-A confirms that two weeks before the TIO was officially appointed as the administrator of the Fast Track Settlement Proposal FTSP, which became the Fast-Track Arbitration Procedure (FTAP) he was providing the soon-to-be defendants (Telstra) of that process with privileged, government party room information about the COT cases. Not only did the TIO breach his duty of care to the COT claimants, he appears to have also compromised his own future position as the official independent administrator of the process.

It is highly likely the advice the TIO gave to Telstra’s senior executive, in confidence, (that Senator Ron Boswell’s National Party Room was not keen on holding a Senate enquiry) later prompted Telstra to have the FTSP non-legalistic commercial assessment process turned into Telstra’s preferred legalistic arbitration procedure, because they now had inside government privileged information: there was no longer a major threat of a Senate enquiry.

Was this secret government party-room information passed on to Telstra by the administrator to our arbitrations have anything to do with the Child Sexual Abuse and the cover-up of the paedophile activities by a former Senator who had been dealing with the four COT Cases? The fact that Warwick Smith, the soon-be administrator of the COT settlement/arbitrations, provided confidential government in-house information to the defendants (Telstra) was a very serious matter. 

Learning about government corruption and the dirty deeds used by the government to cover up these horrendous injustices committed against the COT Cases where government corruption within the public service affected most if not all of the COT arbitrations is the reason this story must be told.

On 17 January 1994, Warwick Smith the Telecommunications Industry Ombudsman (TIO) distributed a media release announcing that DR Gordon Hughes would be the assessor to the four COT Fast Track Settlements processes. The TIO did not say that, as I had feared, Telstra was not abiding by their agreement: they were not supplying us with the discovery documents critical for establishing our cases. The TIO also failed to tell the Australian public in this media release that he had agreed to secretly assist Telstra by providing them COT Cases issue  that were being discussed in the Coalition government Party Room.

Telstra and the TIO was treating us with sheer contempt, and in full view of the TIO and assessor. We 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 steamrolled their way over legal process.

To be fair, Austel’s chairman, Robin Davey, expressed his anger to Telstra about their failure to supply us our necessary documents, but it was to no avail. By February 1994, Senator Ron Boswell asked Telstra questions in the Senate, again to no practical avail. (Questions about this failure to supply FOI documents were raised in the Senate on a number of occasions over the following years, by various Senators, whose persistence ultimately paid off for some members of COT but, unfortunately, not for me.)

Worse than this, however, was a new problem for us COT four. The assessor had somehow been persuaded (presumably by Telstra) to drop the commercial assessment process he had been engaged to conduct and adopt instead an arbitration procedure based on Telstra’s arbitration process. Such a procedure would never be ‘fast-tracked, and was bound to become legalistic and drawn out. Telstra knew none of us had the finances to go up against its high-powered legal team in such a process. This was the last thing we COT members wanted. We had signed up for a commercial assessment and that’s what we wanted.

Graham Schorer (COT spokesperson) telephoned the TIO, to explain why the COT four were rejecting the arbitration process. Our reasons were dismissed. The TIO said he had been spending too much time on his role as administrator of our FTSP; that his office had already incurred considerable expense because of this role (Telstra was slow in reimbursing those expenses). He went onto say that his office had no intention of continuing to incur expenses on our behalf. He told Graham that if we did not agree to drop our commercial agreement with Telstra, Telstra would pull out all stops to force us into a position where we would have to take Telstra to court to resolve our commercial losses.

Moreover, if we decided to take legal action to compel Telstra to honour their original commercial assessment agreement, he (the TIO) would resign as administrator to the procedure. This action, he insisted, would have forced an end to the FTSP and left us with no alternative but to each take conventional legal action to resolve our claims.

On 30 November 1993, this Telstra internal memo FOI document folio D01248, from Ted Benjamin, Telstra’s Group Manager – Customer Affairs and TIO Council Member writes to Ian Campbell, Customer Projects Executive Office. Subject: TIO AND COT. This was written seven days after Alan had signed the TIO-administered Fast Track Settlement Proposal (FTSP). In this memo, Mr Benjamin states:

“At today’s Council Meeting the TIO reported on his involvement with the COT settlement processes. It was agreed that any financial contributions made by Telecom to the Cot arbitration process was not a matter for Council but was a private matter between Telecom, AUSTEL and the TIO.

I hope you agree with this.”

This shows that Telstra was partly or wholly funding the arbitration process.

If the process had been truly transparent then the claimants would have been provided with information regarding the funds – specifically, the amounts provided to the arbitrator, arbitrators resource unit, TIO and TIO special counsel for their individual professional advice throughout four COT arbitrations.

It is still not known how the arbitrator billed Telstra for his professional fees or how the TIO billed Telstra for his fees, and those of the TIO-appointed resource unit and special counsel. This raises the questions:

• Was the arbitrator and resource unit paid on a monthly basis?
• Did the resource unit receive any extra bonus for being secretly appointed as the second arbitrator in determining what arbitration documents the arbitrator was allowed to receive and what was withheld (see letter dated 11th July 1994, from Telstra to Warwick Smith)?

Without knowing how these payments were distributed by the defendants to the parties involved in the first four arbitrations, it would be impossible for the TIO and AUSTEL (now the ACMA) to continue to state that the COT arbitrations were independently administered.

To summarise the issue: during these four arbitrations, the defence was allowed to pay the arbitrator and those involved in the process. How is this different to the defendant in a criminal matter being allowed to pay the judge? It is a clear and concerning conflict of interest.

Senator Richard Alston, however discussed the Problem 1 document on 25 February 1994 during a Senate Estimates hearing. Another previously unseen document, dated 24 July 1992 and provided to Senator Richard Alston in August 1993, includes my phone number and refers to my complaint that people ringing me get an RVA “service disconnected” message. Yet another document, dated 27 July 1992, discusses problems experienced by potential clients who tried to contact me from Station Pier in Melbourne. (See Arbitrator File No 60).

Some of these hand-written records go back to October 1991, and many of them were fault complaints that I had not recorded myself. Telstra, however, has never explained who authorised the withholding of these names (those who had complained to Telstra) from me. If I had known who had been unable to contact me, I could have contacted them with an alternate contact number for future reference. Has the withholding of these names and the unavailability of my past historic fault documents related to the Jim Holmes issues mentioned below i.e. (see documents A01554, A06507 and A06508  - TIO Evidence File No 7-A to 7-C)?

The TIO had sold us out.

We implored the TIO to let us continue with the original FTSP agreement, but our pleas fell on deaf ears. Austel was no help either, and by April 1994, we had no choice but to prepare ourselves for an arbitration process. The first step was to familiarise ourselves with the rules of arbitration, unaware that Telstra’s lawyers had drafted them.

We had had been told, Austel had been told, and the Senate had been told that the arbitration agreement rules had been drawn up specifically for the purpose, independently of Telstra, by the President of the Institute of Arbitrators of Australia. We asked for a copy of these rules, which had already, apparently, been supplied to the TIO’s office, but the TIO refused our request, saying that it was ‘irrelevant to our cause’ More than once we asked the TIO for a copy, to no avail. We were told we should trust the arbitrator. And so, foolishly, we did. We really had no choice. We were all exhausted, stressed and clutching at straws. Singly and as a group we were vulnerable to the mute force of Telstra’s corporate power.

The rules included a confidentiality agreement that prevented anyone involved in the arbitration process from discussing the conduct of the arbitration process. In other words, if either party committed an offence of a criminal nature, this confidentiality clause would effectively stop an investigation, thereby allowing a cover-up. In my case, even though the TIO and the arbitrator were aware Telstra had perverted the course of justice during my arbitration, this confidentiality clause has so far stopped any investigation into this unlawful conduct. 

The Establishment 

While it is clear the Australian Establishment saw him as a shining light because he was protecting the assets of the then Government-owned telecommunications carrier, and therefore protecting the public purse and so creating an outcome for the good of all Australians, what that arbitrator, and the Government, have never wanted to acknowledge is that when Dr Hughes bent the law to protect Telstra and its shareholders it actually meant that the rule of law was breached. Telstra, the TIO who was also the administrator of the arbitrations the arbitrator, used their position to bluff those interested government ministers of seeing a just outcome to all of the COT arbitrations including, the media into believing that the services once investigated during the arbitration process once an award had been handed down by the arbitrator that service was now operating efficiently and effectively. When this was disputed or fought in any way by the claimant then it was Telstra, the TIO and the arbitrators policy to fight the accusations for as long as possible to tire and eventually wear down the claimant. In my own case, it is shown in Bad Bureaucrats that over a six year period after my arbitration and no one would investigate my complaints of ongoing unaddressed arbitration faults I reluctantly sold the business in December 2001, to the Lewis family. Their seven year unsuccessful  attempt to have the problems fixed is scattered throughout our story.

To present this statutory declaration in some sort of chronology of events we need to begin before April 1994, when the appointed commercial assessor decided, with the first TIO and the defendants (Telstra), to turn the commercial assessment, FTSP, into a highly legalistic arbitration process. Telstra’s lawyers controlled at least 33 of Australia’s largest legal firms and most, if not all, of Australia’s technical resource units (see Senate Hansard for 24 June and 26 September 1997). By using Telstra’s drafted arbitration agreement, faxed to the TIO on 10 January 1994, Telstra had their foot in the door to control the whole arbitration process. Later, Dr Hughes alerted the TIO, in his letter of 12 May 1995 (see Open Letter File No/56-A), that they were duped by Telstra into using an agreement that did not allow enough time for the:

“inevitable delays associated with the production of documents, obtaining further particulars and the preparation of technical reports”.

The only choice these two lawyers should have had was to admit they misled and deceived the four COT cases, the claimant’s lawyers and many of Australia’s government ministers, including the Canberra Parliament House press gallery, into believing the arbitration agreement was totally prepared independently of Telstra, when this was far from the truth, as they both knew. Instead, they decided to conceal, what they had done and by doing so they have stolen 22-years of our lives.

On18 November 1993, this same Chairman would not confirm this assurance in writing because, he explained, it could set a precedent. Telstra’s Corporate Secretary had written to him on 18th November 1993 (FOI D01274 to D01276, pointing out that:

“(3) Telecom does not accept the COT Cases’ grounds for reviewing the earlier settlements. However, on the basis of a denial of liability and without any legal obligation to do so and purely as a matter of good faith and business expediency, Telecom is prepared to agree to the above mentioned review.

(4) This proposal constitutes and offer open to all or any of the COT Cases referred to in Clause (1) (a), which will lapse at 5 pm Tuesday 23 November 1993. This offer may be accepted by signature below and sending advice of such signature to AUSTEL or the Telstra Corporate Secretary before that time.”

On 23 November Graham Schorer, Ann Garms, Maureen Gillan and I signed the FTSP, trusting in the Regulator’s verbal assurances that consequential losses would be included. These signed FTSP agreements were forwarded to Telstra’s corporate secretary. Alan included a letter with his agreement, clearly putting his expectations of the process:

“In signing and returning this proposal to you I am relying on the assurances of Mr Robin Davey, Chairman of Austel, and Mr John MacMahon, General Manager, Consumer Affairs, Austel, that this is a fair document. I was disappointed that Mr Davey was unwilling to put his assurances in writing, but am nevertheless prepared to accept what he said."

It goes on to say:

I would not sign this agreement if I thought it prevented me from continuing my efforts to have a satisfactory service for my business.  It is a clear understanding that nothing in this agreement prevents me from continuing to seek a satisfactory telephone service.”

A more precise chronology of events surrounding the Fast Track Settlement Proposal v Fast Track Arbitration Procedure as well as who drafted the originall FTAP can be obtained by clicking on Evidence - C A V Part 1, 2 and 3 - Chapter 3 - Fast Track Settlement Proposal.

Signing for arbitration, April 1994

On 21 April 1994 when we signed the documents to launch the new arbitration procedure, we still hadn’t seen the rules of arbitration. Not only did we want to see what we were in for, we wanted to make sure that the rules really were different from Telstra’s ‘proposed rules’. Our concerns were of no interest to the TIO however and so, as lambs to the slaughter, we signed on the dotted line. Later we discovered that the set of rules that had been supplied to the TIO’s office was actually headed "Telstra Corporation- Limited 'Fast Track' Proposed Rules of Arbitration". No wonder he had not wanted us to see it. The assurance we had been given as to the drafting of the rules had been a complete lie. Was anybody interested? I don’t need to give the answer to that.

My time now was focused on preparing my case for arbitration. In April 1994, Austel released its report on the COT cases,, and I used its findings and recommendations as a basis for my claims. I thought its findings in relation to my case were a lot milder than the original submissions I had made, but I learned that Austel had apparently had to tone it down because Telstra had threatened to enforce an injunction tying the report up for years. Austel had agreed to the amendments demanded by Telstra so that we COT four could have access to information in the report to prepare our claims. I did not know then of the ‘secret’ draft that I mentioned at the end of Chapter Three. This I did not discover until 2007.

In the meantime though, the Austel Report did confirm something for me. While I was hearing a constant refrain of ‘No fault found’ from Telstra, technicians were recording the truer picture. On occasions when I had rung to report the phone ringing once or twice, followed by no connection, officials had refused to acknowledge the fault, but in its report, Austel showed a different story:

In the period February to April 1993 Telstra staff responding to complaints lodged by Mr Smith of the Cape Bridgewater Holiday Camp recorded in their notes that there was a fault known to exist in AXE (digital) switching equipment which could give rise to a single burst of ring, followed by a busy tone to a caller and dial tone to the called party.

This was supported by quotes from technicians on the complaint forms:

‘This problem occurs intermittently throughout the network and although it is recognised as a problem there appears to be no one person or group involved in resolving it.’

‘I believe this may be tied up with the axe network problem which gives only one burst of ring and the calling party gets busy tone.’

A new fault

Even as I began to assemble my claims, there was a new fault to include. This was the ‘hang-up’ fault. While Telstra was refusing to send me documentary evidence for my claim, I was ringing their engineers about testing this hang-up fault, creating no doubt more evidentiary material that would be denied to me.

Since August 1993, I had complained to Telstra that customers and friends alike were commenting on the peculiar behaviour of my direct line, which was also a fax line. After I had hung up from calls I had initiated, they could (if they were slower to hang up) still hear me moving around the office. Because of all the other problems I was dealing with, I hadn’t paid much attention to this, but I needed now to come to grips with it.

On 26 April 1994, I phoned Cliff Matherson, a senior engineer at Austel, who suggested we carry out a series of tests. First, I was to hang up and count out loud, from one to ten, while he listened at his end. I did this; he heard me right through to the number ten and suggested we try it again but count even further this time. Again, he could hear me right through the range I counted. Next, he suggested I remove the phone from that line and replace it with the phone connected to my other line (they were both the same Telstra phones, Exicom model T200). We repeated the test, with the same results. According to Mr Matherson (and it was also apparent to me) this proved that the fault was not in the phone itself, but somewhere in the Telstra network. His next suggestion was that I ring Telstra, which I duly did.

I explained to the Telstra engineer that I could count to 15 or more after hanging up, and that the person at the other end could hear me. I didn’t mention that I had tested two different phones because I was well aware that Telstra had a strong inclination to blame the customer’s equipment first. I was interested to see what he would come up with first.

I performed the same tests with the Telstra engineer, with the same results, and he promised to send a technician to collect the phone the next day. An internal email in March 1994 shows that Telstra’s engineer was aware, before the phone was even tested, that heat in the Cape Bridgewater exchange was causing the fault; the email also adds to the evidence that Telstra was aware of phone faults in the exchange, even while I was preparing my claim for arbitration.

I am concerned to note that heat may be part of the problem. I had occasion earlier this year to get involved in another ‘ongoing’ case involving an RCM with a heat problem at Murrumbateman (just outside Canberra). I do note, that one of the symptoms from the Murrumbateman case was ‘Not Receiving Ring,’ something Alan Smith at Cape Bridgewater has been complaining about for some time.

When my Telstra account is compared with Telstra’s data for this period, the call hang-ups and incorrect charging were occurring from at least August 1993 right up until the phone was taken away on 27 April 1994. The phone itself was an Exicom, manufactured in April 1993, and later proved to be a player in one of the many sub-plots of this saga. But that story comes later.

Preparational costs

In May 1994, A huge bundle of FOI documents finally arrived from Telstra, originally requested by me in December 1993, five months after they should have been provided under the then FOI Act. The legality requirements under the Act state quite clearly that those supplying that requested information had 30 days in which to release the documentation being sought.  However, Telstra has always been a law unto themselves, with little the government seemed to be able to quash. ‘Wonderful,’ I thought, ‘now we’re getting somewhere.’ I was wrong. According to the FOI Act, documents should be supplied in some sort of order, numbered, and preferably chronological. These documents had no numbering system and were not in chronological order. Many were unreadable, with so much information blanked out that they were totally worthless. This would have driven even the most hardened lawyer to the wall with frustration. How could I support my claim with material like this?

A law student to assist would have been a God send. The mountain of documents threatened to engulf me entirely, especially knowing that Telstra’s enormous legal team stood by, waiting to pounce on every slightest crack they could manufacture in the claim documents I submitted.

I sought out the TIO and his legal counsel, explaining my lack of confidence and reiterating Robin Davey’s belief that a non-legalistic hearing was the best and fairest way for us to present our cases. The TIO could only console me with ‘Do the best you can,’ while his legal counsel assured me that the process was fair.

It was at this point of time that I decided I had no choice but to seek professional help. I began by approaching a firm of loss assessors in nearby Mt Gambier who had acted for me after some storm damage at the camp some years earlier. The assessor remembered that he had had a lot of trouble contacting me by phone. After discussing my current position, I decided that my problems were outside his area of expertise. I continued my search for assistance in the Melbourne metropolitan area, approaching four different companies specialising in communications. Three didn’t even respond in writing and the fourth simply wished me luck in finding someone who would be brave enough to go up against Telstra.

After this, I approached George Close in Queensland. George had technical expertise in the telecommunications area and was already working on Ann Garms’s case. He agreed to take mine on too, observing that we would get more of an insight into how Telstra was operating this way. Once Telstra became aware that we had secured George’s services, they approached him too, with an offer of work. It would seem they were trying to close off all avenues for us. George, however, at 70 years of age, was having none of that. He replied to Telstra that it would create a conflict of interest and, bless his beautiful heart, he declined their offer.

I also needed someone to help put the whole claim together. Finally, I located Garry Ellicott, an ex-National Crime Authority detective with a loss assessor company, Freemans, in Queensland. A final member of my team was Derek Ryan, a forensic accountant.

I felt cautiously optimistic. Government ministers, Austel, and even the auditors all agreed that the COT cases were right and Telstra was wrong. But we still had our backs against the wall. We were all in financial trouble, and we were getting no financial assistance from anywhere. I was raising money by selling camp equipment and borrowing from friends.

When we signed on for an FTSP in November 1993, it was not for legal arbitration. There was no allowance made for us to pay the legal professionals necessary to support our cases, and nor was such allowance made when the plan was switched on us. Had I known that professional fees would ultimately mount to over $200,000, I would never have agreed to the arbitration, even if the TIO and Telstra had held two guns to my head.

Under surveillance - Chapter 2

Telstra email K01006, dated Thursday, 7 April 1994, at 2.05 pm, raises two issues. Firstly, this date falls during the time I was involved in the Regulator-designed commercial agreement with Telstra, and secret observations would surely seem to be inappropriate, at the very least.  Secondly, this document refers to a time when I would be away from his business during this pending arbitration process. The author of the email states:

“Mr Alan Smith is absent from his premises from 5/8/94 – 8/8/94. On other occasions when he has been absent there have been documented complaints received (usually months later) involving NRR etc. I called the premises at approx 4:55 pm 6/4/94. The answer time was 41 secs.

I intend on this occasion to document his absence and file all data I can collect for the period. That way we should be prepared for anything that follows.” 

Clearly, the writer knew, in April of 1994, that I planned to be away later that year, in August. In other words, he knew of my movements four months in advance.

The then-Minister for Communications, the TIO and the Federal Police were all supplied with this document, along with a number of other documents indicating that my private telephone conversations were being ‘bugged’.Another FOI document Folio 000605, clearly shows that the writer knew when “…Smith is in Melbourne”. I used to go to Melbourne (see AFP Evidence File No 8) on promotional tours to various single clubs advertising what outdoor activities we were packaging for two and three-night stop-overs. Horse riding, canoeing, caving and bush-walking. How could the writer have this information if someone hadn’t listened to this call to find out when I was going and which local girl would be on duty at the camp? Anyone reading the AFP transcripts from their interview with me on 26 September 1994 (see AFP Evidence File No 1) will see that the AFP documented many examples where, unless Telstra was not listening into my private telephone conversations, they would not have been able to document what they had on these FOI documents.  Telstra have never been able to explain how they came by this information. At other times, this same person has also stated that he knew I had spoken to Malcolm Fraser, former Australian Prime Minister, on the phone, and when that conversation took place. (AFP Evidence File No 7) He insists I told him about this conversation, but this is not true. Again, Telstra has never been able to find a convincing explanation for their employee having this information. Obviously Telstra was still listening to my private calls, even though he was then involved in litigation with them and their lawyers.

Listening to private calls is appalling enough, but the following information is even more damning. Page A133 of the official Senate Hansard records dated 25 February 1994 states that the then-Shadow Minister for Communications questioned the Regulator’s Chairman, asking:

“Why did not Austel immediately refer COT’s allegations of voice recording to the federal police instead of waiting for the minister to refer the matter to the Attorney-General and then on to the federal police? 

A copy of a letter dated 2 March 1994, from Telstra’s Corporate Solicitor, Ian Row, to Detective Superintendent Jeff Penrose (see Home Page Part-One File No/9-A to 9-C). This letter makes it quite clear that Mr Penrose was profoundly misled and deceived about the faxing problems I was having to deal with, as discussed in this letter. Over the years, many people have compared the four exhibits numbered (File No/9-C) with the interception evidence revealed in Open Letter File No/12, and File No/13 and promptly concluded that, if Ian Row had not misled the AFP in relation to my faxing issues then the AFP would have been able to stop Telstra from intercepting the various relevant AFP arbitration documents in March 1994, before any damage had been done.

The then-Minister for Communications, the TIO and the Federal police were all supplied with this document, along with a number of other documents indicating my private telephone conversations were being ‘bugged’. Another FOI document, Folio 000605, shows the writer knew when “…Smith is in Melbourne”. I used to go to Melbourne (see AFP Evidence File No 8) on promotional tours to various single clubs advertising the outdoor activities we were packaging for two and three night stays. This information could only have been gleaned from listening into this call to find out when I was going and which staff member would be on duty at the camp. Anyone reading the AFP transcripts of my interview on 26 September 1994 (see AFP Evidence File No 7) will see the AFP documented many examples Telstra must have listened into our private telephone conversations in order to document the details in these FOI documents. Open Letter File No/12 and File No/13 prove COT cases’ faxes were intercepted during their arbitrations.

At Australian Federal Police Investigations, there is a detailed description of how Dr Hughes (the arbitrator) spent five non-stop hours interrogating me in front of two of Telstra’s arbitration defence officers.  This interrogation included questions that were clearly made in an attempt to discover how far the Australian Federal Police had reached during their investigations into issues that the then-Government Minister, Michael Lee MP, had officially asked them to investigate in relation to whether or not my faxes were indeed being intercepted or had just been lost in the system.  This sort of interrogation was, however, forbidden under the rules of the signed arbitration agreement but, in Australia, when you challenge the Telstra Corporation, you have absolutely no chance of finding justice!

In January 1999, the arbitration claimants provided the Australian government with a report confirming confidential, arbitration-related documents were secretly and illegally screened before they arrived at their intended destination. In my case, even though the arbitrator’s secretary advised the arbitration process that six of my faxed claim documents never reached the arbitrator’s office, I was never afforded the opportunity to resubmit this material for assessment. My fax account shows I dialled the correct fax number on all six occasions.

NONE of the COT cases was ever on a terrorist list in 1994 (or since, for that matter) and none of us was ever listed as suspects regarding any crimes committed against any Australian citizens. Why were our in-confidence arbitration and Telstra-related documents hacked by Telstra? In my case, 43 separate sets of correspondence faxed to the arbitrator’s office (some with attachments) are not listed on the Arbitration Schedules of Material as received by the arbitration process. Front Page Part One File No/1 shows the arbitrator’s secretary advised Tony Watson (of Telstra’s arbitration defence unit) that on 23 May 1994 six of my claim documents did not reach arbitrator’s fax machine. Yet, I was charged on my Telstra account for those six faxes. When this matter was exposed, no one from the arbitrator’s office nor the TIO’s office allowed me to amend my claim so that proven “not received” claim documents were valued by the arbitrator in support of my claim.

I raised enough cash to bring Garry Ellicott to the camp for a few days in May 1994 to observe what was going on with the phones. During his stay, Garry commented that he believed I was being watched, or rather, listened in on. His background as bodyguard for US President, Jimmy Carter, gave him some experience in this area during his visit to Australia.

I already had experienced several instances of Telstra accumulating personal information about me — details of who rang me, when they rang and from where, when staff left my business, even my movements. In April 1994, Telstra's Melbourne fault reporting officer seemed to be aware of my movements four months in advance when he wrote an internal memo to another member of staff:

Mr Alan Smith is absent from his premises from 5/8/94 – 8/8/94. On other occasions when he has been absent there have been documented complaints received (usually months later) involving NRR etc …I intend on this occasion to document his absence and file all data I can collect for the period. That way we should be prepared for anything that follows. 

Telstra has never explained how this Telstra fault officer came by this information, nor how he also knew I had spoken to the former Australian Prime Minister, Mr Malcolm Fraser, on the phone, and when that conversation took place.

This person insists I told him about this conversation but this is not true. I told him no such thing.

In an internal Telstra memo around the time of the ‘briefcase saga’, the unidentified writer, a local Telstra technician, offers to supply a list of phone numbers I had rung. I had previously learned that the writer was listening in to my private conversations and, when I challenged him with this information, he informed me he was not the only technician in Portland listening in.

Not long into our arbitrations, Graham Schorer (in his official role as COT spokesperson) received two phone calls within a couple of days, both from young people. They told Graham they knew we were in arbitration with Telstra and wanted to alert him to what they had discovered when they hacked into Telstra’s email network. They had found documents confirming that there were people close to our arbitration – as well as Telstra – who were acting unlawfully towards us. Both times they rang they asked if we would like them to send us that evidence.

Graham and I discussed the offer of the first call, but we finally said NO on the second call although we were interested in what Graham had heard. We were concerned this might be a set-up by Telstra and therefore if we agreed to accept this promising material, then both our arbitrations might be declared null and void.

Since then, Andrew Fowler and Suelette Dreyfus have each published book referring to Julian Assange’s hacking into Telstra’s Lonsdale Telephone Exchange in Melbourne, which Graham’s business and mine were trunked through. Was it Julian Assange and his friends who had contacted us? His concerns about the COT cases not getting the justice we were entitled to, certainly matches his profile.

In hindsight, we probably should have accepted that very kind offer. We might well have been able to use that evidence against Telstra all those years ago, and perhaps we would not be here writing our story 20 or more years later.

This side of the COT story can be accessed by viewing our website absentjustice.com and clicking onto our Hacking - Julian Assange page.  

Between February and September 1994, I provided documents to the Australian Federal Police which I had received under FOI showing Telstra knew more about my private and business arrangements than it should have. On 3 June 1990, during the period Telstra was telling me they had not found any problems (faults in their network) that were still affecting the viability of my businesses, "The Australian" (newspaper) printed an article under the heading: Telecom ‘spying’ on its employees, which supports pages 1 to 6 of the AFP transcripts (see Senate Evidence File No/ 44 Part 1 and File No/45 Part). The newspaper article states:

“She said the accusations were contained in a statement by a former member of Telecom’s Protective Services branch.

“Senator Jenkins said the man claimed:

• 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.” (See Hacking-Julian Assange File No/19)

Democrat Senator Jean Jenkins told the Senate last week Telecom’s activities included bugging workers’ homes. …

In February 1994, the AFP visited my business at Cape Bridgewater to discuss my claims that recently received FOI documents suggested Telstra had been monitoring my telephone conversations. The AFP was concerned that Telstra had written the names of various people and businesses I had called, on CCAS data records, which collated all incoming and outgoing calls to my business (see Hacking-Julian Assange File No 20). The hand-written notes in the right-hand column of this CCAS data include against dates, the names of people that I telephoned and/or faxed e.g., 31 January 1994, GM (Golden Messenger), AUSTEL and the Ombudsman. In one instance, the name Faye Smith appears when I phoned my ex-wife. This reflects Senator Jenkins statements above regarding Telstra’s secret surveillance of their own employees in 1990, because here is Telstra using similar tactics in January 1994 while they were in a litigation process with me.

The pressure on all four of us COT cases was immense, with TV and newspaper interviews as well as our continuing canvassing of the Senate. The stress was telling by now but I continued to hammer for a change in rural telephone services. The other three COT Cases businesses were in central Brisbane and Melbourne. The Hon David Hawker MP, my local Federal member of parliament, had been corresponding with me for some time concerned that people in his electorate were being treated as second-class citizens. On 26 July 1993, Mr Hawker wrote:

“A number of people seem to be experiencing some or all of the problems which you have outlined to me. …

“I trust that your meeting tomorrow with Senators Alston and Boswell is a profitable one.” (See Arbitrator File No/76)

On 18 August 1993 The Hon David Hawker again wrote to me, noting:

“Further to your conversations with my electorate staff last week and today I am enclosing a copy of the correspondence I have received from Mr Harvey Parker, Group Managing Director of Commercial and Consumer division of Telecom.

“I wrote to him outlining the problems of a number of Telecom customers in the Western Districts, including the extensive problems you have been experiencing.” (See Arbitrator File No/77 and Arbitrator File No/82)

An internal hand-writen Telstra memo (see AFP Evidence File No 8) discusses two singles club clients of mine (I have redacted the names of these clients for security reasons), describes the constant engaged signal she experienced when trying to book a weekend during April and May 1993. AFP Evidence File No 8) dated 17 June 1993, records the personal phone numbers of these two ladies, but it also confirms Telstra was fully aware of when my office assistant left the business while I was away. 

My AFP interview transcript on 26 September 1994 describes Telstra recording who I phoned or faxed, and when. The AFP believed Telstra monitored my calls because the people they recorded were associated with the COT issues. Pages 3-5 of the AFP transcript, together with other documents I provided to the AFP between February and November 1994, prove that Telstra had listened in on private conversations.

So chronic and serious were my telephone faults in early 1993, that Telstra threatened (the first of two series of threats) that I had to register my ongoing telephone/faxing problems with their outside lawyers or they would refuse to regard my complaints as genuine.

By July/August 1993, the communications regulator was becoming concerned at Telstra’s approach to our complaints; particularly their continual use of outside solicitors. In October 1993, while the regulator was negotiating with Telstra for a commercial settlement proposal to be put in place for the COT members, the regulator’s chairman made it clear to Telstra’s commercial division that the regulator would not be happy if Telstra’s solicitors were used in future COT matters. This request was ignored however and Telstra continued to insist that I register my complaints through their solicitors, even though by then I was in litigation with Telstra

This fight was dirty and controlled. 

Later, when Telstra submitted their defence of my arbitration, I learned that Telstra’s solicitors also acted as Telstra’s defence counsel. By this time, I was able to provide the arbitrator with clear proof that Telstra had provided incorrect written statements to the regulator and me, with regard to incidents that occurred between January and August of 1993. The arbitrator would not investigate this information.

One document I provided the AFP in 1994, does not state Adelaide or a specific location elsewhere,  other than I was visiting Melbourne. I used to visit both Melbourne and South Australia on a regular basis from 1991 to 1993. Did Telstra even know where I stayed and who with? Let us not forget, I was not under suspicion of committing any crime let alone a serious one, nor was I suspected of being a terrorist. So why were the communications carrier and/or their government minders interested in my contacts and movements? When I showed AFP Evidence File No 8 to Margaret (my office assistant) she advised me that she had not spoken to anyone about leaving the holiday camp (which was at 5.30 pm just as described in this Telstra memo). This part of our Hacking-Julian Assange page more than suggests that my daily moments were monitored by someone and/or some organisation who had ready access to Telstra’s network.

After the AFP had discussed that Telstra file note with me it became clear that Telstra knew that I was getting regular phone calls from someone in Adelaide who usually rang from his Pizza Restaurant but, on this occasion, they had noted that he had phoned me from a different number. AFP transcripts indicate their concern that, in order to have gained this knowledge, Telstra must have been listening to ALL my telephone conversations, both on a regular basis and for some considerable time. I alerted AUSTEL to this situation because some documents, which I have retained, record some eighty or more calls that should have connected to my business but didn’t, because they were illegally diverted to another number. At that time, this is exactly what was happening to other businesses around Australia too, and AUSTEL and the AFP could both see that all those calls were being diverted to the same business.

Federal Police investigation

Other members of COT also experienced this ‘voice monitoring’. In a Telstra internal memo relating to the Tivoli Theatre Restaurant, owned and run by Ann Garms in Brisbane, is the comment:

Tests looped … maybe the bug has slipped off. Looks like a job for super sleuth Sherlock Kelly? (See to exhibit 2 file Phone/fax bugging 1 to 8)

An ongoing Telstra fault record relating to the Tivoli Restaurant provides surprisingly interesting reading when it makes reference to the Federal Police investigation:

John Brereton (Fed Police) initially stated a particular person was paying money for 3 people + others in Telstra to manipulate some services … Why was Federal police stopped from investigating the Tivoli Case …

Why did John Brereton start to deny everything and then volunteer for service in New Guinea for 2 years …”

Why did AA of Protective Services initially accede to my request to borrow a Bug scanning device for the 12th Night and Tivoli, then suddenly change heart (See exhibit 1 file Phone/fax bugging 1 to 8)

In January 1994, COT members informed the Minister of Communications of our suspicions of Telstra bugging, after which things happened very quickly. The Minister ordered an investigation by the Federal Police (AFP), and on 10 February 1994 Austel wrote to the Telstra Manager in charge of the COT arbitrations:

Yesterday we were called upon by officers of the Australian Federal Police in relation to the taping of the telephone services of COT cases.

On 25 February, Senator Alston, then Shadow Minister for Communications, asked Austel’s Mr Robin Davey in the Senate Estimates Committee hearing on COT issues:

Mr Davey, Why did not Austel immediately refer COT’s allegations of voice recording to the Federal Police instead of waiting for the Minister to refer the matter to the Attorney General and then on to the Federal Police? 

Be that as it may, when the AFP interviewed Austel, they were provided with documents showing that Telstra had listened in to my phone conversations.

In a letter to Telstra in February 1994, John MacMahon, General Manager, Consumer Affairs, Austel, acknowledges receipt of nine audio tapes from Telstra and notes that these tapes, which are related to the ‘taping of the telephone services of COT Cases,’ had been passed on to the AFP. No warrant was ever issued by the Federal Court for this taping, neither was a warrant issued in either of the Australian states in which the taping took place. Clearly, therefore, this taping was carried out unlawfully. Further, it was carried out during a legal resolution process involving the COT members.

Despite these investigations, no findings of Telstra’s surveillance or monitoring activities have ever been officially presented. At the time of writing, Telstra has still not been held to account, even for those which took place when Telstra was in arbitration with me. If the AFP or the government had pursued these questions, I would not still be searching for answers today.

On a number of occasions during 1994 I was interviewed by the AFP on this matter, and while they were unable to show me the documents and tapes Austel had given them, it seemed to me they were taking my problems with Telstra and my arbitration seriously. In one interview, I showed them an FOI document which conveys that the writer knew where the caller usually rang from even though, on this occasion, the caller was phoning from a different number, ‘somewhere near Adelaide’. The police were concerned about how a caller was able to be identified if he called from another number.

Constable (name deleted) of the AFP affirmed for me that Telstra had provided them with evidence of this ‘live monitoring’, which had gone on for some time:

… you were live monitored for a period of time. So we’re quite satisfied that, that there are other references to it. 

Senator Alston also put a number of questions on notice for the Senate Estimates Committee, to be answered by Telstra. These are the questions most pertinent to the COT claimants:

5.    Could you guarantee that no Parliamentarians, who have had dealings with ‘COT’ members, have had their phone conversations bugged or taped by Telstra?

9.    Who authorised this taping of ‘COT’ members phone conversations and how many and which Telstra employees were involved in either the voice recordings, transcribing the recordings or analysing the tapes?

10.  On what basis is Telstra denying copies of tapes to those customers which it has admitted to taping?

11.  (A) How many customers has Telstra recorded as having had their phone conversations taped without knowledge or consent since 1990?

       (B) Of these, how many were customers who had compensation claims, including ex-Telstra employees, against Telstra? 

In all the FOI documents I have searched, I have never seen these questions answered.

Other FOI documents I presented to the Australian Federal Police show that Telstra officials were making notes on who I rang and were keeping records including the names of other organisations, clients and friends. Even my ex-wife did not escape — her name was listed also. I kept the TIO informed of such developments, but at no point did he ever make any response on the matter.

An extraordinary intervention

At the end of March 1994, I got an extraordinary phone call. Frank Blount, Telstra’s CEO, their top man, rang me, wanting to know what I thought was the underlying cause of my telephone problems. Presumably, he had taken this upon himself to find the cause of my complaints. He was understanding, respectful and courteous, and I told him I thought that both Portland and Cape Bridgewater exchanges had been suffering from congestion for years. He gave me his word that he would investigate my theory, and it turned out he was a man of his word.

‘Cape Bridgewater COT Case’, an internal Telstra email dated 6 April 1994, shows the result of his influence:

Following previous lost call analysis of the Z route between Warrnambool node and Portland AXE–R (PORX) it was decided to increment this route from 30 to 60 CCTS …

Could you please ‘fast track’ this project due to the sensitivity of the current COT case at Cape Bridgewater (off PORX).

Another, dated 7 April 1994, followed with:

At 4.55 pm on 6/4/94 I was informed by Network Ops that the route into the Portland exchange would be increased by 30%. The work was to be completed prior to midnight that day. This should alleviate any problems Mr Smith or anyone else in the area has been experiencing with congestion into the area for some time. 

(In fact, an extra 30 circuits into Portland (30 to 60 CCTS) represented a 100% increase in the phone route into Portland exchange, not 30%. But either way, the increase in lines was appreciated allowing more 008/1800 customers to finally connect to my business)

It needs to be remembered too that much of the business income that I lost in connection to my social and single club setup was directly related to my then-ongoing telephone free-call 008/1800 service problems and, coincidentally, many of the social club patrons who had been unable to get through to me on the phone (which meant, of course, that they couldn’t book in), came from Ballarat, Melbourne and South Australia.

On one of these many occasions, AUSTEL took up an investigation, on my behalf, and that revealed the problem I had raised with Telstra, in the past, about Ballarat’s telephone public phone system, a problem that had, until then, lasted for more then two years and, as AUSTEL actually states at point 115 AUSTEL’s Adverse Findings), if it had not been for my persistence in demanding that Telstra investigate my complaints about Ballarat’s telephone system (even though I wasn’t even living there then), this fault that turned out to be a problem in Telstra’s public phone system, would have continued to affect the Ballarat region long after the two years it had already existed in the network

Break-ins and losses

From the sublime to the ridiculous. It was also March 1994 when Graham Schorer and another COT member suffered break-ins and lost business-related documents. That made all of us a lot more vigilant. I found no evidence of a break-in, but I did notice two diaries covering the period 1987 to 1989 were missing. I decided to remove my official business diaries from my office, and from then on I transferred information to them on a weekly basis from my wall calendar and unofficial notebooks.

In February 1994, the AFP visited my business at Cape Bridgewater to discuss my claims that recently received FOI documents suggested Telstra had been monitoring my telephone conversations. The AFP was concerned that Telstra had written the names of various people and businesses I had called, on CCAS data records, which collated all incoming and outgoing calls to my business (see Hacking-Julian Assange File No 20). The hand-written notes in the right-hand column of this CCAS data include against dates, the names of people that I telephoned and/or faxed e.g., 31 January 1994, GM (Golden Messenger), AUSTEL and the Ombudsman. In one instance, the name Faye Smith appears when I phoned my ex-wife. This reflects Senator Jenkins statements above regarding Telstra’s secret surveillance of their own employees in 1990, because here is Telstra using similar tactics in January 1994 while they were in a litigation process with me.

When it was uncovered Telstra employees were stealing millions upon millions of dollars not just the COT Cases for knowingly continuing to charge them for telephone calls not made or had terminated minutes before the billing software had relaesed those calls there was immense pressure, with TV and newspaper interviews as well as our continuing canvassing of the Senate. The stress was telling by now but I continued to hammer for a change in rural telephone services. The other three COT Cases businesses were in central Brisbane and Melbourne.

An internal handwritten Telstra memo (see AFP Evidence File No 8) discusses two singles club clients of mine (I have redacted the names of these clients for security reasons), describing the constant engaged signal she experienced when trying to book a weekend during April and May 1993. AFP Evidence File No 8) dated 17 June 1993, records the personal phone numbers of these two ladies, but it also confirms Telstra was fully aware of when my office assistant left the business while I was away. 

My AFP interview transcript on 26 September 1994 describes Telstra recording who I phoned or faxed, and when. The AFP believed Telstra monitored my calls because the people they recorded were associated with the COT issues. Pages 3-5 of the AFP transcript and other documents I provided to the AFP between February and November 1994 prove that Telstra had listened in on private conversations.

My Australian Federal Police (AFP) interview transcript on 26 September 1994 Australian Federal Police Investigation File No/1 describes Telstra recording who I phoned or faxed, and when. The AFP believed Telstra monitored my calls because the people they recorded were associated with the COT issues. Pages 3-5 of the AFP transcript, together with other documents I provided to the AFP between February and November 1994, prove that Telstra had listened in on private conversations. 

Question 81 in the AFP transcipt Australian Federal Police Investigation File No/1 confirm the AFP told me that AUSTEL's John MacMahon, (Australian government communications regulator) had supplied the AFP evidence my phones had been bugged over and an extended period noting that information supplied it; 

"... does identify the fact that, that you were live monitored for a period of time. See we're quite satisfied that, there are other references to it".

So chronic and serious were my telephone faults in early 1993, that Telstra threatened (the first of two series of threats) that I had to register my ongoing telephone/faxing problems with their outside lawyers or they would refuse to regard my complaints as genuine.

By July/August 1993, the communications regulator was becoming concerned at Telstra’s approach to our complaints; particularly their continual use of outside solicitors. In October 1993, while the regulator was negotiating with Telstra for a commercial settlement proposal to be put in place for the COT members, the regulator’s chairman made it clear to Telstra’s commercial division that the regulator would not be happy if Telstra’s solicitors were used in future COT matters. This request was ignored however and Telstra continued to insist that I register my complaints through their solicitors, even though by then I was in litigation with Telstra

Later, when Telstra submitted their defence of my arbitration, I learned that Telstra’s solicitors also acted as Telstra’s defence counsel. By this time, I was able to provide the arbitrator with clear proof that Telstra had provided incorrect written statements to the regulator and me, with regard to incidents that occurred between January and August of 1993. The arbitrator would not investigate this information.

One document I provided the AFP in 1994, does not state Adelaide or a specific location elsewhere,  other than I was visiting Melbourne. I used to visit both Melbourne and South Australia on a regular basis from 1991 to 1993. Did Telstra even know where I stayed and who with? Let us not forget, I was not under suspicion of committing any crime let alone a serious one, nor was I suspected of being a terrorist. So why were the communications carrier and/or their government minders interested in my contacts and movements? When I showed see AFP Evidence File No 8 to Margaret (my office assistant) she advised me that she had not spoken to anyone about leaving the holiday camp (which was at 5.30 pm just as described in this Telstra memo). This part of our Hacking-Julian Assange page more than suggests that my daily moments were monitored by someone and/or some organisation who had ready access to Telstra’s network.

After the AFP had discussed that Telstra file note with me it became clear that Telstra knew that I was getting regular phone calls from someone in Adelaide who usually rang from his Pizza Restaurant but, on this occasion, they had noted that he had phoned me from a different number. AFP transcripts indicate their concern that, in order to have gained this knowledge, Telstra must have been listening to ALL my telephone conversations, both on a regular basis and for some considerable time. I alerted AUSTEL to this situation because some documents, which I have retained, record some eighty or more calls that should have connected to my business but didn’t, because they were illegally diverted to another number. At that time, this is exactly what was happening to other businesses around Australia too, and AUSTEL and the AFP could both see that all those calls were being diverted to the same business.

During the February 1994 AFP hearing (before the break-ins and losses were uncovered), Detective Superintendent Jeff Penrose of the AFP suggested from the information I had shown him that as I was now involved in my commercial settlement process with Telstra and the assessor would indeed be calling for information on bookings and general camp information that I should copy from my wall planner diaries including handwritten notations to what clients had reported because that was relevant to the AFP investigations as well as it would be to the appointed assessor.

I started writing the client information and notations from the extensive wall planners into my diaries as a second backup after the AFP had left. 

In May 1994, during his visit, Garry Ellicott, my now arbitration advisor and I spent five nights trying to decipher the pile of Telstra FOI discovery documents. It was during his visit I discovered further losses: exercise books in which I kept official booking records; a number of bank statements and my bank pay-in books for 1992/93. I cannot account for these losses. It is possible they were also missing in March, and I simply didn’t notice their absence. Without these records, I was hard pressed to produce full and correct financial statements for my forensic accountant, Derek Ryan, and was reduced to scavenging information from wall calendars and other unofficial sources which by now I had started to copy after Jeff Penrose had given similar advise two months previous. When Garry returned to Queensland I got him to take the work diaries with him for safe-keeping.

The fallout from all this became evident some weeks after my oral arbitration hearing in October 1994, when the arbitrator asked for my annual diaries for assessment. Garry Ellicott sent them directly to his office. Soon after that, Telstra submitted their defence of my claims. Then, two months later, in February 1995, Telstra advised the arbitrator that they had found discrepancies in my diaries, claiming I had added entries after the date that the calls and incidences recorded had actually occurred.

I have explained over many years as to how, and why, I’d had to copy fault complaint records into the diaries from exercise books, and affirmed that nonetheless, my chronology of fault events was true and correct. I have since reminded him and the arbitration project manager  that during my oral arbitration hearing I had practically begged to be allowed to submit these fault complaints notebooks (as the transcripts of this meeting show. But as the transcripts show Telstra had objected to the submission of these facts and the arbitrator had asserted, without viewing them, that they were irrelevant.

Nevertheless, when it came to his summary in relation to these diaries, the arbitrator stated: 

… I have considered, and have no grounds to reject the expert evidence provided by Telecom from Neil William Holland, Forensic Document Examiner, who examined the claimant’s diaries and because of numerous instances of non-chronological entries, thereby causing doubt on their veracity and reliability

I contend that if the arbitrator had allowed these notes taken from my exercise books as evidence, and provided them to Telstra’s Forensic Documents Examiner, Mr Holland would have had a clear understanding of what the exercise books really were and would have realised there was no attempt at deception. On a similar note, I suppose that some readers might be wary of accepting all I write here as truth, as I am aware that some of it seems so outlandish.

Yet during his time as Minister for Communications in the early 1990s, Senator Kim Beazley was concerned at how Telstra’s Protective Services Unit spied on its own technicians and other employees, documenting their movements while they were on sick leave, so I do not think it unreasonable that we COT members believed we also were being spied on.

For one instance, in July 1992 I had asked Telstra for a written guarantee that my phone service was up to network standard. I wrote this request to Telstra without ever mentioning the name of the bus company who had asked for the guarantee, but in 1994, among documents sent in response to one of my FOI requests, I found a copy of the letter I had written, on which the name ‘O’Meara’ had been scrawled. Had Telstra been listening to my phone conversations? If so, this was spying, way back in 1992, long before the arbitration process began. These issues of an individual’s right to privacy and a corporation’s manipulation of the system go to the core of Australian democracy.

Trying to produce a claim in some readable form when the story was so complex, multi-layered, and complicated by long-delayed access to necessary information, was extremely difficult. My phone and fax lines became life-lines to Garry Ellicott in Queensland.

When Garry attempted to ring me on 27 May 1994 on my 1800 service he twice reached a recorded announcement telling him my number was not connected before he finally got through. When Garry rang Telstra fault centre to complain about these voice messages the operator told him she could not register the fault because the complaint had to come from the customer. Garry’s response was understandably blunt. ‘How,’ he asked, ‘can the customer complain if he doesn’t know I’m trying to reach him? How can he complain if he is not aware that his incoming callers believe he’s no longer trading?’ When my telephone account arrived I had, of course, been charged for both failed calls. 

On the subject of these recorded announcements, the Austel report observed:

Monitoring equipment at the exchange will not identify this condition as the call will either not be received at the terminating exchange or it will be seen as a call existing from the exchange. Complementary equipment at the customer’s premises will not record a call being received in either of the above circumstances

I had been fighting for more than six years and still I was caught in a game of ‘catch up tennis’. As each new fault appeared I had to lodge an FOI request for Telstra data and each request would take at least 30 days to bring results. No sooner had I faxed information to the arbitrator detailing the previous month’s faults than more occurred and I had to wait, again, for another 30 days to get copies of Telstra’s records. If anyone heard my tales of frustration, they apparently didn’t care.

Hackers For Justice

A Man With A Conscience

On page 15 in the novel The Most Dangerous Man In The World by Andrew Fowler, he makes the following statement:

"The Lonsdale Telephone Exchange in the centre of Melbourne with its black marble facade, is an eye-catching building. In the last 1980s it was the gatway to other telephone exchanges and organisations linked to super computers around the world".

The information on Bad Bureaucrats - Taking on the Establishment and Chapters 1 to Chapters 9 of Julian Assange Hacking are all related to the following discussion Graham Schorer (COT spokesperson) had with a group of young hackers who we now believe were Julian Assange and his friends. These young hackers contacted the group during the early part of COT arbitrations.

That the hackers informed Graham Schorer they had broken into.the Melbourne Lonsdale Telephone Exchanges.  

In June 1993, more than twenty years before Andrew Fowler and Julian Assange had ever heard of the Lonsdale Telephone Exchange, Telstra had left an unlocked briefcase at my premises; it revealed that the Lonsdale Telephone Exchange had poorly been programmed and that the Ericsson AXE telephone exchanges equipment being used by Telstra in their telephone exchanges were known to be suffering significant faults.

On 4 and 5 June 1993, I freely provided AUSTEL (the then government communications regulator this evidence without copying much of it because of my limited copying facilities. A facsimile machine and a roll system were OK for faxes arriving, but that was its fundamental limitation. Later AUSTEL's Queens Road Melbourne office discovered from reading further documents that it became apparent other countries around the world were now removing the Ericsson AXE equipment from their exchanges or had removed it from their exchanges. So why was Telstra still using this equipment that destroyed businesses throughout Australia?

I provided the AUSTEL with further damaging information concerning the weaknesses in Telstra's Melbourne Lonsdale Exchange which showed that 50 per cent of my Melbourne telephone callers from Melbourne calling into my business at Cape Bridgewater 430 kilometres away were trunked through the Lonsdale Exchange. Telstra had somehow forgotten to programme the first six digits 055 267 of the Cape Bridgewater telephone exchange into the system for at least eight months. While this was bad enough, those callers received a recorded electronic message telling them my business was no longer trading.

So, when we were offered documents from an unknown source stating the hackers had gained access to Telstra's Melbourne Lonsdale Telephone Exchange which we knew was linked to the outside world, alarm bells began to ring. We were being offered emails and faxes proving Telstra and others had us COT Cases under electronic surveillance during our arbitration; we thought this might be set up. Was the Lonsdale Exchange the carrot to trap us into accepting documents outside of the arbitration process? Therefore, we declined to take the documents on offer.  

A statutory declaration prepared by Graham Schorer (COT spokesperson) on 7 July 2011 was provided to the Victorian Attorney-General the Hon Robert Clark. This statutory declaration discusses three young computer hackers who phoned Graham to warn him during the 1994 COT arbitrations. The hackers had discovered Telstra and others associated with our arbitrations were acting unlawfully towards the COT group. Graham’s statutory declaration includes the following statements:

“After I signed the arbitration agreement on 21st April 1994 I received a phone call after business hours when I was working back late in the office. This call was to my unpublished direct number.

“The young man on the other end asked for me by name. When I had confirmed I was the named person, he stated that he and his two friends had gained internal access to Telstra’s records, internal emails, memos, faxes, etc. He stated that he did not like what they had uncovered. He suggested that I should talk to Frank Blount directly. He offered to give me his direct lines in the his  Melbourne and Sydney offices …

“The caller tried to stress that it was Telstra’s conduct towards me and the other COT members that they were trying to bring to our attention.

“I queried whether he knew that Telstra had a Protective Services department, whose task was to maintain the security of the network. They laughed, and said that yes they did, as they were watching them (Telstra) looking for them (the hackers). …

“After this call, I spoke to Alan Smith about the matter. We agreed that while the offer was tempting we decided we should only obtain our arbitration documents through the designated process agreed to before we signed the agreement.” 

Chapter 6

Arbitration

It is time I introduced Cathy. We met in 1993 when she brought a group of underprivileged children to the camp from Ballarat. She was a very warm and competent coordinator in the field of family support. We stayed in touch after that, and she assisted me from Ballarat in various camp operations over the next year or so. Then in May 1994, she agreed to come and work at the camp while I concentrated on my arbitration. By the end of the year, we were partners.

Her assistance was timely, for in the course of preparing for my arbitration came new nightmares. I discovered things I thought I’d faxed to my advisers or to the arbitrator had not got through. I was regularly contacting Austels two nominated representatives with evidence of pages of my faxes which came out at the receiver’s end as blank pages, often with a small symbol at the top of each page, on the left or the right.

And, of course, Telstra charged me for these blanks (as it also continued to charge me for unconnected 1800 calls), each of these pages appearing on my Telstra account in terms of minutes to transmit. I asked Telstra repeatedly, in writing and through various legal processes, why these pages should arrive at the other end as blanks, but I never received an answer.

I told my arbitrator I believed he was not receiving all the faxes I was sending him. Regarding one instance, on 23 May 1994, Telstra insisted the problem had occurred because the arbitrator’s fax was busy when my fax was attempting to get through. Whatever happened to my fax, hearing a busy signal and trying again? And besides, why was I charged for the call? In fact, my phone account showed, on this day, charges for seven non-connected calls to the arbitrator’s office. The question is, where did those seven faxed claim documents end up? It is clear who benefited from their disappearance, but still, the arbitrator was not interested in investigating this.   

Because of the need to be in constant contact with Garry Ellicott and George Close, my claim advisors in Queensland, my Telstra account for this period reached more than $16,000 by May 1995. My home account was another $2000. Telstra, meanwhile, had set up a special office just to deal with the COT arbitrations, and in 1996 admitted that the COT arbitrations had, up to then, had cost Telstra in excess of $18 million. All this to fight a small group of small-business people who were looking only for Australian justice!

Anti-corruption policies need to be used in anti-corruption reforms and strategy. Corruption metrics and corruption risk assessment is good governance. Had these policies and good governance been in place during our arbitrations I would not be writing to the Commonwealth Ombudsman asking them to investigate why Telstra would not supply our discovery documents. The longer we were kept waiting, the longer our advisors and researchers were kept waiting, and the more it cost us to participate in this so-called ‘fast tracked’ procedure. Telstra seemed deliberately delayed the supply of the discovery documents, giving them more time to prepare their defence or giving their legal unit more time with the discovery documents before our advisors saw them. Either way, it seemed to me the whole arbitration was being orchestrated by Telstra as an exercise in thwarting any investigation into their dubious conduct. Certainly an exercise in power imbalance, with the arbitrator weighing in on their side in a myriad of ways.

The FOI documents were unreadable or totally blank

In June 1994, I was obliged to ask the arbitrator for extra time to prepare my claim and was allowed one extra week. By contrast, the records show that Telstra was allowed an extra 72 days. A Telstra representative was in the arbitrator’s office when Graham Schorer and I arrived with my interim claim documents on 15 June 1994. My documents were taken away by Telstra’s defence counsel. I could not understand how the arbitrator could allow Telstra access to my interim claim documents when he knew I was still waiting for vital discovery documents to complete my submission. Moreover, the arbitration rules were clear that Telstra was allowed only one month to prepare their defence of my claim, but they did not present that defence until 12 December 1994, six months later.

On 11 July 1994, Steve Black, Telstra’s arbitration resource unit, writes to Warwick Smith, stating:-

Telecom will also make available to the arbitrator a summarised list of information which is available, some of which may be relevant to the arbitration. This information will be available for the resource unit to peruse. If the resource unit forms the view that this information should be provided to the arbitrator, then Telecom would accede to this request.

The statement in Telstra’s letter: -

 “if the resource unit forms the view that this information should be provided to the arbitrator.”

This confirms that both the TIO and Telstra were aware that the TIO-appointed resource unit had been assigned to vet most, if not all, the arbitration procedural documents en route to the arbitrator

If the resource unit decided a particular document was not relevant to the arbitration process, it would not be passed on to the arbitrator or other parties. This particular secret deal has been linked to further clandestine dealings and is discussed further on our website link  (see Telecommunication Industry Ombudsman/Chapter Four.  Could this secret deal be directly related to the very important 24 January 1995 arbitration letter, which is discussed later in our story which the TIO states did not exist when our exhibit file shows it did exist and was clearly received at the arbitrator’s office as the 24 January 1995 fax-footprint shows,

The Telecommunications Industry Ombudsman (TIO) is an Australian National Telecommunications Industry Regulator, which seems like a good idea except that this Ombudsman is funded by the telecommunication carriers themselves, which means that it can hardly be called impartial, on any level, but particularly when they are involved in an arbitration, and their wages are actually paid by the defendants in that arbitration!

It is also important to point out that page 5 of the Commercial Arbitration Act 1984, under Part 11 – Appointment of Arbitrators and Umpires states:-(6) Presumption of single arbitrator

An arbitration agreement shall be taken to provide for the appointment of a single arbitrator unless –
(a) the agreement otherwise provides; or
(b) the parties otherwise agree in writing.

The arbitration agreement the four COT Cases, signed in April, 1994 mentions only one arbitrator.  They have never seen any written agreement that allows the seond -appointed arbitrator to determine what information the first-appointed arbitrator may see or may not see. 

 

Ann Garms, Graham Schorer and I only found out after our arbitrations had been concluded that these exonerated consultants had been given a secret charter by Warwick Smith with the approval of Telstra's arbitration defence officer Steve Black to vet all of the arbitration material going to the arbitrator Dr Gordon Hughes and that they were allowed to decide on what was viewed by the arbitrator and then passed onto us three claimants. 

Hiding behind a tainted confidentiality agreement - Section three

Although the 19th April 1994 Arbitration Agreement issue has been addressed elsewhere on absentjustice.com, it is important to link it here to the issue when the arbitrator's secretary faxed a copy of the FTAP Agreement to lawyers, Mr Goldberg and William Hunt. Mr Hunt was seeking a legal opinion on the agreement before Graham Schorer and I were to sign it on 21st April 1994.  The following three clauses are included on page 12 of the version of the agreement faxed by the arbitrators secretary:-

Clause 24: Neither the Administrator nor the Arbitrator shall be liable to any party for any act or omission in connection with any arbitration conducted under these Rules save that the Arbitrator (but not the Administrator) shall be liable for any conscious or deliberate wrongdoing on the Arbitrator’s own part.

Clause 25: The liability of Ferrier Hodgson and the partners and employees of Ferrier Hodgson for any act or omission in connection with any arbitration conducted under these rules (other than in relation to a breach of their confidentiality obligations) shall be limited to $250,000 jointly.

Clause 26: The liability of DMR Group Australia Pty Ltd and the directors and employees of DMR Group Australia Pty Ltd for any act or omission in connection with any arbitration conducted under these rules, other than in relation to a breach of their confidentiality obligations) shall be limited to $250,000 jointly.

In the agreement presented to the COT claimants for signing two days later, on 21st April 1994, clauses 25 and 26 were removed and only some of the wording was added to clause 24

The final version of Clause 24 reads: “Neither the Administrator, the Arbitrator, the Special Counsel, a partner or employee of the legal firm of which the Special Counsel is a partner, a member of the Resources Unit, Ferrier Hodgson or a partner or employee of Ferrier Hodgson, DMR Group Australia Pty Ltd shall be liable to any party…”

Clause 24 now had a different meaning to that presented by the original three separate clauses and it freed Peter Bartlett and Minter Ellison from any risk of being sued for misconduct in their role as Legal Advisors to the process and thereby provided no incentive for them to ensure the COT claimants were involved in a fair and just process.

The altered clause 24 also has the original $250,000 liability cap against FHCA and DMR removed from the Arbitration Agreement faxed to Mr Goldberg and William Hunt on 19th April 1994.

This letter in June 1994, from Telstra’s Arbitration Liaison Officer to the TIO Special Counsel, who had been exonerated from all liability for his part in the first four COT arbitrations, included the new version of the arbitration agreement that would be used for the next 12 COT claimants. Point 11.2 of this new agreement states that

“The liability of any independent expert resource unit used by the arbitrator, for any act or omission on their part in connection with the Arbitration, shall be limited to $250,000.00″.

Thus, a few months after the $250,000 liability caps had been removed from my arbitration agreement, they were reinstated into the agreement for the remaining 12 COT claimants. Why were the claimants NOT advised of the reinstatement of the liability clauses? Why were we not offered the opportunity to go back to the original agreement that the arbitrator’s secretary had faxed to Alan Goldberg and William Hunt (our lawyers) as the approved final agreement? Why were the three claimants (including me) forced to continue with an arbitration agreement that allowed the Resource Unit to be safely exonerated from all liability, YET in the agreement used by 12 other COT claimants; they were mandated to conduct those arbitrations within the law? Three COT claimants, Graham Schorer, Ann Garms and I, were discriminated against, without question. Exhibit Hacking-Julian Assange File No/42 is from the TIO’s Standard Arbitration Rules used for other COT-type claims against the Telstra Corporation. Liability is covered in Rule 31, which states:

“The liability of any independent expert used by the Arbitrator is limited to $250,000 for any act or omission on their part in connection with the Arbitration”.

This means that any Australian citizen who enters into a TIO-administered arbitration could sue any independent expert used by the arbitrator, to the limit of $250,000 “for any act or omission on their part in connection with the Arbitration”. Graham Schorer and I were not afforded these same entitlements. This was, in fact, illegal as well as discriminatory. That the defendants (Telstra) in an arbitration were able to discuss with the official administrator of the process (in this case the TIO) whether certain discovery documents or pieces of evidence should be released to the arbitrator, and even whether they should be released at all, shows just how much control the defendants (Telstra) had over the administrator.

If this forced removal of the $250.000.00 liability caps for one section of the COT group and not all of the COT cases is not criminal discrimination by Australia's Establishment of the worse possible kind, then what is.  

Maureen Gillan was the first of the four COT Cases to sign her arbitration agreement with 10.2.2, 24, 25 and 26 firmly in place. COT Cases Ann Garms, Graham Schorer, and I advised our legal advisers that Maureen Gillan had signed her agreement. Our lawyers asked the arbitrator's office to fax a copy of the agreement that Maureen had signed. Our lawyers compared the faxed arbitration agreement with Maureen's signed agreement, advising us to do the same.

After considering it was not worth fighting over, I accepted the removal of 10.2.2 as a compromise. 

The minutes of a secret meeting (see Chapter 5 Fraudulent conduct) with Steve Black (Telstra's arbitration officer), Telstra's Mr Krasnostine (legal directorate), Dr Hughes (the arbitrator), Peter Bartlett (TIO Counsel) in Chapter 5 Fraudulent conduct show this meeting discussed alterations to the arbitration without the claimants being represented. Telstra's transcript of this meeting notes at point six that:

“Mr Bartlett  stated that he was unhappy that Telecom did not appear prepared to allow his firm an exclusion from liability. …

“Mr Smith  stated that he thought it was reasonable for the advisers to incur some liability, and that the only matter left to be negotiated on this issue was the quantum of the liability caps.

“Mr Black  said that he thought the liability caps proposed by Telecom in the amended rules were already reasonable.” (See Open letter File No 54-A)

The fact that Warwick Smith stated: "he thought it was reasonable for the advisers to incur some liability, and that the only matter left to be negotiated on this issue was the quantum of the liability caps,  shows the liability caps were always supposed to have been in our arbitration agreement the same agreement that Maureen Gillan signed. 

 Since the conclusion of my arbitration all parties, icluding Telstra, the arbitrator, Peter Bartlett and TIO Warwick Smith are using the confidentlity agreement (attached was attached to the altered agreement) as the reason they will not discuss the secret alterations to clauses, 24,25 and 26 and the other unlawful conduct that festered all the arbitrations. 

In Open letter File No 54-B is a letter dated 12 April 1994 from Dr Hughes to a member of the TIO counsel. This letter discusses how to overcome that one of the four COT cases (Maureen Gillan) had already signed the arbitration agreement on 8 April 1994. This version was the agreement Senators Richard Alston and Boswell, all four COT cases and their lawyers agreed to. But now, John Rundell’s arbitration resource unit wanted to be exonerated from all liability for any act or omission in connection with the remaining three arbitrations. Removing the $250,000 liability caps from the original agreed-to agreement removed any incentive for the resource unit to act responsibly towards the three remaining claimants. And as our Open letter File No/45-A to 45-I and File No/46-F to 46-J show this is what happened: i.e., the arbitration resource unit withheld some of the most important relevant documents from my arbitration process – aware they could NOT be sued for that unacceptable conduct.

Service Verification Testing, September 1994

On 29 September 1994, when this SVT process was supposed to bee carried out,  my partner and I sent individual statutory declarations to the arbitrator, the TIO, AUSTEL and Telstra and I continued to write letters regarding this failed process until 15 February 1995 (see Bad Bureaucrats File No/15). After my letters to the TIO and arbitrator on 2 and 10 October 1994, I telephoned the TIO’s office to demand that, as administrators of my arbitration, they call on DMR Australia Pty Ltd, the organisation assigned to assess any technical matters that arose, to fulfil their role in relation to the SVTs: my request was denied.

A Telstra internal email, dated 13 December 1993, shows AUSTEL’s deputy chair Dr Bob Horton allowed Telstra to limit their mandatory parameter testing to only those customers that Telstra stated required testing, i.e.,

“This E-Mail is to alert you to a possible regulatory interaction with the current work on ‘COTS Cases’ and ongoing work with AUSTEL on network performance.

“As you know, a Ministerial Direction gave AUSTEL power to set end-to-end network performance standards. …

“The AUSTEL staff member leading the group originally wanted a very wide list of mandatory parameters but after discussion with Bob Horton and a presentation to the Standards Advisory Committee by , AUSTEL have agreed to limit the scope of the initial work to the few parameters our customer surveys had shown as being of most concern.” Arbitrator File No/72

Dr Horton was AUSTEL’s acting chair at the time. It is easy to see just how bad this situation was for me by simply linking this limiting of the mandatory testing with another Telstra internal email, dated 15 November 1993, which states that:

“Parameters for Cape Bridgewater RCM have been obtained, but I don’t believe them – I am attempting to check them. Some of the people supplying this information live in ‘old Telecom’!” (See Arbitrator File No/73)

The following is from the transcript of an oral interview of AUSTEL’s representatives, Bruce Matthews and John McMahon, conducted at the Commonwealth Ombudsman’s Office on 22 September 1994. On page 7 of this transcript, John Wynack asks, “What was the date the report was issued, the AUSTEL report?”

AUSTEL’s representative replies, “The final report was April – I can’t remember the date in April, but April 1994. The draft report was produced in March 1994 and Telecom received their copy of that at the time.” (As we have shown throughout this website, See Falsification Reports File No/4)

While this statement by one of AUSTEL’s representatives makes it clear Telstra received a copy of AUSTEL’s draft findings, NONE of the information in this report, which enabled the government communications regulator (AUSTEL) to arrive at their adverse findings against the Telstra Corporation, was ever made available to the COT claimants during their arbitrations. The version we received in 2007 was certainly not the draft version we viewed in the lock-up meeting.

PLEASE NOTE:

Meanwhile, on 29 September 1994, Telstra’s Chief Engineer brought Service Verification Testing (SVT) equipment to the Camp. Telstra was obliged to prove that there were no longer any phone problems. Right from the start, this engineer experienced major problems getting the equipment to work on any of our three separate lines. Nevertheless, he went ahead with his testing.

No calls were able to reach the camp, so Telstra technicians at the exchange were generating calls for testing purposes. Whatever the results, they had to be totally meaningless because the fact was true incoming calls were not received. On 2 October and 10 October, I complained to Telstra about these deficiencies in the verification testing and sent copies to the arbitrator, the TIO, and Austel. There was no response whatsoever to our statutory declarations.

However, six weeks later, Austel responded, writing to Telstra expressing concerns about the SVT testing process as it was conducted on 29 September. The testing did not meet Austel’s mandatory specifications for testing. Telstra’s own CCAS data for this day confirms that not one of the tests carried out on my three lines met Austel’s testing requirements.

Nevertheless, Telstra went ahead and presented the test results in their arbitration defence. Concluding that my services were now at network standard, along with a sworn statement by this particular engineer that the tests had met all of Austel’s requirements when shows they did not meet those requirements at all.

I do not know what to call this act of blatant, intentional misrepresentation. Certainly not ethical, and I’m sure it was not legal. Why did I not do anything about this? Because I did not learn about it until 2002, seven years later and neatly outside the statute of limitations.

Had the arbitrator been made aware of the said deficiencies that Austel had raised regarding the SVT testing and that the testing could not have produced the mandatory success rate, the arbitrator, would have been duty-bound to find in my award.  In doing so, Telstra was operating outside their licence agreement by not supplying a level playing field to operate my business on the same terms as my competitors.

Austel, for its part, seemed quick to forget its letter of 16 November. In its quarterly report on the COT Cases to the Minister for Communications and the Arts in February 1995, it withheld its true findings and stated baldly that:

All six of the telephone services subjected to the Services Verification Tests have met or exceeded the requirements established. 

What happened to Austel to make it change its tune?

My oral hearing was arranged for 11 October 1994. This hearing followed the submission of the interim claim documents. It was for the purpose of determining for the arbitrator what other information each party might need to supply to assist the process — the documents I needed to access from Telstra, and vice versa. I also asked that Telstra’s failure to supply FOI documents in a proper and timely fashion be raised at the hearing.

The arbitration rules allowed me legal representation if Telstra had legal representation, but where would I find the money to pay a lawyer who wouldn’t buckle under the power of a corporation as huge as Telstra? At least 43 of Australia’s largest legal firms were, at that time, on the payroll of Telstra in one way or another, making them unavailable to any COT member.

In August, five months into the arbitration process, the TIO, in his role as administrator to the arbitration, informed me that the arbitrator himself was a senior partner in a legal firm that was also working for Telstra at the same time. I protested that this surely represented a conflict of interest, but the TIO assured me this was normal practice; he wanted merely that I confirm, in writing, that I had been informed of this situation. Five months too late. What could I do? I saw no choice but to continue with the arbitration and participate in the oral hearing.

I had been advised by the arbitrator that Telstra would not have a lawyer present at the oral hearing, which was a relief, and I went to the hearing believing this would be, more or less, a meeting of equals. How foolishly wrong I was. On Telstra’s side of the table sat two of Telstra’s top executives, both men with legal training. I felt like David up against Goliath. How could I not have known it would be like this?

During the hearing, I produced four-fault logbooks containing, amongst other things, the contact information of over-40s singles clients who had not been able to reach my business by phone. I asked to have these books accepted into the procedure. I had not submitted them earlier, I explained because the information had been given in confidence. I trusted that by submitting them directly into the care of the arbitrator, the information would be secure. The supplied books demonstrated conclusively that I had, in fact, lost business calls as a direct result of faulty phone service. It also detailed that I had also missed out on the opportunity to set up a singles club which would have been another business to augment my income and keep the camp going.

Telstra insisted that the information was not relevant and should therefore not be accepted. The arbitrator concurred, and I was not allowed to submit the logbooks. At this point, I finally admitted to myself that the arbitrator was not acting impartially, nor had he been from the beginning.

The FOI issue wasn’t even touched on in the oral hearing. The arbitrator was supposed to facilitate the timely provision of requested documents to me, and many times I had asked for his assistance in this, but none of my requests was fulfilled; I suspect he didn’t even pass them on. However, he did direct me to provide some 40 extra documents and pages of attachments and further particulars that Telstra had requested through the same discovery process. I complied on every single occasion, at my own expense, but, in return, I received none of the relevant documents I had requested. Something was very wrong with this whole process.

I had been fighting for justice for more than six years. Fighting a losing and costly battle, simply because I wanted to set up business in a rural hamlet that Telstra’s senior board saw no benefit in upgrading. The oral hearing made me realise that I was truly on my own in this: the arbitrator couldn’t be relied on to be independent. I warned the other COT members of what they, too, might face. We had been conned. The TIO’s office had assured us — and the Senate — that this would be a non-legalistic process. They were taking me to the cleaners.

Over the next two months before Telstra lodged their defence of my claim, I continued to search through all the material I had, looking for something, anything, to help improve my position, hoping to find the elusive discovery documents I needed.

Interim submission

In my interim claim, I submitted a list of 183 separate faults between late 1989 and early 1994. Most of the entries on this list included the names and addresses of the people who had registered complaints with me. I also submitted copies of another 42 examples of faults logged by Telstra’s own fault centres in one 8-month period alone, from January to August in 1993. On top of these, I included for assessment more than 70 letters I had received from people over the years, describing their difficulties in reaching me by phone. Some of these letters were written by Telstra’s own employees who had felt compelled to tell the truth about what they knew of my phone problems.

Yet despite this mass of material, the arbitrator's ‘independent’ technical resource unit said in their report that ‘... a comprehensive log of Mr Smith’s complaints does not appear to exist.’ The current 2015, Senator Barry O'Sullivan (Queensland National Party) can vouch that the material was submitted by his partner at the time, Garry Ellicott. What happened to it?

The list of letters of support written to me did not appear on the list of documents received by the resource unit. Presumably, they had not been seen by the arbitrator either. This was a bitter blow. What happened to them? (See Prologue/Chapter One)

The AFP and Mr Rumble 

The Federal Police came to Cape Bridgewater to interview me in February 1994 regarding the fact that Telstra was intercepting COT case phone conversations. The evidence we COT members had assembled had convinced Austel and the Minister of Communications that Telstra had a case to answer. Under the Telecommunications Act 1991, Telstra was obliged to provide Austel, the regulator, with any data pertaining to the interception of telephone conversations with the four COT cases. Telstra had supplied nine audio tapes, which Austel then passed to the AFP.

The Federal Police wanted all documentary evidence I could supply of Telstra having intercepted my fax or telephone conversations, and I made copies of several FOI documents for them to take away. This was to have serious consequences for me.

At the end of June 1994, Telstra’s main 'thug' we shall call him 'dog' rang me about my complaints regarding the slow delivery of FOI documents I needed for preparing my arbitration claim. I had complained to the Commonwealth Ombudsman, who was now leaning on Telstra. But the 'dog' astounded me when he told me the slowness of delivery was due to Telstra needing to ‘vet’ the requested documents for any ‘sensitive material’ — because I had passed the material on to the Federal Police. This was preposterous on at least two counts. First, the slow delivery had been going on since my first request for FOI documents. Second, it was my civic, if not legal, duty to cooperate with any police investigation. It was certainly not a subject that a telecommunication corporation should have any jurisdiction over.

But that wasn’t all. The 'dog' then said that I would not be provided with any further documents if I continued to pass them on to the AFP. This I understood as a clear threat to withhold critical FOI documents necessary to support my arbitration claim. I assured him I would not. A few days later, I wrote to affirm this with the 'dog':

I gave my word on Friday night that I would not go running off to the Federal Police etc., I shall honour this statement and wait for your response to the following questions I ask of Telecom below. 

And indeed, I had no intention of providing the AFP with any more FOI documents. When the AFP visited me again in September 1994, I showed them a copy of my letter to the 'dog', which they found very interesting as their transcript of the interview shows:

The thing that I’m intrigued by is the statement here that you’ve given 'the dog' your word that you would not go running off to the Federal Police, etcetera. Question 57, p. 12 Australian Federal Police Investigation File No/1

But I did, in July, write to inform the arbitrator that Telstra had threatened to withhold further FOI documents because I had supplied them to the Australian Federal Police to help with their investigations into Telstra’s interception of my telephone conversations. The arbitrator did not respond to my letter, nor did he comment when the issue was raised in parliament.

Threats Carried Out

On 29 November 1994, Senator Ron Boswell asked Telstra’s Legal Directorate:

Why did Telecom advise the Commonwealth Ombudsman that Telecom withheld FOI documents from Alan Smith because Alan Smith provided Telecom FOI documents to the Australian Federal Police during their investigations?

Why would Telecom withhold vital documents from the AFP? Also, why would Telecom penalise COT members for providing documents to the AFP which substantiate that Telecom had conducted unauthorised interceptions of COT members’ communications and subsequently dealt in the intercepted information by providing that information to Telecom’s external legal advisers and others?

That Telstra’s Legal Directorate had no answer for these two questions was understandable. That the arbitrator could not even ask the questions why I should be penalised for carrying out my civic duty in an official police investigation was not. Months before he handed down his award, my arbitrator's silence told me that the result would not favour my complaints of ongoing telephone and faxing problems.

But it is not just the arbitrator who let me, and the course of justice, down. No one in the TIO office, Austel, or the government was prepared to investigate either.

And what about the threats made against me by Telstra management before I went into arbitration that if I did not raise my phone complaints in writing with (Telstra's outside lawyers) then Telstra would not investigate those complaints.  

Why didn't the arbitrator combine these threats made against me as a serious breach against my civil liberties as an Australian citizen?

Why weren't these threats addressed in the arbitrator's written findings?

 

Chapter 7

Telstra’s defence

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

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

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

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

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

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

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

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

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

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

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

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

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

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

My holiday camp was certainly in a pristine location 

The tests proved the fault was in Telstra's network

When I phoned AUSTEL’s Cliff Mathieson, a public servant at the government communications regulatory department, to talk about this hang-up fault on 26 April 1994, Mr Mathieson suggested he and I carry out a series of tests on the phone line. His plan was for me to would hang up and count aloud, from one to 10, while he listened. This first test proved he could hear me count right up to 10. He suggested we try it again and count even further this time. Still the same situation: he could hear me right through the range as I counted. Then he suggested I switch the phone on that line with a phone connected to another line. I did this and we repeated the counting test, with exactly the same results. It was apparent to both of us: the fault was not in the phone itself, but somewhere in the Telstra network. Mr Mathieson suggested that, as I was in arbitration at the time, I should bring this fault to the attention of Peter Gamble, Telstra’s chief engineer. Lindsay White, a Telstra whistleblower, named Peter Gamble, in a Senate, estimates committee hearing, as the man who said he and Telstra had to stop the first COT five claimants (including me), at all cost, from proving our claims (see Senate Hansard ERC&A 36, Front Page Part One File No/23 dated 24 June 1997).

Unaware of these orders to stop us five COT cases (at all cost), I switched the phones back to their original lines and phoned Mr Gamble, but did not tell him Mr Mathieson and I had already tested two phones on the 055 267230 line. Mr Gamble and I then carried out similar tests on the 055 267230 line. Mr Gamble said he would arrange for someone to collect the phone for testing purposes on the following day. FOI K00941, dated 26 March 1994, show someone (name redacted) believed this lock-up fault was being caused by a problem in the RCM exchange at Cape Bridgewater see Tampering With Evidence File No 1-A to 1-C. Document K00940, dated the day the tests were performed with Mr Mathieson and Mr Gamble, suggests that Mr Gamble believed the problem was caused by heat in the exchange see (File No-B) where document folio R37911, states:

“This T200 is an EXICOM and the other T200  is an ALCATEL, we thought that this may be a design ‘fault???’ with the EXICOM so Ross tried a new EXICOM from his car and it worked perfectly, that is, released the line immediately on hanging up. We decided to leave the new EXICOM and the old phone was marked and tagged…” (see File No 1-C).

On 27 April 1994, Telstra collected my so-called faulty TF200 EXICOM telephone. Documents I later acquired, under FOI, show Telstra was aware this telephone fault often occurred in moisture-prone areas like Cape Bridgewater and they also knew that the local exchange suffered from heat problems. When I received my copy of Telstra’s 12 December 1994 defence of my government-endorsed arbitration process, I found it included a 29-page report titled TF200. This document reported Telstra’s laboratory testing showed the lock-up problem with my service lines was due to my actual TF200 phone.

Six years after my arbitration was supposed to have fixed this problem, I discovered this lock-up issue was not fixed at all, even though Telstra claimed to investigate it on 27 April 1994. At this time, they disconnected the EXICOM TF200 phone from the fax machine and replaced it with another EXICOM TF200, which remained connected to the fax machine until August 2001, when Telstra and I tested the 55 267230 lines, again, and proved that it was still locking up.

Photographs included in Telstra’s report show the outside of the phone was very dirty. According to the laboratory technicians, when they opened the phone up, the inside was wet and sticky. Analysis of the substance showed that it was beer and the conclusion was that beer caused the hookswitch to lock up. The obvious implication here was that my drinking habits were the cause of all my phone problems. The laboratory technicians appeared not to know that the government communications regulatory department and I had already tested two different phones on that line and still found the same fault.

Telstra FOI folio D01026/27 (Tampering With Evidence File No 2) confirms Telstra knew there were lock-up problems in moisture-prone areas affecting the EXICOM T200s manufactured after week seven of 1993. This document confirms one of the known lock-up side effects to this problem was that, while the line was that in locked-up mode, the line remained open so one party could hear the room noise of the locked-up party, after the call was, supposedly, terminated. Document D01026 confirms that instead of destroying these faulty EXICOM phones, Telstra allowed their technical staff to re-deploy some 45,000 phones back into service in areas where local technicians believed moisture was not a problem.

During my government-endorsed arbitration, I received Telstra document FOI folio number R37911, under FOI. This document shows that on the day after retrieving the TF200, Ross Anderson, a Telstra technician from Portland, tested the TF200 EXICOM fax phone at least 18 times without it once displaying this lock-up fault. Telstra FOI document folio K00942/3 Tampering With Evidence File No/1-C suggests the lock-up problem could have been related to heat or moisture or a combination of both. There is no mention in this document suggesting that alcohol spillage might have caused this problem.

Who poured the sticky beer into the EXICOM TF200 telephone 

Lies and more lies from Telstra 

After Mr Anderson completed his testing on 27 April, the phone took a further nine days to reach Telstra’s laboratory. It arrived on 6 May and laboratory testing did not commence for another four days. Ray Bell, the author of the TF 200 report, was adamant at point 1.3, under the heading Initial Inspection, that:

“The suspect TF200 telephone when received was found to be very dirty around the keypad with what appeared to be a sticky substance, possibly coffee.” (See Tampering With Evidence File No 3)

A second photo received by me, under FOI, is a photo taken from the front of the same TF200 phone, confirming a note I placed on the phone was quite clean when it was received at Telstra see Open Letter File No/37  exhibits 3, 4, 5 and 6.

This report raises a number of questions. When the phone left my office, it was quite clean. Why did it arrive at the laboratory in such a filthy state? How did the beer get inside the phone? Who would have a reason to pour beer into the phone and why? If the addition of beer was not deliberate, how did it get inside the phone? The main aim of Telstra’s submitted report, used as evidence, was to prove Telstra’s service was not the fault.

As soon as I read this beer-in-the-phone report, I put in a request to the arbitrator, asking to see a copy of all the laboratory technician’s handwritten notes so he could see how Telstra had actually arrived at their conclusion. I had appointed my own forensic document researcher to look over the documents when I received them and he provided me with his CV credentials, as well as signing a confidentiality agreement, stating he would not disclose his findings to anyone outside of the arbitration procedure. Although I passed all this information on to the arbitrator, the only response I received from the arbitrator and Telstra was a duplicate copy of the report I had already received as part of Telstra’s defence.

On 28 November 1995, six months after my arbitration ended, I received Telstra’s arbitration TF200 EXICOM report. This report confirms Telstra carried out two separate investigations of my EXICOM TF200 telephone, two weeks apart and the second test report, dated between 24 and 26 May 1994, proved that the first one, the report provided to the arbitrator, was not a true account of the testing process at all, but a total fabrication. Photos and graphs by Telstra laboratory staff proved wet beer introduced into the TF200 phone dried out completely in 48 hours. As mentioned above, Telstra collected my phone from my business on 27 April 1994, but it was not tested until 10 May – a gap of 14 days. Various pages (see Tampering With Evidence File No/5) confirm that, even though Telstra knew its second investigation proved the first arbitration report, dated between 10 and 12 May 1994, was more than fundamentally flawed, it still submitted the first flawed report to the arbitrator as Telstra’s true findings.

The marked Telstra FOI documents folio A64535 to A64562 (see Tampering With Evidence File No/5), are clear evidence that Telstra did do two separate TF200 tests on my collected phone two weeks apart. FOI folio A64535 confirms with this handwritten Telstra laboratory file note, dated 26 May 1994, that when wet beer was poured into a TF200 phone the wet substance dried up within 48 hours. The air vents within the phone itself allowed for the beer to escape. In other words, how could my TF200, collected on 27 April 1994, have been wet inside the phone on 10 May 1994 when it was tested at Telstra’s laboratories?

My eyes were sore from fighting an out-of-control fire 

Lies and more lies from Telstra

Another disturbing side to this tampering with arbitration evidence by Telstra is that for many years before this tampering took place, I was a volunteer for the Cape Bridgewater Country Fire Authority (CFA). The following chapters show that during my arbitration Telstra twisted the reason I could not be present for the testing of my TF200 telephone at my premises on a scheduled meeting on the morning of 27 April 1994. Telstra only reported in their file notes (later submitted to the arbitrator) that I refused to allow Telstra to test the phones because I was tired. There was no mention in these file notes that I advised the fault response unit that I had been fighting an out-of-control fire for 14 hours or that my sore eyes made it impossible to observe such testing by Telstra. I fought the fire the previous evening from 6 pm to 9 am the following morning.

It is clear from our Tampering With Evidence page that not only did Telstra set out to discredit me by implying I was just too tired to have my TF200 phone tested, but after Telstra removed the phone, it was tampered with before it arrived at Telstra’s Melbourne laboratories: someone from Telstra poured beer into the phone. Telstra then alleged, in its arbitration defence report, that sticky beer was the cause of the phone’s ongoing lock-up problems, not the Cape Bridgewater network. This one wicked deed, along with the threats I received from Telstra during my arbitration, is a testament that my claims should have been investigated years ago. So, even though I carried out my civic duties as an Australian citizen, over and beyond by supplying vital evidence to the AFP, as well as fighting out-of-control fires, I was still penalised on both those occasions during my arbitration.

The other twist to this part of my story is, how could I have spilt beer into my telephone as Telstra's arbitration defence documents state, when I had been fighting an out of control fire? I cerainly would not have been driving the CFA truck or assisting by fire buddies had I been drining beer. Reading this part of my story will give the reader some idea of the dreadful conduct that we COT Cases had to put up with from Telstra as we battled for a relaible phone service. 

And then, as if all this un-addressed skulduggery and secret plotting has not been difficult enough to live with for these past twenty-four years, let us take a look at the senior Telstra engineer who organised the removal of my tampered-with TF200 phone and then arranged things so that it would be held in his office from that day, 27 April 1994, until 6 May 1994 when, finally, it actually reached Telstra’s laboratories. It is important to look at this engineer because it turns out, this was the same Telstra Chief Arbitration Engineer who swore under oath, in his Witness Statement of 12 December 1994, that the Service Verification Testing process that he conducted during my arbitration had met all of the mandatory Government requirements but, somehow, the CCAS data for the day in question does not show that any SVT processes as being conducted at all, neither in connection to my phone lines nor according to Government specifications nor, for that matter, according to ANY specifications at all. Then the plot thickens, because it turns out that this is also the same Telstra engineer who, during a Senate Committee hearing on 24 June 1997, (see:- pages 36 and 38 Senate – Parliament of Australia was named by an ex-Telstra employee (Lindsey White) as the person who told Mr White that I was one of the Five COT Cases, who had to be stopped at all cost from proving our arbitration claims and, astonishingly, this is, again, the same Telstra engineer who visited my business on 6 April 1995 with the TIO-appointed arbitration resource unit, but then refused to conduct any of the suggested tests on the service line, at my business, that this tampered-with TF200 had been connected to.

Pages 5163 to 5169 SENATE official Hansard – Parliament of Australia prove beyond all doubt that systemic criminal conduct existed within the Telstra Corporation prior to and during our arbitrations.

After we four COT cases had signed our arbitration agreement, neither AUSTEL, as the government communications regulator nor the Telecommunication Industry Ombudsman (the administrator of our arbitrations) warned us that our arbitration fax and phone interception issues would be broadcast to the media as well as discussed in parliament.

Now let me make the following point quite clear, AUSTEL (now the Australian Communication and Media Authority – ACMA) was back then, and still is, promoted as Australia’s independent communications regulator, so I believed that they would reveal the truth, not just for me but also on behalf of all of Telstra’s customers. That, however, did not happen because not even one of the bureaucrats from AUSTEL/ACMA spoke up back then and, since then? Still, none of them have ever commented on the situation the COTs found themselves in.

Imagine, however, if even just one of the many bureaucrats from AUSTELL/ACMA had come forward and actually told the truth about the cause of my ongoing telephone problems, as they should have, of course, I would still own and be operating my beloved Cape Bridgewater Holiday Camp. All I needed was just that one brave and honest bureaucrat, and I would have been able to appeal the arbitrator’s appalling findings that claimed that there was then, and had never been, anything wrong with the phone system that my business was connected to.

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

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

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

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

My reply to Telstra’s defence, January 1995

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

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

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

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

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

However, the arbitrator did respond to a letter I sent asking for more information about the Bell Canada report. In his reply on 23 January 1995, he said: 

‘Telecom does not consider it has any further information of relevance in its possession.’ He asked me to respond to this within 24 hours in order to ‘be certain that there is no confusion between the parties as to the documentation which is being sought.’

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

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

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

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

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

A visit by FHCA the indepedent arbitration financial accountants

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

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

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

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

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

Although we have addressed the following Ericsson v Lanes Telecommunications ownership in our Prologue above, it is such an important conflict of interest issues that affected most if not all the COT arbitrations. We needed to again highlight this terrible situation as we have done below.   

The TIO’s letter of 16 July 1997, to William Hunt, Graham Schorer’s solicitor advised that Lane was presently involved in a number of arbitrations noting that: ‘the change of ownership is of concern’ and that...’

The first area of concern is that some of the equipment under examination in the arbitrations is provided by Ericsson.…

The second area of concern is that Ericsson has a pecuniary interest in Telstra. Ericsson makes a large percentage of its equipment sales to Telstra which is one of its major clients.

It is my view that Ericsson’s ownership of Lane puts Lane in a position of potential conflict of interest should it continue to act as Technical Advisor to the Resource Unit. …

The effect of a potential conflict of interest is that Lane should cease to act as the Technical Advisor with effect from a date shall  be determined. (See exhibit GS 296-a file GS-CAV 258 to 323)

What is just as alarming is: how long was Lane in contact with Ericsson before Ericsson purchased Lanes? Is there a link between Lanes ignoring my Ericsson AXE claim documents and the purchase of Lanes by Ericsson during the COT arbitration process?

In Chapter Seven of the AUSTEL COT Cases Report, dated April 1994, AUSTEL notes my business and a number of other COT businesses suffered major network problems associated with Ericsson AXE equipment. At point 7:40, when discussing my AXE Ericsson problems, it notes:

“AUSTEL recently became aware that Telecom (Telstra) had prepared an internal document on the subject of this AXE fault and on 21 March 1994 sought a copy from Telstra.” (See Exhibit 9 - AXE Evidence File 1 to 9)

This is the Ericsson AXE problems I wanted Lane to investigate while they were at Cape Bridgewater. Only Lane, and perhaps the arbitrator and Telstra might be able to shed some light on the subject to why neither of them would discuss these serious Ericsson AXE problems. My claim documents clearly showed the Ericsson NEAT testing equipment that Telstra used at Cape Bridgewater gave our readings that were impracticable. No one commented during my arbitration on this irritable evidence I provided to the process.

Ann, Graham and I told the TIO we did not want our claims assessed by an ex-Telstra employee and so DMR Group Canada was brought in to lead the process, with Lane merely assisting. As it turned out, however, and contrary to the written agreement given by the TIO, Lid did 99.5% of the assessments. Once more the TIO had misled the COT Cases.

One of the most important statements made by the second appointed administrator to the COT arbitrations John Pinnock, was his statement to Senate Estimates Committee on 26 September 1997 (see page 96 COMMONWEALTH OF AUSTRALIA - Parliament of Australia

stated:

Lane Telecommunications, which is one part of the technical component of the resource unit, has withdrawn from the process as a result of a conflict or perceived conflict of interest after being purchased from Pacific Star by Ericsson Australia, the major supplier of equipment to Telstra, including equipment whose performance is central to some of the claim.

What prompted Mr Pinnock to use the wording in the Senate ‘perceived conflict of interest’ when he had already written to the COT Cases lawyer stating it was his ‘view that Ericsson’s ownership of Lane puts Lane in a position of potential conflict of interest should it continue to act as Technical Advisor to the Resource Unit’?

Senator Richard Alston, the then Shadow Minister for Communications, had challenged Ericsson’s AXE equipment. In his question on notice in the Senate on my behalf, only a month before I entered arbitration (see point 25 exhibit 4-B, in file Misleading and Deceptive Conduct File 4-A to 4-L).

The government should have halted the sale of Lane because exhibits 4-E and 4-D in Misleading and Deceptive Conduct File 4-A to 4-L show Ericsson believed the problems with its AXE equipment could represent between 15 and 50 per cent call losses in some exchanges. That is a damning admission.  

It’s important we use this Senate segment again even though we need to move forward two years at this point of time in our story to the 24 June 1997, so as we can view the statements made on pages 36 and 38 of official Senate - Parliament of Australia/Hansard records. These show an ex-Telstra employee and then-Whistle-blower, Lindsay White, told the committee (under oath) that, while he was assessing the relevance of the technical information which had been requested by the COT claimants, that:

"In the first induction - and I was one of the early ones, and probably the earliest in the Freehill's (Telstra’s Lawyers) area - there were five complaints. They were Garms, Gill and Smith, and Dawson and Schorer. My induction briefing was that we - we being Telecom - had to stop these people to stop the floodgates being opened."

Senator O’Chee then asked Mr White - "What, stop them reasonably or stop them at all costs - or what?"

Mr White responded by saying - "The words used to me in the early days were we had to stop these people at all costs".

Senator Schacht also asked Mr White -"Can you tell me who, at the induction briefing, said 'stopped at all costs" .(See Front Page Part One File No/6)

Mr White - "Mr Peter Gamble and a subordinate of his, Peter Riddle. That was the introduction process”.

It is clear from Mr White's statement he identified me as one of the five COT claimants that Telstra had singled out to be ‘stopped at all costs’ from proving my claim against Telstra’. One of the named Peter's in this Senate Hansard is the same Peter Gamble who submitted a false witness statement to the arbitrator concerning the failed SVT testing at my premises on 29 September 1994. The same Peter Gamble who on 6 April 1995 arrived at my Cape Bridgewater holiday camp, and together, we collected a representative from Lane from the airport.

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

While the Lane representative was in Cape Bridgewater, I attempted to raise the incorrect billing issues. But apparently, the arbitrator had instructed Lane not to assess any new claim material. I was angry, for the arbitrator had assured me that if I discovered any new information among FOI documents, that information could be presented to the technical resource unit when they came to the camp. I had worked night after night to have my evidence prepared before the technical team arrived and it was clear to me that this new information clearly supported my allegations. I was so angry, to the point of excusing myself to dry reach in my residence adjacent to the holiday camp.

Neither the Telstra official Peter nor the Lane representative was prepared to comment on this evidence during my arbitration, although I was assured that the matter would be addressed. They left shortly after this, together — and without me, which was in direct breach of arbitration rules. Who knows what private conversations may have taken place between them? On so many counts, now, I was convinced that the arbitration was a sham, with the single aim of ‘shutting me up’ to stop the floodgates being opened." That was how serious the Ericsson problem was.

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

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

And indeed, two years later, on 28 February 1997, the Commonwealth Ombudsman’s Office presented a document to Telstra, covering all communications between my office and theirs, as part of their report to Telstra’s Corporate Customer Affairs Office. This report documented all faxes to and from me and all calls to and from my office — they made 43 calls to my 1800 account.

Bingo! Over this same period, Telstra charged me for 92 calls from the Ombudsman on my 1800 account. In their investigation, the Commonwealth Ombudsman’s Office confirmed these events.

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

It was clear from the following statement made by Telstra in FOI folio A00354 that senior management were concerned just how bad their rural network was i.e.

“I understand there is a new tariff filing to be lodged today with new performance parameters one which commits to 98% call completion at the individual customer level.

“Given my experience with customer disputes and the BCI study, this is a cause for concern. We will not meet this figure in many exchanges around Australia particularly in country areas”.

A further Telstra FOI document folio P03022 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 (this legal firm) 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 (the person I had to register my phone complaints with) for either drafting of the reply from Telecom or for the reply direct from (this same lawyer) as our agent.”(Arbitrator File No/81)

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 (Telstra’ outside lawyers) with initial acknowledgement by the Region.”

 Bribing local officials as well as an arbitrator/mediators to procure government contracts and special favours during arbitration is on the rise.

Chapter 8

My Award

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

DMR/Lanes report

There are discrepancies between the arbitrator’s and my version of Lane prepared technical consultants report titled Resource Unit Technical Evaluation Report. Mr Alan Smith. CBHC. 30 April 1995. The second paragraph on page one consists of only one short sentence: “It is complete and final as it is” (see Arbitrator File No/27). However, the second paragraph on the equivalent page (page two) of the arbitrator’s report, also dated 30 April 1993 says:

“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.” (See Arbitrator File No/28)

There is more information in the arbitrator’s version than there is in mine. The reference to my ongoing billing problems states extra weeks are required to complete the investigation. The arbitrator did NOT provide the extra weeks.

My page two of this report (see Open Letter File No/47-A to 47-D) shows no mention of my billing claim document in my version. However, page three in the arbitrator’s version notes:

“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 Technician Report on Cape Bridgewater is complete.” Open Letter File No/47-A to 47-D

How can two identical technical reports with the same 23 technical assessments, both dated 30 April 1995 and apparently both prepared by the same consultants, have one version noting that the “… case remains open, and we shall attempt to resolve it in the next few weeks”, while the other has no mention of it still being open and needing weeks to complete?

Both technical reports state: “A comprehensive log of Mr Smith’s complaints does not appear to exist.” It did exist, as did my own Bell Canada / Cape Bridgewater and Service Verification Testing (SVT-process) at Cape Bridgewater as I have shown elsewhere on this website. Had this comprehensive log of fault complaints been provided to the technical consultants to assess, they would have had to overrule the arbitrator’s decision not to allow them the extra weeks they had requested, in order to investigate my ongoing billing faults.

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

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

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

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

            ASSESSMENT – Service was less than reasonable.

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

            ASSESSMENT – Service was less than reasonable.

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

            ASSESSMENT – Service was less than reasonable.

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

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

ASSESSMENT – A reasonable level of service was provided. 

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

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

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

Corrupt practices that were systemic in my government-endorsed arbitration resulted in becoming cancer that festered my arbitration where the arbitrator who allowed this festering to continue unlanced (not addressed) was the worst possible outcome for me and my business.

FHCA (the arbitration financial consultants) submitted a doctored report

FHCA’s financial report was even more of a nightmare. It was incomplete; it did not show the workings, which resulted in their findings downgrading HTTPS ://www.absentjustice.com/evidence-files-corruption-in-arbitration/chapter-2/ my true losses by as much as 300 per cent in some areas. It was so incomplete that it was difficult to challenge it, for there was nothing substantial to grasp. The errors of logic were painfully elemental.

For instance, although the FHCA report acknowledged that my business accommodated social clubs as well as school groups —

 ‘An analysis of the clientele of Cape Bridgewater Holiday Camp shows that only 53% were in fact schools’

….(sic) it based its calculations of business losses on the lower end of my revenue base, the $30 per two overnight rates for school groups, compared to the $120 to $160 charged for the 47% that were fully catered social club patrons. Given an approximately fifty-fifty split of school and other groups, this downgraded my losses by a minimum of at least 300 per cent.

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

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

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

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

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

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

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

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

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

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

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

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

The Award, May 1995

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

On 23 May 1995, another 700 or so FOI discovery documents arrived. Why now? What was Telstra playing at? I could have used the material twelve months ago to support my claim. Ten days ago, I could have used them to support an appeal against the award. Now, the only way I could use them was if I took the matter to the Supreme Court of Victoria, an alternative that was entirely beyond my financial means, as Telstra well knew.

Mr Benjamin’s letter to me re late-released FOI documents again confirm that the COT Cases had no chance of ever receiving the justice the government assured us we would have if we went into arbitration with Telstra. This letter from Telstra’s Ted Benjamin, who was also Telstra’s arbitration defence liaison officer, held the position as a TIO Council member. I did not uncover this until the Senate exposed this conflict-of-interest issue during an official COT case FOI investigation conducted by the Senate between September 1997 and March 1999. In fact, the official Senate Hansard available on my website shows Mr Benjamin admitting he had never disclosed his conflict of interest as Telstra's official arbitration officer when the TIO office discussed COT arbitration matters at their monthly meetings.

Mr Benjamin failed to advise the same 26 September 1997 Senate FOI investigation that he had waited in my case twelve months before releasing the FOI documents that would have supported many unaddressed issues raised in my arbitration. On opening this evidence, I remember saying to myself, if only I could have received these most relevant documents during my arbitration or even four weeks previous during my designated arbitration appeal period, I would have been able to successfully appeal part of the arbitrators' award.

On opening this evidence, I remember saying to myself, if only I could have received these most relevant documents during my arbitration or even four weeks previous during my designated arbitration appeal period, I would have been able to successfully appeal part of the arbitrators' award.

However, this was wishful thinking. In the covering letter from Mr Benjamin dated 24 May 1995 under the heading “Your FOI the request of May 1994” includes the following: 

“Further documents have recently come to light that fall within your FOI request of May 1994.

Copies of these documents are enclosed. At this time a table has not been prepared giving decisions in relation to these documents as it was considered by Telecom more important you receive copies of the documents now.” (Refer to exhibit AS 183 File AS-CAV 181 to 233

It was clear from some of these documents that Telstra was fully aware they had a national network billing software problem. Was this the reason Telstra withheld these relevant billing documents for the whole period of my claim?

 

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,-), 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. 

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.

Corrupt practices that were systemic in my government-endorsed arbitration resulted in becoming the cancer that festered my arbitration where the arbitrator who allowed this festering to continue unlanced (not addressed) was the worst possible outcome for me and my business.

DMR/Lanes (the arbitration technical consultants) submit their incomplete report 

Although I have addressed the discrepancies in the two varying DMR & Lane reports above, it is essentional I revisit them again: i.e.:

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.    

Dr Hughes wrote to the TIO on 23 January 1996, noting:

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

(a) the cost of responding to the allegations;

(b) the implications to the arbitration procedure if I make a full and frank disclosure of the facts to Mr James.”. Open letter File No/45-D

It is confirmed from Chapter Three in our Prologue page (see below) that not only were these 24,000 documents not viewed by Dr Hughes and his resource unit it was he who refused me the extra time I had requested to submit two reports (into arbitration) which I had collated from these late received 24,000 FOI documents aware because they actually were supposed to have been freighted to Brisbane airport instead of the Portland airport 1,200 miles in the wrong direction (as we have stated below). Dr Hughes lies to Laurie James cost me dearly and continues to cost me dearly until these lies are investigated.

Most of these 24,000 FOI documents, I averaged that amount to be 17,000, were sent to Queensland after they were picked up from my office by Graham Schorer, COT spokesperson, who then had them couriered to COT Cases Ann Garms and Maureen Gillan in Brisbane Queensland. Those documents were all labelled Ann Garms; four of those manila folders were stamped, Gillan. How could Dr Hughes (the arbitrator in my case) and his arbitration resource unit have viewed 24,000 FOI documents when they were never submitted to arbitration.  

Had Dr Hughes sidestepped John Pinnock, and instead made full disclosure of the true facts surrounding my claims, the matters I am discussing on absentjustice.com would have been addressed in 1996. By reading all of Open Letter File No/51-A to 51-G and Chapters One to Four in our Prologue page, you can decide for yourself who is telling the truth concerning these late-released 24,000 alleged-read documents.

Because the poor timeframes in the arbitration agreement did not allow for the late submission of information, such as my singles club material, Dr Hughes granted the remaining three COT cases, Ann Garms, Maureen Gillan and Graham Schorer, more that 13 months longer than he allowed me, in which to submit late-received material. Why didn’t Dr Hughes advise Laurie James of this? All four of us signed the same arbitration agreement in April 1994.

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. see Open Letter File No 55-A. 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.

However, what must be revealed in my story is the possibility that this 12 May 1995 letter was hacked as the following information shows.

I use the Senate Hansard records of 20 September 1995, showing a very emotional Senator Ron Boswell discussing the injustices we four COT claimants (i.e., Ann Garms, Maureen Gillan, Graham Schorer and I) experienced during our so-called government-endorsed arbitrations, in the previous chapter. It is also most important to raise the following statement made by Senator Boswell, concerning the TIO and his annual report:

“I regard it as a grave matter that a government instrumentality like Telstra can give assurances to Senate leaders that it will fast track a process and then turn it into an expensive legalistic process, making a farce of the promise given to COT members and the inducement to go into arbitration. The process has failed these people and can never give them justice – a point confirmed by professionals deeply involved in the arbitration process itself and by the TIO’s annual report, where conclusion is described as ‘if that is ever achievable’.” (See Senate Hansard Evidence File No-1)

Senator Boswell’s statement that “a point confirmed by professionals deeply involved in the arbitration process itself and by the TIO’s annual report, where conclusion is described as ‘if that is ever achievable’,” shows, by the date of this Senate Hansard on 20 September 1995, the TIO had already condemned the arbitration process. So why did Mr Pinnock (TIO) and Dr Hughes, eight months later, conspire to mislead and deceive Laurie James concerning the truth of my claims, which were registered with the proper authority, i.e., the president of Institute of Arbitrators Australia?

Living with the knowledge that these lies were told by the very same person who actually had the power to investigate them, but did not, is mind-destroying. Also, mind-destroying for the new owners of my business who purchased my holiday camp in December 2001, is that regardless of them complaining to the Communications Minister’s office my local Federal Member of Parliament, and Mr Pinnock from very early in January 2002 to September 2006 (see Bad Bureaucrats/Chapter One and Chapter Four) they had inherited the same type of phone problems that I had suffered with since 1987, no one re-investigated what went wrong during my arbitration in order to stop the arbitrator from allowing his arbitration resource unit the extra weeks they stated was needed to complete their findings (see Chapter 1 - The collusion continues).

Why did Dr Gordon Hughes bring down his award on my arbitration claims when he was aware:

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

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

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

Why did the arbitrator amend the arbitration agreement for the remaining three COT cases allowing those claimants thirteen more months to access their documents from Telstra (the defendants in all four arbitrations) than he allowed me?

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

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

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

How could Dr Hughes even contemplate making a statement like: “…as far as I could observe, both Telecom and Smith co-operated in the Smith arbitration”, let alone decide to include it in his 12 May letter, when he and the Senate had already been warned that Telstra was threatening to withhold further relevant documents from me, simply because I had agreed to assist the Australian Federal Police with their investigations into Telstra’s unauthorized interception of my phone conversations and faxes and, even worse than that level of Telstra treachery, Telstra then actually carried out those threats?  And what about the advice that both the arbitrator and Warwick Smith had received on 18 April 1995 (see above), which stated clearly that there had been ‘forces at work’ that had ‘derailed’ my arbitration?  This 12 May statement shows that Dr Hughes was quite clearly choosing to protect those ‘forces at work’, regardless of the serious problems that created for me.

Interception of this 12 May 1995 letter by a secondary fax machine:

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

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

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

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

Interception of this 12 May 1995 letter by a secondary fax machine is discussed in more depth in our Australian Federal Police Investigations page

And at worse fabricated, 

On 15 July 1995, two months after the arbitrator prematurely brought down his findings on my claim, AUSTEL’s previous General Manager of Consumer Affairs, aware that the arbitration process had not addressed my claims concerning the impracticability of CCS7 being used in the BCI testing at Cape Bridgewater. Ms Amanda Davis provided me with an open letter noting: noting:

“I am writing this in support of Mr Alan Smith, who I believe has a meeting with you during the week beginning 17 July.  I first met the COT Cases in 1992 in my capacity as General Manager, Consumer Affairs at Austel. The “founding” group were Mr Smith, Mrs Ann Garms of the Tivoli Restaurant, Brisbane, Mrs Shelia Hawkins of the Society Restaurant, Melbourne, Mrs Maureen Gillian of Japanese Spare Parts, Brisbane, and Mr Graham Schorer of Golden Messenger Couriers, Melbourne. Mrs. Hawkins withdrew very early on, and I have had no contact with her since.

The treatment these individuals have received from Telecom and Commonwealth government agencies has been disgraceful, and I have no doubt they have all suffered as much through this treatment as they did through the faults on their telephone services.

One of the striking about this group is theur persistence and enduring belief that eventually there will be a fair and equitable outcome for them, and they are to admired for having kept as focussed as they have throughout their campaign.

Having said that, I am aware all have suffered both physically and their family relationships. In one case, the partner of the claimant has become seriously incapacitated; due, I beleive to the way Telecom has dealt with them. The others have al suffered various stress related conditions (such as a minor stroke.

During my time at Austel I pressed as hard as I could for an investigation into the complaints. The resistance to that course of action came from the then Chairman. He was eventually galvanised into action by ministerial pressure. The Austel report looks good to the casual observer, but it has now become clear that much of the information accepted by Austel was at best inaccurate, and at worst fabricated, and that Austel knew or ought to have known this at the time.” 

After leaving Austel I continued to lend support to the COT Cases, and was instrumental in helping them negotiate the inappropriately named "Fast Track" Arbitration Agreement. That was over a year ago, and neither the Office of the Commonwealth Ombudsman nor the Arbitrator has been succsessful in extracting information from Telecom which would equip the claimants to press their claims effectively. Telecom has devoted staggering levels of time, money and resources to defeating the claiams, and there is no pretence even that the arbitration process has attemted to produce a contest between equals.

Even it the remaining claimants receive satisfactory settlements (and I have no reason to think that will be the outcome) it is crucial that the process be investigated in the interest of accountabilty of publical companies and the public servants in other government agencies. 

Because I am not aware of the exact citrcumstances surronding your meeting with Mr Smith, nor your identity, you can appriate that I am being  fairly circimspect in what I am prepared to commit to writing. Suffice it to say, though, I am fast coming to share the view that a public inquiry of some discripion is the only way that the reasons behind the appalling treatent of these people will be brought to the surface.

I would be happy to talk to you in more detail if you think that would be useful, and can be reached at the number shown above at any time. 

Thank you for your interest in this matter, and for sparing the time to talk to Alan. 

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

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

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

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

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

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

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

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

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

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

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

It was not until 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’  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 response 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.

 

HELEN HANDBURY - Sister of Rupert Murdoch

I grappled with a heavy reluctance to disclose to Helen that Rupert Murdoch was not only aware of but potentially complicit in Telstra's unethical practices. The implications of this revelation weighed on me, especially considering the enormous sum of $400 million depicted as discussed in Senate Hansard. If this amount were channeled to FOX, it would represent a significant betrayal of every Australian citizen. Many of these individuals, struggling to maintain their livelihoods, have already endured the financial strain of covering their own arbitration and mediation costs to secure a reliable phone service—an essential lifeline for their telephone-dependent businesses. This situation raises critical questions about accountability and fairness in an industry that should prioritize ethical standards. For those interested in exploring this issue further, I encourage you to refer to point 10 on pages 5164 and 5165 in the SENATE official Hansard – Parliament of Australia 

When Helen Handbury visited my holiday camp a second time after reading my manuscript at absentjustice.com, she promised to provide my evidence supporting this website to her brother Rupert. She believed he would be appalled by Telstra's disregard for justice. I hesitated to inform Helen that Rupert Murdoch knew about Telstra's unethical practices. These unethical activities cost every Australian citizen millions of dollars in lost revenue.

The revenue in question should have rightfully been directed to the government and its citizens, benefiting the public at large. This situation is thoroughly documented in the Senate Hansard, which indicates that Rupert Murdoch likely had prior knowledge of the circumstances surrounding News Corp and Foxtel. Specifically, when Telstra compensated these companies for failing to fulfill their commitment to complete the cable rollout within the agreed timeframe, it was apparent to all parties involved in this substantial $400 million deal that Telstra would not meet the deadline.

If we accept this premise, as the Senate appears to recognize in the following three points below, that Telstra and its board knew Telstra would not make the prescribed rollout deadline, then it raises serious concerns. Why were the COT Cases—business owners struggling for years due to pervasive and systemic telecommunications issues caused by Telstra—forced to bear the burden of hundreds of thousands of dollars in professional arbitration fees? They sought the assistance of an arbitrator to ensure that Telstra would finally address the ongoing phone problems that were detrimental to their businesses. If this scenario does not qualify as discrimination of the worst possible kind, what does?

Telstra’s CEO and Board have known about the scam since 1992. They have had the time and opportunity to change the policy and reduce the cost of labour so that cable roll-out commitments could be met and Telstra would be in good shape for the imminent share issue. Instead, they have done nothing but deceive their Minister, their appointed auditors and the owners of their stock— the Australian taxpayers. The result of their refusal to address the TA issue is that high labour costs were maintained and Telstra failed to meet its cable roll-out commitment to Foxtel. This will cost Telstra directly at least $400 million in compensation to News Corp and/or Foxtel and further major losses will be incurred when Telstra’s stock is issued at a significantly lower price than would have been the case if Telstra had acted responsibly.  

It is imperative to underscore the $400 million compensation deal negotiated between Telstra, Rupert Murdoch, and Fox. This arrangement stipulated that Telstra would owe $400 million if it failed to deliver the committed telecommunications services by the deadline. 

  10. Telstra's CEO and Board have known about this scam since 1992. They have had the time and the opportunity to change the policy and reduce the cost of labour so that cable roll-out commitments could be met and Telstra would be in good shape for the imminent share issue. Instead, they have done nothing but deceive their Minister, their appointed auditors and the owners of their stockÐ the Australian taxpayers. The result of their refusal to address the TA issue is that high labour costs were maintained and Telstra failed to meet its cable roll-out commitment to Foxtel. This will cost Telstra directly at least $400 million in compensation to News Corp and/or Foxtel and further major losses will be incurred when Telstra's stock is issued at a significantly lower price than would have been the case if Telstra had acted responsibly. 

 11. Telstra not only failed to act responsibly, it failed in its duty of care to its shareholders. So the real losers are the taxpayers and to an extent, the thousands of employees who will be sacked when Telstra reaches its roll-out targetÐcable past 4 million households, or 2.5 million households if it is assumed that Telstra's CEO accepts directives from the Minister.

In correspondence with Coopers and Lybrand, Bell Canada International Inc. and Deloitte, I also expressed significant concerns regarding the AXE equipment used at Cape Bridgewater and Portland, where Bell Canada did part of their testing. I argued that the conclusions presented in the Cape Bridgewater BCI report could not reflect an accurate assessment due to the ongoing problems with the AXE system in the Portland Ericsson exchange, which was responsible for servicing my business. 

Subsequently, Robert Nason ascended to an executive position within Telstra and later joined the board of FOX. Notably, this is the same Robert Nason, partner of the then Coopers and Lybrand, where the auditing by Coopers was referenced in a letter from Doug Campbell to Ian Campbell (no relation) on November 10, 1993. As shown below, in this letter, Telstra's Group General Manager in charge of the COT Cases soon to be arbitrations, Doug Campbell, advised Telstra's Ian Campbell (no relative), who had agreed with the government to arbitrate the COT matters using the Coopers & Lybrand report which admitted the COT Cases claims was now forcing Coopers & Lybrand to change their findings regarding Telstra's unethical conduct to the COT which the following wording in this November 10 1993 internal Telstra letters shows:   

"...I believe that it should be pointed out to Coopers and Lybrand that unless this report is withdrawn and revised, their future in relation to Telecom may be irreparably damaged."

The Hon. David Hawker MP, who serves as my Federal Member of Parliament, had already provided Doug Campbell's letter to Senator Richard Alston during a meeting on September 20, 1995, at Parliament House in Canberra. Two other representatives from the COT Cases attended this meeting. The presentation of this letter visibly unsettled the Senator, mainly because he was already aware of both the draft and final reports prepared by Coopers & Lybrand. These reports explicitly indicated that Telstra had permitted a manipulated version of the report to be submitted in arbitration proceedings.

This situation was reminiscent of the earlier Bell Canada International Inc. report, where the arbitrator did not receive the comprehensive advice he had been promised if he agreed to take on the arbitrator role rather than the commercial assessor position to which he had already been officially assigned. As Helen Handbury examined the numerous examples of how the Coopers & Lybrand report had been altered to favor Telstra while simultaneously disadvantaging the COT Cases, she expressed her concern, remarking that Rupert, her brother, "must see what has happened here; he would be aghast."

There are reasons to believe that Rupert Murdoch may have already been informed about the controversies surrounding Robert Nason and the manipulated findings in the Coopers & Lybrand report. This scrutiny extends to Mr. Nason’s subsequent appointment as a Telstra executive and elevation to the board of FOX, raising further questions about the integrity of these corporate dealings.

Furthermore, Doug Campbell's insights and testimonies were featured on the Sunday Business show broadcast on Channel Nine. The episode can be found on the third listed YouTube video on the Price Waterhouse Coopers Deloitte page, providing additional context to the ongoing issues related to these reports and the treatment of COT Cases.

Price Waterhouse Coopers Deloitte hyperlinks to https://shorturl.at/5EALA and https://shorturl.at/djvYt prominently displayed on the Kangaroo Court website underscore a troubling and increasingly visible pattern of scrutiny directed at major accounting firms' operational practices by the Australian government and the media.

My primary concern is that if Rupert Murdoch and FOX received a staggering $400 million in compensation from Telstra, then the COT Cases, which have endured ongoing telephone and faxing problems with their respective businesses long after arbitration was intended to resolve their ongoing telephone problems and faults, should likewise have received compensation when these phone and faxing faults continued for years after the conclusions of their arbitrations.

There exists some ambiguity regarding whether Mr. Murdoch has obtained a copy of my manuscript, which serves as the foundation for the website absentjustice.com, dedicated to shedding light on these pressing matters. To date, I have not received any communication from Mr. Murdoch, and given his considerable connections with Telstra, his direct involvement in this situation appears unlikely.

How does the above PwC text relate to the COT Cases arbitration process?

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.’ 

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.

Most Disturbing And Unacceptable 

On 27 January 1999, after having read my first attempt at writing my manuscript absentjustice.com, the same manuscript was provided to the Prime Minister of Australia John Howard, Senator Kim Carr wrote:

“I continue to maintain a strong interest in your case along with those of your fellow ‘Casualties of Telstra’. The appalling manner in which you have been treated by Telstra is in itself reason to pursue the issues, but also confirms my strongly held belief in the need for Telstra to remain firmly in public ownership and subject to public and parliamentary scrutiny and accountability.

“Your manuscript demonstrates quite clearly how Telstra has been prepared to infringe upon the civil liberties of Australian citizens in a manner that is most disturbing and unacceptable.” 

They have defied the Senate working party. 

On 23 March 1999, after most of the COT arbitrations had been finalized and business lives ruined due to the hundreds of thousands of dollars in legal fees to fight Telstra and a very crooked arbitrator, the Australian Financial. Review reported on the conclusion of the Senate estimates committee hearing into why Telstra withheld so many documents from the COT cases: 

“A Senate working party delivered a damning report into the COT dispute. The report focused 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.”  

Placing your mouse/cursor on the following six named Senators will show you that all of the COT Cases arbitrations should have been transparently investigated by an arbitrator whose fees and the fees of his covertly exonerated technical and financial consultants were paid by the government and not the Telstra Corporation who were the defendants in all of the arbitrations. 

Eggleston, Sen Alan – Bishop, Sen Mark – Boswell, Sen Ronald – Carr, Sen Kim – Schacht, Sen Chris, Alston and Sen Richard) 

The Senate intervention to stop this unlawful conduct only assisted the five ‘litmus’ COT cases (four) had not yet reached arbitration. The remaining 16 COTs had already been through their government-endorsed processes, but without the bulk of their FOI requests/evidence. By the Senate not assisting the remaining 16 to obtain their FOI requests, those COTs were unable to secure settlements that reflected their true losses. Why were the 16 cases that had gone through a – disputable – arbitration process not even looked at? This is certainly appalling discrimination by the LNP government. And our past and current government bureaucrats have the audacity to downplay what Julian Assange tried to do for the COT cases, i.e, his fellow Australian citizens.

Why didn't the Australian government pressure Telstra to compensate all of the 21 COT Cases and not just the five COT cases Telstra withheld or destroyed their requested arbitration documents?  It is clear from the following Google link (see What are the risks of hiding evidence during legal discovery?) 

I reiterate why were only 5 of the COT Cases were provided with their previously withheld arbitration documents and not the remaining 16 COT Cases. Those five litmus test cases also received millions upon millions of dollars in punitive damages for having suffered such a terrible arbitration. When those same 16 COT Cases received no compensation

Telstra's Unlawful Withholding Of Documents

Senator Len Harris, who won his senate seat on 2 July 1999 for the One Nation party, then lived in Queensland, 2,977 kilometres from Melbourne. On 25 July 2002, Senator Len Harris travelled from Cairns in Queensland (a trip that took more than seven hours) to meet four other COTs and me, in Melbourne, in an attempt to ensure our claims of discrimination by the Commonwealth were fully investigated.

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

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

• Why didn’t the present government correctly address Telstra’s serious and unlawful conduct of withholding discovery and/or Freedom of Information (FOI) documents before the T2 float?
• Why has the Federal government allowed five Australians (from a list of twenty-one) to be granted access to some of the Telstra discovery documents they needed to support their claims against Telstra, but denied the same rights to the other sixteen?
• Why has the Federal Government ignored clear evidence that Telstra withheld many documents from a claimant during litigation?
• Why has the Federal Government ignored evidence that, among those documents Telstra did supply, many were altered or delivered with sections illegally blanked out? (See Senate Evidence File No 56).

Senator Len Harris was distrurbed that A fair resolution of those sixteen COT cases had never been resolved (see  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’.

 

Deliberate maleficent

 

Chapter 10

And the faults continue

The issues drag interminably on. Are they waiting for me to give up and go away? My faxing problems have never stopped. If documents are sent by courier and don’t arrive, we have recourse through the courier company. If documents sent by fax through Telstra’s network are lost however, it would seem there is no recourse.

The missing faxes

In June 1998 I asked five different businesses to write about the fax problems they encountered with me. Hawker’s Secretarial Service in Portland said, ‘… being the only secretarial service in Portland, my fax machine is a valuable tool in my office and as to date I have never experienced problems with any of my other clients.’ These letters were passed to the TIO’s office. But it is not just the ongoing problem that bothered me. It is the custom I lost.

On 1 July 1998 I wrote to the Deputy TIO, Mr Wally Rothwell regarding faxes that had been ‘lost’ in transit in the course of my arbitration, or which were delivered, but were unreadable. Since the time of my arbitration I have been trying to get this issue addressed.

I copied on to Mr Rothwell a number of faxes returned to me from the arbitrator’s office once the arbitration had been completed. These faxes had arrived at the arbitrator’ office as only half pages or as blank pages. There were also bank statements I faxed to Ferrier Hodgson, which arrived at their office with no details showing. I asked the TIO how FHCA could have assessed my financial position correctly when some of the documents I sent them arrived blank. Predictably, there was no response from the TIO.

On 30 July 1998, the Australian Federal Police wrote that they were unable to help me track down my missing faxes, and on 18 August 1998, the Attorney General wrote that he too could not be of assistance. If the Federal Police and the Attorney General’s office are not concerned about the loss of legal documents in transit via a fax machine, then who can help me?

I also wrote to the TIO and the Minister for Communications, asking them to instruct the arbitrator’s office and the TIO’s legal counsel to supply me with a copy of the ‘missing’ claim documents, under the rules of the arbitration which Telstra and I both signed.

Points 6, 7.2 and 25 of the FTAP rules state:

6.    A copy of all documents and correspondence forwarded by the Arbitrator to a party or by a party to the Arbitrator shall be forwarded to the Special Counsel. A copy of all documents and correspondence forwarded by a party to the Arbitrator shall be forwarded by the Arbitrator to the Special Counsel and the other party.

7.2  The Claimant shall within 4 weeks of receipt of written notice from the Administrator pursuant to Clause 5 that he has received completed and signed Request for Arbitration forms send to Telecom and to the Arbitrator in duplicate, its Statement of Claim and any written evidence and submissions (‘the Claim Documents’) in support of that claim.

25   Within 6 week of publication of the Arbitrator’s award, all documents received under this Procedure by the parties, the Administrator, the Resource Unit and/or the Arbitrator and all copies thereof, shall be returned to the party who lodged such documents.

If they adhered to the FTAP rules, Telstra and the TIO’s legal counsel should have had copies of everything I sent to the arbitrator, whether I sent it by mail or fax. And according to the same rules, the TIO was bound to instruct Telstra or their legal counsel to supply me with the ‘missing’ documents. The only conclusion I can draw from this is that the TIO must be aware that the majority of my claim documents never reached Telstra’s defence unit or the legal counsel in the first place, and therefore knows it is pointless to direct them to return these documents to me. Very little in the actions of the TIO has reassured me or the other members of COT as to the capacity for impartiality of that office in its role as standing between us and Telstra.

On 26 February 1999, I sent three faxes to COT member, Graham Schorer: the first and third of these arrived at Graham’s office as intended but the second did not. Graham’s fax journal shows the two faxes which were received, marked with an arrow. According to my Telstra account, I was duly charged for the long-distance transmission of all three. If I hadn’t happened to phone Graham to discuss the document which didn’t arrive, we might never have discovered it had ‘gone walkabout’ between our faxes. Now most people would accept a single incident like this as just a ‘blip’ in the system. Unfortunately this has happened on too many occasions, and it was happening back in 1994 over the months during which I was lodging my claim with the arbitrator.

We also have to wonder how many other similar occurrences have not been noticed over the years and how many individual or business people send faxes and never discover that they didn’t arrive at their intended destination and so happily pay their Telstra accounts.

Still trying to get my original claims addressed

On 17 February 1998, I sent the TIO a bound submission detailing my continued and ongoing incorrect charging by Telstra. The submission started with the beginning of my arbitration and included copies of pages of the transcript of the oral hearing conducted on 11 October 1994 with Telstra, the arbitrator and myself, and a representative of the TIO, showing that my claim documents relating to incorrect charging were accepted into the arbitration procedure. There were several pages explaining the significance of the material I was submitting, so many that, on page 94, the arbitrator is reported as stating during the course of the oral hearing, ‘I don’t think we need any further examples.’

Yet even with this mountain of evidence the TIO still stated that the problem began only ‘at a late stage of the arbitration process.’ It’s as if it would stick in his throat to actually present my case on its own terms, impartially. On the positive side, the TIO did respond. He asked Telstra whether they agreed ‘that this matter was not addressed’ in my arbitration. Wake up! I felt like yelling, not for the first time. Of course, at the time of writing this, I have yet to receive Telstra’s response. I’m not holding my breath. I can only suppose that a judgement against Telstra in the matter of incorrectly charging their customers on a regular basis would set a dangerous precedent. I pay the price, while Telstra avoids facing the issue at all costs. And behind Telstra stands the TIO, and Austel, and the government.

In 1998 I also sent the transcript of the 1994 oral hearing to the TIO and the Minister for Justice, alerting them to how, at that time at least, the arbitrator agreed to address Telstra’s tapping of my phone lines and listening to my private phone calls during the arbitration procedure.

Arbitrator to Smith: ‘... effectively any reference in your claim documents to date regarding unlawful phone tapping will be treated by me and the resource unit as unsubstantiated and therefore not relevant for the purpose of determining whether you’re entitled to compensation.’

Me: ‘No, I will leave it in the claim because —’

Arbitrator: ‘You understand if you leave it in your claim, Telecom is entitled to ask what is the basis for this allegation?’

Me: ‘Right, Okay, yes, all right.

Arbitrator: ‘So you want to leave the allegation in?

Me: ‘I will leave the allegation in.’ 

But these claims were not addressed, either in my award, or by the TIO, or indeed by the Minister.

If Telstra is allowed to get away with eavesdropping on businesses while it is government owned, then what does the future hold for Australia once it is completely privatised, with no government control at all? Even now, how many other businesses are having their private matters watched? How many overseas investors are being ‘bugged’ without their knowledge? How many businesses fighting a take-over bid have their private information passed around to whoever might benefit from a bit of inside knowledge? How many faxes are copied to someone other than the intended recipient?

An article on electronic security in the Melbourne Age of 10 October 1998 reported that it was possible for anyone with access to Telstra’s network to monitor faxes as they are sent and to keep copies without the sender’s knowledge. This article also pointed out that telephone operators can eavesdrop on calls and Telstra can access all calls, though this is supposed to be under strict controls.

After three more years of telephone complaints after my award was handed down — of line-locks, dead-line problems, missing faxes and the 1800 billing problems — Telstra finally sent two representatives to see me at Cape Bridgewater on 14 January 1998. By this time I had put together a mass of evidence consisting largely of Telstra’s own data and my itemised accounts. The two Telstra representatives explained they were liaising with the TIO’s office regarding my complaint that my arbitration had not addressed a number of issues raised in my original Letter of Claim. They considered my evidence sound and took it away with them. In their notes of this meeting they said:

… Mr Smith produced various printouts of CCAS data in comparison with his Telstra accounts. In many instances the calls add up however, in some cases there appeared to be differences in the duration of the call time. I note that the examples given by Mr Smith at the meeting spanned the period of the Arbitration and after the conclusion of the Arbitration. 

Senator Alston wrote to David Hawker my Member of Parliament on 27 February 1998 and again on 29 May 1998 telling him that Telstra was examining the documentation with a view to resolving my concerns. Things were looking promising, I thought.

Then in a letter dated 9 June 1998, the Deputy TIO referred to an intended meeting with the arbitrator, in order to ‘clarify whether he did consider the 1800 issue during the arbitration.’ Pay attention, I felt like shouting. There had never been any doubt about this. A 15 November 1995 letter from the TIO-appointed Arbitration Project Manager to the TIO  was quite clear that NONE of the billing issues, including the 1800 issues, were ever investigated during my arbitration. And on 3 October 1995 Austel wrote to Telstra, with a copy to the TIO, asking why the billing issues I raised during my arbitration had NOT been addressed. 

In July 1998 seven letters passed between the TIO office and me,  all proving that many of my claim documents which my Telstra account shows were faxed to the arbitrator’s office in 1994–95 had either not arrived, or had arrived in a damaged state. Yet on 25 August 1998, Mr Pinnock (TIO) wrote to me:

The only issues that I am considering, as the former Administrator of your arbitration, are the alleged overcharging for your 1800 service and matters pertaining to your Gold Phone service, and whether they were considered in the final award. 

There is no mention of my complaints of lost faxes, not even an explanation of why he is not considering them. I have to wonder, is there some reason behind this omission? My submission was very clear about the importance of the issue of the lost faxes. Why was he avoiding it? Mind you, nor did he address the issues he said he was considering.

In June 1996 I had written to advise the TIO that four 1800 billing claim letters addressed to the arbitrator had not been provided to me during my arbitration. On 2 August 1996, in response to that letter,  the Resource Unit admitted to the TIO and the arbitrator that they had indeed withheld these letters. In 2002 I received back a copy of my letter to the TIO dated 26 June 1996, and found that the TIO had added a handwritten note at the bottom of this letter, stating:

‘These are quite serious allegations. We need to respond to specific letters Smith says weren’t forwarded or received and provide answers on each.’

I have sent some sixty to seventy letters to the TIO since 1996, asking his office to follow up on these ‘serious allegations’ (which are in fact not allegations, but the truth). The TIO’s office has refused bluntly, and reminds me that if I am not satisfied I can take them and the arbitrator to court, well aware that I do not have that sort of money.

I call this criminal collusion. What is more, as I have already shown, Austel and the TIO allowed Telstra to secretly address these same four 1800 billing documents in October 1995, five months after the end of my arbitration. Had the TIO and the defendants concocted some deal so these billing documents could be hidden from the arbitrator and me? And why? So that Telstra could address them outside of the arbitration, compromising my legal right to challenge Telstra’s defence of these documents.

Telstra’s CEO, Frank Blount, admitted the breadth of this 1800 billing problem in his 1999 book Managing in Australia. Not only the billing, but most aspects of the performance of the 1800 ‘product’ were, as the book notes, ‘sub-standard’, and Blount’s response, when apprised of this, was one of ‘shock’.

And Telstra management certainly knew this four years earlier when they knowingly supplied the government regulator with grossly inaccurate information in my arbitration, and indeed when the Resource Unit’s technical consultants refused to investigate the evidence regarding my 1800 line.

Finally I have had enough

In June 2001 I put the business up for sale and in December that year Darren Lewis took possession. Cathy and I kept the property next door. I believed that the problems with Telstra had become a personal vendetta and that they would disappear when I was no longer involved. Alas, that was not the case.

From March 2002, Darren Lewis wrote numerous letters to the TIO, complaining of fax related problems of a similar nature to those I had suffered. Mr Lewis received the support of the Hon David Hawker, who wrote to him in October 2002:

Given the serious communications problems encountered by the former proprietor of your business (Mr Alan Smith), I intend to make representations on your behalf directly to the Federal Minister for Communications and Information Technology.

In November 2002 the Channel 9 Sunday Program featured the camp in a story on various COT cases and Telstra. Following the program, I received a letter from a Barry Sullivan:

After viewing the Sunday programme, I realise the similarities your business and others had with Telstra ten years ago with the similarities our building business had, when we lived at Bridgewater. During a period of time between the late 1980s and early 1990s we had considerable amount of difficulty with our phone. Our phone problem had such a negative effect on our building business over a period of time that our work dried up. 

I had not come across Barry Sullivan’s case during the time of my arbitration. In fact, Austel had passed on to Telstra information regarding other Cape Bridgewater residents who were experiencing ongoing telephone problems similar, to the ones I had experienced but kept this information from me (and presumably the arbitrator) during my arbitration. By the new millennium though, the issue was well and truly public. Under the headline ‘Plans afoot to attract tourists’ the Portland Observer wrote on 8 August 2003:

The Cape Bridgewater Tourist Association is planning a major swimming event each New Year’s Day in a bid to attract tourists to the area. At their meeting on Tuesday, association members also expressed continuing problems with the telecommunications into the area.

One operator Denis Carr said he had been told Telstra was rectifying the problem.

I hope he wasn’t holding his breath.

Meanwhile, things were not improving for Darren Lewis. In November 2002 an article in the Portland Observer noted:

The telecommunications problems which plagued former Cape Bridgewater Holiday Camp operator Alan Smith have continued to beset current owner Darren Lewis. Mr Smith is a founding member of the Casualties of Telstra. Mr Lewis said this week he had experienced several problems with the phone and fax service since taking over the Cape Bridgewater Holiday Camp last year.

‘Telstra admits there is a fault and they are trying hard to solve it,’ he said. 

But in January 2003, Darren Lewis was obliged to write to the TIO John Pinnock:

As well as speaking to David Hawker’s representative this morning, I also had a disturbing discussion with Tony Watson, the Telstra fault technician assigned to my case. Mr Watson informed me (in a roundabout way) that he is reluctant to supply me with any more information in relation to our phone faults because he knows I am in contact with Alan Smith, the previous owner of the business. 

Was Telstra afraid I might attempt to reopen my arbitration? Or was Mr Watson still holding a grudge against me because of something that was supposed to have been addressed in my arbitration nine years before? Either way, it is outrageous that Darren Lewis had to suffer such treatment — and that such treatment is basically endorsed by the government, which refuses to confront Telstra.

Back to the politicians

In 2002 there was another attempt to initiate a government investigation into the travesties around the COT arbitration cases, this time by Senator Len Harris of Queensland, who wanted to see justice for the sixteen COT cases who missed out following the Senate Inquiry. The Senator was advised the government would look into those cases he had raised, but no investigation ever took place. The same issues were raised again, three years later, by the newly elected National Party Senator, Barnaby Joyce, who had just toppled Senator Harris for the same Senate ticket. Both Senators, representing two different parties, felt strongly about the denial of natural justice in the COT cases and were determined to redress it.

In July 2005 Senator Joyce agreed to add his vote to ensure the sale of Telstra went through the Senate, but only on the condition that the unresolved arbitration issues of the COT cases were properly and officially dealt with. But, once he had cast that crucial vote, the Minister for Communication Helen Coonan did a back-flip on her word and the COTs were shafted yet again. Senator Joyce was livid, and for a year demanded the justice he had paid for, but in vain.

In March 2006 Minister Coonan did, however, agree to a government process in which public servants would conduct a commercial assessment. Only two (out of what were then fourteen) COT cases agreed to this process, and I was one of them. The other twelve had no illusions that their claims would be truly independently assessed.

To support my claim that my arbitration had NOT rectified my phone and faxing problems the Hon. David Hawker, then Speaker in the House of Representatives, submitted a statutory declaration by Darren Lewis, the new owner of the business:

After Telstra rewired the business including disconnecting a Telstra installed faulty phone alarm bell, we were informed Telstra had found other problems and believed whoever had installed the wiring had done an unprofessional job. Internal Telstra documentation provided to me by Alan Smith confirmed Telstra themselves had done the wiring. Jenny and I noticed that although our incoming call rate had more than doubled once this wiring had taken place Telstra was still unable to provide a satisfactory reason as to why we were still having problems.

Telstra informed us we had what is commonly known in technical words as a line in lock-up rendering our business phone useless until the fault is fixed. It was then that the local technician informed me that as strange as it might seem he believed that because our business was on optical fibre and so close to the Beach Kiosk (junction box) this could very well be part of the problem ... It was on this note that the technician informed me that although it was a backward step he was going to investigate the possibility of moving the business off the optical fibre and back onto the old copper wiring. 

Despite such strong confirmation of my case, Senator Coonan wrote to me on 17 May 2007 regarding her representation to Telstra on my behalf:

Telstra is not prepared to undertake an alternative means of pursing this matter. I also appreciate the depth of feeling regarding the matter and suggests you consider whether any court proceedings may be your ultimate option.

I can only wonder at the power Telstra wields: it seems impregnable.

The sad fate of Darren Lewis

On 28 January 2003, a letter from TIO officer Gillian McKenzie to Telstra states:

“Mr & Mrs Lewis claim in their correspondence attached:

That they purchased the Cape Bridgewater Coastal Camp in December 2001, but since that time have experienced a number of issues in relation to their telephone service, many of which remain unresolved.

That a Telstra technician ‘Mr Tony Watson’ is currently assigned to his case, but appears unwilling to discuss the issues with Mr Lewis due to his contact with the previous camp owner, Mr Alan Smith.” (See Home-Page File No/76 and D-Lewis File 1-I)

Was there a more sinister motive involved in Telstra’s technician refusing to help Darren Lewis with the ongoing phone/fax problems that, nine years before, Telstra and the arbitrator assigned to my case failed to investigate transparently? Why was this Telstra technician still holding a grudge against me in 2002/3 because of something my 1994/95 arbitration should have addressed – i.e., the ongoing phone and facsimile problems that this same Telstra technician was now refusing to help Mr Lewis with, nine years later?

Darren Lewis was so angry with this Telstra employee that he took a number of photos of the actual wiring that ran from Telstra’s pit to his residence and his office (the same office that was mine from 1988).

As part of his plans to renovate the house, Mr Lewis had begun to prepare for a heating system to be installed under the house but, in the process, as he sunk his shovel into a water-soaked area, he accidentally cut into a Telstra cable that was only buried half a shovel deep. Water from an overflow downpipe from the main accommodation block had been running off and collecting over the Telstra cabling that had obviously not been buried deep enough (see the following photos taken by Mr Lewis at the time).

According to the AUSTEL’s records, the Telstra cable was installed in 1991 and, as this photo below shows, it was this faulty installation that led to the cable itself becoming waterlogged. Yet, on 6 April 1995, during my arbitration, when I begged Telstra and the arbitration’s so-called independent technical consultants to run a series of tests to all three of my service lines and inspect the Telstra pit outside the office to ensure that the Customer Access Network (CAN) was up to the proper network standard, my request was refused outright.

Mr Lewis took 22 photos that day, showing just how poor Telstra’s workmanship was when the cable was installed. The open pipe was full of water and water had run down the pipe to the u-bend. After Telstra installed new cabling, Darren advised the TIO, the number of incoming calls increased by more than 100 per cent: this is confirmed by CCAS data.

So what was my arbitration about? Shouldn’t the TIO and the technical consultants he appointed have investigated why I was still registering ongoing telephone problems? It certainly appears the real reason for the way the arbitration was run was to ensure that the Telstra Corporation could continue to conceal all the problems created by their ailing copper wire network, and really, all the arbitrator had to do was grant us an award to compensate us and cover up the rest, exactly as it has been ever since, for the past 20-plus years.

On 1 September 2004, Darren Lewis’ (who purchased my holiday camp in December 2001) wrote to our local MP, David Hawker, stating:

“I must also reiterate my thanks for the pressure you put on Telstra in late 2002 – I believed it was this that finally forced them to re-wire the kiosk at the camp and disconnect the faulty telephone alarm bell which local Telstra employees believed could have been causing some of the problems with incoming calls. Although the incoming calls increased dramatically one the re-wiring had been done, the trauma of the first year we were here has not gone away.”

Telstra waited until 10 months after I had sold the business before they transparently investigated the ongoing telephone and faxing problems I raised during my actual arbitration and for six years after it was declared over. If this isn’t discrimination of the worst possible kind, then what is? Did Telstra make a deal with the arbitrator to ensure that he would only investigate old, historic, anecdotal phone and faxing faults and totally ignore any ongoing problems in the rural network that, if they were proved to exist, would open the floodgates and allow other rural customers to sue Telstra?

When I showed the Hon David Hawker MP that the arbitrator only addressed old issues and none of the issues that continued to affect other Cape Bridgewater customers and me, he arranged a meeting in Parliament House, in Canberra, with Senator Alston, the then-Minister for Communications. The senator’s staff agreed to investigate a 60-plus page report (and attachments) that I provided to them. This report was eventually returned to me – without the attachments – but with a covering letter from a Paul Fletcher, refusing to address the report at all. This bureaucrat is now the Hon Senator Paul Fletcher who, from 2014 to 2016, has been assisting the present Prime Minister of Australia with the problems associated with Telstra’s ailing copper wire network that has been the root cause of the slow rollout of the NBN.

On 26 May 2019, Paul Fletcher became Australia’s Minister for Communications and the Arts (see  Media Release: Fletcher 'deeply honoured' to be appointed Minister for Communications, Cybersafety and the Arts).

As the new Minister for Communications,   I can only hope The Hon Paul Fletcher will now look at the evidence I provided Senator Alston in September 1995, and the more updated version of June 1996 and the more recent information now exposed on absentjustice.com, especially as numerous senators found our COT arbitrations were not conducted lawfully.

If the TIO had allowed his appointed arbitration technical consultants to properly investigate the COT cases, as they should have, then that corroded copper wire network would have been uncovered and investigated in 1994, instead of in 2012, and the current Telstra shareholders would not be left picking up the tab. No wonder the Hon David Hawker was livid when he discovered that Darren Lewis was still having phone problems in November 2006, as our Main Evidence File No 3 shows.

I provided two photos Darren Lewis took to Senator Len Harris, showing him how deep the cabling was running: 50 meters along a trench less than half a shovel deep.

After seeing these photos, I employed a professional video production company to produce a video showing how the actual wall sockets looked when the casing was removed. I still have copies of that video but, in April 2016, when we tried to transfer it to a CD, we discovered that the quality was not good enough for use on the internet.

Back in December 2002, when the video was produced by Noel Waugh (Video Production of Portland), we sent a copy to the office of the then-Minister for Communications, Senator Richard Alston. Like most bureaucrats working in government departments, those who worked in Senator Alston’s office did not understand the relevance of the video in relation to my claims of ongoing problems and nor did they understand it showed how incompetent some Telstra employees were, particularly in rural Australia. It was, after all, Telstra’s incompetence, coupled with the fact that no one in Telstra really cared about the suffering of telephone customers, especially those with telephone-dependent businesses, that ruined the lives of so many small business operators.

If the arbitrator had conducted my arbitration according to the ambit of the Commercial Arbitration Act 1984 and investigated ALL of my ongoing telephone and faxing claim documents, then Darren and Jenny Lewis (as new owners of my business) would not have suffered. I was forced to sell my business because the TIO and Telstra did not transparently investigate my claims. Both the TIO and Telstra failed to divulge their investigation conducted on 14 January 1998, after my arbitration, showing it was apparent the phone problems would indeed continue.

If the TIO did carry out an in-house investigation into my claims some COT faxes were being illegally intercepted, but came to the conclusion that those faxes did not arrive because they were lost as a direct result of faults in the network – the very network under investigation by the arbitrator – it was deplorable for the TIO to not respond to my interception claims. Deplorable because, either way, regardless of whether missing documents were intercepted and not forwarded on or were lost because of faults in the network, ultimately certain claim documents of relevance to the COT claims were NOT assessed by the arbitration process as the Federal Labor Government when they endorsed our arbitrations.

 

Chapter 11

 

(see Bad Bureaucrats File No/11 – Part One and File No/11 – Part Two)

Copper Wire was not compatible

On 4 September 2006, The Hon David Hawker MP, Speaker in the House of Representatives, provided a copy of Darren Lewis letter to the Hon Senator Helen Coonan, Minister for Communications, Information Technology and the Arts, with a two-page statutory declaration noting:

“Letters from us to our local Federal Member of Parliament, the Hon David Hawker, Speaker in the House of Representatives, led to Telstra visiting our business to investigate these continuing problems.

“After Telstra rewired the business including disconnecting a Telstra installed faulty phone alarm bell, we were informed Telstra had found other problems and believed who ever had installed the wiring had done an unprofessional job.

“Internal Telstra documentation provided to me by Allan Smith confirmed Telstra themselves had done the wiring.

“Jenny and I noticed that although our incoming-call rate had more than doubled once this wiring had taken place Telstra was still unable to provide a satisfactory reason as to why we were still having problems. …

“The technicians then in a hookup consultation with outside office guru’s  did a fault graph reading on our 55 267267 line with the outcome that their office technical staff stated words to the affect  the reading was impossible (couldn’t be correct). It was then that the local technician became quite annoyed when the technical guru insinuated that the equipment the local tech was using must be faulty. The local tech then informed the technical guru that there was nothing wrong with the equipment at all.” (See Main Evidence File No 13)

Most, if not all, of the COT cases suffered from sleep disorders and stress for years as a result of their battles, with Telstra’s senior management who continued to deny there was ever a phone problem affecting their businesses.  It was these type of denials by Telstra employees like Tony Watson after the COT Cases had spent hundreds of thousands of dollars in arbitration fees after the government had promised would be fixed as part of the government endorsed processes that caused so much damage. 

I provided Ms Howard with a letter dated 21 March 1999 and addressed to the Casualties of Telstra, C/- The Small Business Show, Channel Nine. This letter suggests others who ran afoul of Telstra had suicided:

“I watched your show on Sunday morning carrying the piece on Telstra. I was interested to hear of Telstra’s lies under oath, destruction of evidence, etc, etc.

“I started a lawsuit 2½ years ago against Telstra for breach of contract during their cable TV rollout. They have placed every obstacle in our way and dragged the case out to try to bleed us dry. They sent dozens of contracting companies such as mine to the wall by manipulating markets and breaching contracts. Only 3 companies have had the resources to fight them. Unfortunately two company owners have allegedly committed suicide due to the loss of their homes and families as a consequence of Telstra’s actions, although this would be difficult to prove.

“As a direct consequence I have lost my home, separated from my wife, lost hundreds of thousands of dollars and a twenty year old business and fought a very dirty legal battle. My other partners have had to sell or re mortgage homes and one has retired without any of the security he should have had from ownng  a business for over twenty years.” (See Home Evidence File No/7)

I also provided another letter received by me, dated 8 November 2002, from a man in South Australia, stating:

“I am writing to you following viewing the Channel 9 Sunday Program on 3/11/02. After viewing the Sunday program, I realised the similarities you  business and others had with Telstra some ten years ago with the similarities our building business had, when we lived at Bridgewater. …

“During this period of time I was on a call talking to a councilor . She believed that the conversation we were having was being bugged, or listened into, and we immediately ceased the call. …

“Our phone problem had such a negative effect on our building business over a period of time that our work dried up and or  business shut down.” (See Home Evidence File No/15)

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

And now, here was Telstra in 2002/2003 – nine years after my arbitration process – still having not fixed my original telephone problems and making sure that the Lewis’ ongoing telephone problems were also not transparently investigated because to do so would prove just how delusive and undemocratic my arbitration process was. The Lewises’ lives, like mine and my partner’s, were insignificant as long as Telstra’s network deception remained protected … at all costs. (see also Chapter 4 The New Owners Tell Their Story  and  Chapter 5 Immoral - hypocritical conduct).

A number of politicians from both sides of the house, I am sure, are aware Absent Justice My Story is not a site that attacks the government with vexatious accusations of malice. The website was set up in January 2015, 20 years after I tried every conceivable way to prove my claims: that NONE of my ongoing billing faults, raised with the government in 1993 and 1994 by my then Federal Member of Parliament the Hon David Hawker MP and Shadow Minister for Communications the Hon Richard Alston, were addressed during my government-endorsed arbitration of 1994. I have always maintained, as have many government ministers from both sides of the House, that the first four COT case arbitrations were facilitated in order to fix the COT cases’ telephone problems, as well as to award damages if the claimant proved his claims. The arbitrator Dr Hughes found Telstra was indeed deficient in its supply of a phone service for the whole period of my claim.

However, TIO records show it was warned by AUSTEL, on 3 October 1995 (five months after Dr Hughes brought down his award), that NONE of my ongoing billing telephone faults raised in my arbitration were investigated or addressed during my arbitration. The TIO (the administrator of my arbitration) did nothing to transparently investigate why the arbitration process did not address these still-ongoing billing problems, even after being further advised, on 15 November 1995, by the TIO arbitration project manager John Rundell that NONE of my arbitration billing faults were addressed by the arbitrator.

 

Telecommunications Industry Ombudsman

FOI folio I00271 and I00265

I use the two following Telstra FOI documents, folio I00271 and I00265 (see Our Saga File N0 3-A to 3-C) as a testament that the TIO knew my ongoing billing faults continued for years after my arbitration; I can provide, on request, government records showing the TIO misled and deceived government ministers, over many years, concerning the validity of my claim. Telstra FOI document folio I00271 (File N0 3-A), dated 24 October 2002 has been used here to support that the TIO was fully aware of the ongoing telephone and faxing problems being experienced by Darren and Jenny Lewis after they purchased my business. This document folio I00271 states:

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

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

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

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

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

Numerous other documents on my website clearly show other government Ministers apart from The Hon Senator Richard Alston and The Hon David Hawker MP have been misleading and deceived over the validity of my claims that my arbitration did not address my ongoing telephone and faxing problems that in the end, left me little option but to sell my holiday camp.

I believe that Darren first became concerned about the possibility that his phone conversations also may have been illegally listened to when he discovered my accreditation file in the camp office, where I had inadvertently left it when handing the Camp over to Darren. This file included Australian Federal Police/Telstra intercept documents, including one dated 14 April 1994 from Telstra to the AFP, notifying them that Telstra had installed equipment in the Portland exchange so that a bell would ring whenever I received an incoming telephone call, so that the person on duty could then listen in on those conversations. I provided this Risk Management Plan (AS-CAV Exhibits 589 to 647 - See exhibit AS 629) to the Australian Government as well as the Administrative Appeals Tribunal during my 2008 Freedom of Information hearing – No V2008/1836.

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

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

BCI and SVT reports - Section One

Who highjacked the BCI and SVT Reports 

The following Federal Magistrates Court letter dated 3 December 2008, from Darren Lewis, was never discussed by the government or Telecommunications Industry Ombudsman or its relevance to several arbitration documents in 1994 to 1995 being highjacked, i.e., never arriving at the arbitrator's office. This 3 December 2008 letter, compared with my 2008 Administrative Appeals Tribunal during October 2008 and 2011 (see Chapter 9 - The ninth remedy pursued  and Chapter 12 - The twelfth remedy pursued), is undoubtedly linked to Telstra having a mole in Australia Post. My letter to the Hon. David Hawker MP on 29 October 2001 explains how relevant arbitration mail never reached the arbitrator. Several letters attached to this website, absentjustice.com and Chapter 4 - Government spying  and Australian Federal Police Investigations, confirm I discussed lost emails during my arbitration as never having arrived at the arbitrator's office.

My letter to the Hon David Hawker MP, (see File 274 - AS-CAV Exhibit 282 to 323), clearly indicates that even the Portland Australia Post office staff know that the security of specific mail leaving the Portland Post Office cannot be given the green light. So what was the use of me road mailing my arbitration documents to the arbitrator in 1994 and 1995 and the new owners of my business sending similar Telstra-related documents to the Federal Magistrate Court when there was a big chance the mail would not arrive? Darren and Jenny Lewis (the new owners of my business letter of 3 December 2008, is just further alarming information that the government has not transparently investigated (see the following statement by Darren Lewis to the Federal Magistrates Court:

Towards the end of 2008 Darren was before the Federal Court because of overdue taxes and was filing paperwork for bankruptcy.

In 2008, Darren Lewis wrote to the Federal Magistrates Court stating:

I was advised by Ms McCormick that the Federal Magistrates Court had only received on 5th December 2008 an affidavit prepared by Alan Smith dated 2 December 2008. PLEASE NOTE: I originally enclosed with Alan Smith’s affidavit in the (envelope) overnight mail the following documents:

1. Two 29 page transparent s/comb bound report titled SVT & BCI – Federal Magistrates Court File No (P) MLG1229/2008 prepared by Alan Smith in support of my claims that I had inherited the ongoing telephone problems and faults when I purchased the Cape Bridgewater Holiday Camp
2. Two s/comb transparent bound documents titled Exhibits 1 to 34
3. Two s/comb transparent bound documents titled Exhibits 35 to 71 (the attached 71 Exhibits was enclosed in support of Alan Smith’s 29 page report);
4. Three CD Disks which incorporated all of the submitted material.

“On learning from Ms McCormick that the information discussed above in points 1 to 4 had not been received by the Federal Magistrates Court I again had a stress attack seizure, a problem I have been suffering with for quite some time due to the predicament I now find myself in and the disbelief that once again my mail has been intercepted. I have attached herewith dated 3rd December 2008, a copy of the Australia Post overnight mail receipt docket numbers SV0750627 and SV0750626 confirming the total cost to send the above aforementioned information was $21.80. I am sure Australia Post would confirm that a large amount of documents would have been enclosed in these two envelopes when they left Portland. (See My Story Evidence File 12-A to 12-B)

Australia Post will not charge any postage fee for an overnight parcel unless they stamp and retain it. Since neither of these parcels arrived at their proper destination with all of the information originally enclosed, those documents must, therefore, have been ‘lost’ between the Portland Post Office and the Magistrates Court.

As I have reported throughout this webpage numerous Telstra COT related arbitration documents (like those lost on route to the Federal Magistrates Court in December 2008) were also lost during 1994/95 on route to the arbitrator hearing my case.

As Darren’s letter shows, I helped him prepare his bankruptcy appeal against the Australian Taxation Office (for back taxes) using my own evidence that the Telstra Corporation, knowingly submitted two false and fundamentally flawed Cape Bridgewater reports to the arbitrator during my arbitration, to deliberately mislead the arbitrator into believing that there were no more ongoing phone problems affecting my business.

I use the two following Telstra FOI documents, folio I00271 and I00265 (see Our Saga File N0 3-A to 3-C) as a testament that the TIO knew my ongoing billing faults continued for years after my arbitration. Government records showing the TIO misled and deceived government ministers, over many years, concerning the validity of my claim. Telstra FOI document folio I00271 (File N0 3-A), dated 24 October 2002 has been used here to support that the TIO was fully aware of the ongoing telephone and faxing problems being experienced by Darren and Jenny Lewis after they purchased my business. This document folio I00271 states:

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

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

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

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

I have highlighted FOI folio I00265 because it is a good example of how valid claims against Telstra was so easily be hidden from the relevant Minister in government, i.e., if the TIO became involved. 

It is clear from the above statement that these ongoing faults at Darren and Jenny Lewis.’ business would remain hidden if the then Minister (which was then-Senator Richard Alston) and the Member (which was The Hon David Hawker were kept “out of the equation.”

These were the same ongoing telephone faults that the arbitrator failed to investigate during my arbitration.

In August 2009 Darren and Jenny Lewis walked off the property as the result of a bankruptcy court order. The camp was sold for less than $600,000, even though the local real estate broker could have sold it two years previous for $1.2 million dollars (refer Cape Bridgewater Eco-Tourism Venture -) 

Chapter 12

Summing up the years

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

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

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

Three times I have complained to the Institute of Arbitrators. The first I have already described in Chapter 9. Then in 2001 the Institute agreed to investigate fresh evidence. This was the time Mr Nosworthy informed me the arbitrator was not qualified in the course of my arbitration. Despite this, the Institute found there was no case to answer. Finally in July 2009, the Institute of Arbitrators Mediators Australia (IAMA), again agreed to investigate further fresh evidence. Among other items of evidence, I submitted the words of the TIO at the Senate Estimates Committee, that the ‘process conducted entirely outside the ambit of the arbitration procedure.’ (See page 99 COMMONWEALTH OF AUSTRALIA - Parliament of Australia.

Institute of Arbitrators Mediators Australia 

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

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

No one has requested them.

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

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

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

The last I heard from the IAMA Ethics and Professional Affairs Committee was in 2014. Despite their agreement to investigate, they refused to hand down any findings. I have asked them on many occasions and their refusal is implacable.

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

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

So, it is true, my arbitration is over. Even so, I am still hopeful for justice from a system that promised to give it to us.

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

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

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

Conflict of Interest

No author should write only part of a story based on fact while leaving out a relevant part of the story because it might be seen as detrimental to another person in the story. A full factual account of what happened during the COT arbitrations is necessary: both the good and the bad.

So, I must raise a conflict of interest that clearly affected the whole outcome of the first four arbitrations. I felt it was best to leave this issue to last.

What has been decidedly the hardest decision for me to make since I began telling the COT storey is exposing the conflict-of-interest issue between Graham Schorer (Golden Messenger) and Dr Gordon Hughes. For Telstra (the defendants in those four arbitrations) to have allowed this the conflict-of-interest issue with existing before the four complainants signed the arbitration agreement in April 1994 suggests that Telstra saw an advantage to their defence by allowing it. I only uncovered this conflict-of-interest issue in 2008, after Graham Schorer asked me in August 2006 to write several reports concerning the COT story. 

After I had exposed to Graham/Golden how his conflict-of-interest with the arbitrator had benefitted him and not the other COT Cases and that this conduct by Dr Hughes was more than questionable and had the senate knew about this conflict of interest issue at the time of their 1997 to 1999 (Freedom of Information) investigations, this would have been enough for the senate to instigate a full-blown Senate hearing, and he wanted to the right the wrongs by submitting to the senate the reports I was writing.  This providing my reports to those senators he had met in Canberra would help him to live with what he had done. This was to be his redemption. He felt ashamed for having benefitted from his previous association with Dr Hughes, and the other COT Cases had not.

Some years into my research regarding Graham’s involvement in the COT arbitration’s I uncovered Dr Gordon Hughes had been assisting Graham/Golden in his Golden Messenger business enterprise as well as acting as his Federal court lawyer during the early part of Graham’s previous 1990 to 1993 court action against Telstra. These were the very same technical issues he was appointed by the TIO in 1994 to assess as arbitrator in all four COT claims against Telstra.

When I asked Graham to please explain why he had concealed this conflict-of-interest from me before arbitration as well as before commissioning me to write the COT story; he wrote the following document exhibit GS 565 file GS-CAV 459 to 489 as a compromise if I would continue with the project at hand.

For the second time within days, Graham again confided in me his sense of guilt for not exposing this conflict of interest during the period the Senator was investigating his Freedom of Information FOI matters which awarded him 3,600 million dollars. He felt guilty as the COT spokesperson for not having done more for the remaining (sixteen COT Cases who also had the same FOI problems with Telstra during their various litigation processes). I reiterate his paying for me to expose this whole dreadful saga was his way of righting his wrongs for not having done more as the COT spokesperson.

It is as important to look at this conflict-of-interest issue from the perspective of the other COT claimants as it is to look at it from Graham’s perspective because, as Graham’s earlier legal advisor in both his business ventures and his Federal Court Telstra matters. Because if Dr Hughes, as Graham alleges, he did know about the concealment of important documents Graham/Golden litigation against Telstra in the Federal court from 1990 to 1992, then we three COT Cases Ann Garms, Maureen Gillan and I were entitled to have been briefed on this matter. The fact that Telstra and the Establishment got away with this during a federal court action is one thing, but for Dr Hughes and/or members of the legal firm to which Dr Hughes was a senior partner appear to have also been party to this concealment brings a massive cloud over the COT four arbitration just three years later, when Telstra concealed similar documents from all of the four COT cases during their arbitration, in which Dr Hughes was the arbitrator. 

Possibly even worse for the other two COT Cases and I is that Dr Hughes allowed Graham/Golden an extra three or more years longer to access their documents from Telstra, over and above what he allowed us, three COT claimants, even though the official arbitration rules did not permit this. Dr Hughes only allowed me one extra week to access my documents from Telstra shows how this conflict of interest tainted the whole arbitration process.

Before the government communications regulator, AUSTEL (now AMA) endorsed Dr Gordon Hughes as the independent arbitrator they had a duty of care to advise the COT Cases in writing that Dr Hughes was not an experienced arbitrator and had not been graded by the Institute of Arbitrators Australia to perform such complex arbitrations as the COT four processes. AUSTEL did not. Could you inform us of this fact?

Dr Hughes himself also failed his duty of care as a pending arbitrator to COT Cases Ann Garms, Maureen Gillan, and me in writing as per the rules of the Victorian Arbitration Act that he had a conflict of interest with the fourth claimant Graham/Golden. And to add further salt to the COT Cases future wounds was that Graham Schorer, in his capacity as COT spokesperson failed to disclose to us three other COT Cases (refer exhibit GS 565 file GS-CAV 459 to 489) that we should not send arbitration related faxes to Dr Hughes’ Melbourne office after the closing of business each day; otherwise, they may not arrive at their intended destination.

Front Page Part One File No/1 shows the arbitrator’s secretary advised Tony Watson (of Telstra’s arbitration defence unit) that on 23 May 1994, six of my claim documents did not reach the arbitrator's fax machine. Yet, I was charged on my Telstra account for those six faxes. Why was this matter not investigated? NO one from the arbitrator’s office or the TIO’s office allowed me to amend my claim so that the not received claim documents could be valued as part of my arbitration process.

Why didn’t Dr Hughes (as the arbitrator to my case) also explain to me as he did to Graham Schorer (refer exhibit GS 565 file GS-CAV 459 to 489) that my 23 May 1994 faxed claim documents might be in his Sydney office? Did Dr Hughes believe by exposing this faxing problem with his Sydney office halt the arbitration process in my favour? Was Dr Hughes worried by exposing to me the flaws in his own two offices concerning the possibility this is where my other lost faxes ended up this admission would bring an end to him remaining the arbitrator to the COT arbitrations?

Firstly, had Graham (as the COT spokesperson disclosed to the COT Cases before, we signed our arbitration agreement, we would have been in our rights to demand Dr Hughes supply an efficient faxing system throughout our arbitrations.

Secondly, we could have used this faxing problem between Dr Hughes Melbourne and Sydney office to support any arbitration appeal in the period allowed in our arbitration agreement.

It is important to link these unaddressed lost arbitration faxes to both my case and that of Ann Garms (now deceased), because it is well written between us, lost many faxed arbitration-related documents.

Ann Garms (one of the other COT Cases) spent over $600,000.00 in her arbitration appeal in the Supreme Court of Victoria against Dr Hughes. Ann might have had a more favourable outcome of this appeal which she lost had she and her lawyers known of Dr Hughes admission to Graham Schorer before the commencement of our four arbitrations. 

Please visit our website for more stories of injustices experienced by other Australian citizens who have only ever wanted the truth to be exposed concerning their stand against the bureaucratic bubbling by the Australian justice system.

 

 

AS - CAV 1 to 47 - AS-CAV 48-A to 91 - AS-CAV 92 to 127 - AS-CAV 128 to 180 - AS-CAV 181 to 233 - AS-CAV 234 to 281 - AS-CAV 282 to 323 - AS-CAV 324-A to 420 - AS-CAV 421 to 469 - AS-CAV 470 to 486 - AS-CAV 488-A to 494-E AS-CAV 495 to 541 -AS-CAV 542 to 588 - AS-CAV 589 to 647 - AS-CAV 648 to 700 -  CAV Exhibits 701 to 756 AS-CAV 765-A to 789 - AS-CAV 790 to 818 - AS-CAV 819 to 843 - AS-CAV-923 to 946  AS-CAV 1150 to 1169 - AS-CAV 1069 to 1102 - AS-CAV 1103 to 1132 AS-CAV-1002 to 1019 - AS-CAV-996 to 1001 

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

APPENDIX A

 

By using this appendix as the conclusion to our COT story it  has allowed me to add to the story two important issues without breaking the flow of the story. 

On 26 July 2008, thirteen years after the arbitrator  disallowed his technical consultants the extra weeks, they advised him was needed to fully address all of my arbitration claims these same unaddressed issues were again raised during my first 2008 Administrative Appeals Tribunal (AAT) Freedom of information (FOI) hearing (No V2008/1836) I provided Mr G.D. Friedman, Senior AAT Member hearing my case evidence showing the government communications regulator either deliberately or by not understanding the law as they should have provided the defendants of my arbitration namely Telstra and advantage that crippled any chance of me conclusively proving to the arbitrator the phone problems raised in my claim were still affecting the viability of my businesses endeavours.

On 26 September 2008, in my correspondence to Ms Regina Perton, Administrative Appeals Tribunal I noted: