Please note absentjustice.com is a work in progress last edited May 2019.
It is important to advise newcomers to absentjustice.com that various exhibits are linked in the text: for example, FrontPage Part One File No/1, Main Evidence File No/3 or Prologue Evidence File 1-A to 1-C. Clicking on these links with your cursor will automatically open a PDF of the exhibit. By using this method and following the various file nos discussed in our various pages (see menu bar above), you will be able to verify our story. Without these documents, most people would really struggle to believe these appalling events actually happened during government-endorsed arbitration processes. Without the evidence files available on absentjustice.com, publishing my forthcoming manuscript, see following link > My Story, would be a futile exercise.
Until the late 1990s, the Australian government fully owned Australia’s telephone network and the communications carrier, Telecom (today privatised and called Telstra). Telecom held the monopoly on communications and let the network deteriorate into disrepair. When four small business owners had severe communication problems, they went into arbitration with Telstra. The arbitrations were a sham: the appointed arbitrator not only allowed Telstra to minimise the Casualties of Telstra (COT) members’ claims and losses, but the arbitrator also bowed down to Telstra and let the carrier run the arbitrations. Telstra committed serious crimes during the arbitrations yet, up to this day, the Australian government and the Australian Federal Police have been unable to hold Telstra, or the other entities involved in this deceit, accountable.
When the Liberal National Party Coalition Government won office back in March 1996, they promised to investigate the conduct of the TIO-administered COT arbitrations and provide proper justice to those COT Cases who had been wronged by the appointment of a very inexperienced arbitrator. Will the Hon Scott Morrison, who is now the new Prime Minister of our great nation, Australia, finally make good on the promises that were given to ALL twenty-one COT claimants twenty-three years ago (see An injustice to the remaining 16 Australian citizens), and ensure that they all receive both the documents they need to prove their arbitration claims and the justice they were denied?
My name is Alan Smith. This is the story of my battle with a telecommunications giant and the Australian Government, a battle that has twisted and turned, since 1992, through elected governments, government departments, regulatory bodies, the judiciary, and the Australian telecommunications giant, Telstra, or Telecom, as it was known when this story started. The quest for justice continues to this day.
My story started in 1987 when I decided my life at sea, where I had spent the previous 20 years, was over. I needed a new land-based occupation to see me through to my retirement years and beyond. Of all the places in the world I had visited, I chose to make Portland my home.
My business is hospitality, and I had always dreamed of running a school holiday camp. Imagine my delight when I saw the Cape Bridgewater Holiday Camp and Convention Centre advertised for sale in The Age newspaper. It was located in rural Victoria (Australia), near the small maritime port of Portland. Everything seemed perfect. I performed my “due diligence” to ensure that the business was sound; or at least, all of the due diligence I was aware I needed to perform. Who would have guessed that I had to check whether the phones work? Within a week of taking over the business, I knew I had a problem. I was hearing from customers and suppliers alike that they had tried to call and couldn’t get through to me.
Yes, that’s right. I had a business to run and a phone service that was, at best, unreliable, and at worst, just not there at all. Of course, we lost business as a result.
And so, my saga begins. It has been a quest to get a working phone at the property. On the way I have received some compensation for business losses and many promises that the problem is now resolved. It was not resolved.
Other independent business people similarly affected by poor telecommunications have joined me on my journey. We are known as the Casualties of Telecom, or the COT cases. All we ever wanted is for Telecom/Telstra to admit to our various problems, fix them all, then pay compensation for our losses. A working phone: is that too much to ask?
We initially asked for a full Senate investigation into Telecom in general and these issues in particular. We were offered, as an alternative, an arbitration process. It seemed like a good way to resolve the problem so we accepted this alternative. At this early stage, we honestly expected that the technical problems that prevented our phones from working would be resolved.
No such luck. Suspicions that something about the arbitration process was not quite right started almost immediately. We had been promised that the Telecom documents we needed to make our case would be made available to us if we entered into arbitration. Despite the promise, they have never been made available, and we still do not have those documents to this day. We were further troubled when we discovered that, during the arbitration process, our fax lines were being illegally tapped – hacked. Lacking government back up and support, our claims were not investigated, even though the evidence provided to the government (see Australian Federal Police Investigations) supported our claims.
It is important to view page 5163 SENATE official Hansard because it proves systemic criminal conduct did exist within the Telstra Corporation as the COT arbitrations were about to proceed and because it shows that the corruption was certainly real and not a figment of our imaginations or the imaginations of a very young Julian Assange and his hacker mates who telephoned COT Case spokesperson Graham Schorer to advise him they had hacked into Telstra’s network and located evidence that crimes were being committed against the COT Cases during our arbitrations.
Page 5169 in this SENATE official Hansard confirms a number of senators discuss a legal firm and its strategy advising how Telstra can conceal technical information from the four COT cases under Legal Professional Privilege, even though the documents were not privileged. The COT strategy is available at download Prologue Evidence File 1-A to 1-C. The named author of this COT strategy, FOI folio N00750 dated 20 September 1993, is the same lawyer who I was forced to register each of my phone complaints with, in writing, before Telstra would respond. NONE of the fault information I provided to this lawyer, concerning my ongoing telephone problems and Telstra’s response to those problems, were ever released to me during my arbitration.
Folio N00750, shows this lawyer named Graham Schorer, Ann Garms, Maureen Gillan and me and our businesses as the four main COT cases who were to be targeted. The day before the Senate committee uncovered the COT Strategy, they were also told under oath, on 24 June 1997 see:- pages 36 and 38 Senate – Parliament of Australia/from an ex-Telstra employee and then-Whistle-blower, Lindsay White, that, while he was assessing the relevance of the technical information which had been requested by the COT claimants, he advised the Committee that: we [the same four COT case] had to be stopped at all cost from proving our arbitration claims (see Chapter Two a kangaroo court), the hackers had been right, we were never meant to win our claims.
The following statements are taken from Graham Schorer’s Statutory Declaration (See Hacking – Julian Assange File No/3)
“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 [sic] 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.”
After contacting me to discuss this offer, Graham and I decided not to accept this information. We were of the belief that accepting damning evidence outside the due process of discovery and/or FOI could be seen as acting unlawfully.
It is now apparent from two publications – one titled The Most Dangerous Man In The World by renowned investigative journalist Andrew Fowler and the other by Dr Suelette Dreyfus and Julian Assange, titled Underground – that it was Julian Assange and his companions who contacted Graham.
Enter the Hackers
Although we have mentioned Julian Assange a number of times in our story, that is not because we intend, in any way, to promote his activities around the world, our only contact with Mr Assange was back when he was one of the young hackers who contacted Graham Schorer, when Graham was the official COT spokesperson, warning him they had uncovered damning information concerning our arbitrations. That information was related to how Telstra, and others, had been acting outside the law to our detriment. At the time, we alerted the administrator of our arbitration process to this information and the administrator then advised Graham that the hackers had been ‘apprehended’, but he would not tell Graham what he and/or the authorities had uncovered during their investigations into the information the hackers wanted to share with us. Sometime later the same administrator was advised, by his own arbitration unit, that there had been ‘forces at work’ that had ‘derailed’ the COT arbitrations (see Chapter One Prologue page. Once again the hackers had been right.
On 26 September 1997, after most of the arbitrations were concluded, John Pinnock, the administrator of the arbitrations, formally addressed a Senate estimates committee advising that the arbitrations:
“were to be governed by the Commercial Arbitration Act of Victoria. Significantly, that provides that an award by the arbitrator is registrable as an order of the Victorian Supreme Court, and the act confers basically what is a limited right of appeal against any award by the arbitrator. …
“In the process leading up to the development of the arbitration procedures – and I was not party to that, but I know enough about it to be able to say this – the claimants were told clearly that documents were to be made available to them under the FOI Act. …
“Firstly, and perhaps most significantly, the arbitrator had no control over that process, because it was a process conducted entirely outside the ambit of the arbitration procedures.” (See pages 98-99 in the following > COMMONWEALTH OF AUSTRALIA – Parliament of Australia link)
Firstly, there is no amendment attached to the arbitration agreement the claimants signed that allows the arbitrator to conduct those particular arbitrations entirely outside the ambit of the arbitration procedure – and neither is it stated that the arbitrator will have no control over the process once we sign those individual agreements. How can the arbitrator and TIO continue to hide under the confidentiality clause contained in our arbitration agreements when that agreement did not mention the arbitrator would have no control over the process or that it would be “conducted entirely outside the ambit of the arbitration procedures”?
Secondly, the TIO office continually instructed the COT cases to appeal their awards if they were not happy with the arbitrator’s findings, while fully aware of the “limited right of appeal against any award by the arbitrator”.
In my own case, the Hon Tony Staley, chair of the TIO council, applied pressure to me to appeal my award on 7, 13 July and 29 October 1999, noting, “you have never exercised any rights to appeal the Award under the Victorian Commercial Arbitration Act (Vic)”. (See TIO Appeal Letters 1-A to 1-C)
Almost five years later, on 25 March and 29 July 2004, the chair of the TIO board, John Rohan, also wrote to me, stating:
“Despite many criticisms of the procedures the Board also notes that at no time did you seek to exercise the right of appeal provided by the procedure.” (See TIO Appeal Letters 1-D to 1-E)
These five TIO Appeal Letters 1-A to 1-E and similar letters tempting me to look at an appeal were sent, regardless of the chairs of the TIO board and council being fully aware Ann Garms, a COT case did appeal the arbitrator’s award in 1996 at a cost well over $600,000 (See Ann Garms Supreme Court of Victoria – Part 1 and Ann Garms Supreme Court of Victoria – Part 2), Ann lost her appeal.
Conflict of Interest
Unbeknown to Maureen Gillan, Ann Garms and me, Dr Hughes (the arbitrator) had previously worked as a business advisor to Graham Schorer, the fourth COT claimant, and he was part of the legal team Mr Schorer used for his 1990-1993 Federal Court action – also against Telstra. Therefore, when Dr Hughes officially accepted his role as the COT arbitrator in January 1994, without disclosing this conflict of interest, caused by his previous association with Mr Schorer, he compromised all four COT arbitrations.
A letter from Michael Shand barrister at Owen Dixon Chambers (Melbourne) to Landers & Rogers for the Attention of Mr Gordon Hughes or Mr Michael Champion’s dated 15 June 1990 (see G.S. Conflict of Interest File 4 to 5) confirms Mr Gordon Hughes and a number of lawyers from Landers & Rogers were heavily involved in Mr Schoer’s Telstra Federal court action against Telstra from 1990 to 1992. This letter from Mr Shand, confirms that Mr Hughes was one of the principal lawyers involved in Mr Schorer’s Telstra Federal Court action prior to accepting his role as the COT cases arbitrator in April 1994.
If the current government in 2019, was to assess Telstra’s previous 1990-1993 Federal Court documents and their later their 1994-1996 arbitration documents, they would conclude the arbitrator was for a second time assessing the same Telstra-technical documents he had previously assessed as Mr Schorer’s legal advisor during his earlier Federal Court action against Telstra. Thus, the arbitrator already knew Graham had suffered a grave miscarriage of justice during his Federal Court action. Perhaps this is why, either subconsciously or deliberately, he allowed Graham more than two years longer than he allowed the other three claimants Ms Gillan, Ms Garms and me to prepare our claims.
On 21 November 2012, Mr Schorer produced a letter of understanding that included the wording:
“During the period that I retained Landers & Rogers, at no stage was I informed by Gordon Hughes or any other member of Landers & Rogers staff, that Telecom or the Australian Government Solicitor contacted them with information regarding the North Melbourne exchange. …
“Furthermore, had I known that Gordon Hughes had concealed knowledge of such an important document from me, I would not have accepted his appointment as the arbitrator in my arbitration process.” (See G.S. Conflict of Interest File 1)
This Australian Government Solicitor (AGS) letter is important because, when the arbitrator was appointed as the official arbitrator to the COT arbitrations, he did not advise Mr Schorer of the AGS letter, or the fact that documents were concealed from him during his Federal Court action by his own legal firm, where Dr Hughes was a senior partner.
In the official April 1994 government communications regulator’s AUSTEL COT Cases report, at point 5.67, the government notes, “the arbitrator is to be a person of clear impartiality, independence and integrity”, etc. It will be clear to the current government that Dr Hughes did NOT have clear impartiality or independence when the COT cases accepted the government’s assurance that he was. Does the government not have a moral obligation to investigate the complaints of each COT? Again: the government assured us Dr Hughes was impartial and independent and therefore his judgement could be trusted.
Before the arbitrations actually began
Before the arbitrations actually began, the arbitrator was provided with a report that was officially submitted to all parties involved in the first four arbitrations as well as various government ministers. This report, dated 13 April 1993, states, at point 5.78: “an agreed standard of service, being developed in consultation with AUSTEL [the then government communications regulator] to be applied to any case subject to settlement is essential”. It is clear from this 258-page report, and other similar statements made by AUSTEL, that no finding by the arbitrator could be brought down until Telstra had proved it had fixed all of the ongoing telephone problems being experienced by those entering settlement and/or arbitration. After all, what was the purpose of an arbitration process if the claimants’ businesses were still affected by the ongoing problems that brought them into the process in the first place?
Point 5.25, 5.29 and 5.32 in this same report AUSTEL Evidence File 1-A the government states:
“…Mr Smith was the first of the original COT Cases to reach an initial ‘settlement with Telecom. It is understood that he: identified the type of faults which his business had experienced. Mr Smith has informed AUSTEL that his major concern and stipulated condition at the time of ‘settlement’ was that his service should operate, and continue to operate, at normal standards”.
“The fifth of the original COT Cases, Mr Schorer, had particular concerns about Telecom’s limited liability and the impact that the limitations was likely to have on any claim he might make for compensation arising from an inadequate telephone service.
“The fact that faults continued to impact upon the businesses in the period following the settlement shows a weakness in the procedures employed. That is a standard of service should have been established and signed off by each party. It is a necessary procedure of which all parties are now fully conscious and is dealt with elsewhere in this report. Its omission as far as the initial ‘settlement’ of the original COT Cases were concerned meant that there was continued dissatisfaction with the service provided without any steps being taken to rectify it. This inevitably led to a dissatisfaction with the initial ‘settlement’ and to further demands for compensation. To avoid this sort of problem in the future, AUSTEL is, in consultation with Telecom, developing –
- a standard of service against which telecom’s performance may be effectively measured;
- a relevant service quality verification test.
In the technical report prepared by Brian Hodge, BTech, MBA (B.C. Telecommunications) on 27 July 2007, after viewing the Cape Bridgewater Holiday Camp (SVT) CCAS data for the date Telstra alleged they had carried out their SVT process at my premises Mr Hodge states:
It is my opinion that the reports submitted to Austel on this testing programme was flawed, erroneous, fictitious, fraudulent & fabricated, as it is clear that no such testing has taken place as Telstra’s own call charge system DOES NOT record any such activities. Therefore the results are flawed or did not occur” (See Main Evidence File No 3)
Mr Hodge, was even further shocked when I told him, no-one informed the COT four that Dr Hughes was not graded by the Institute of Arbitrators Australia, and therefore may have misunderstood the significance of the SVT process which had to be applied to all of the COT Cases businesses who were to go through the government endorsed arbitration process.
Warwick Smith the first (TIO and administrator to the arbitration process) and Dr Hughes (the arbitrator) withheld their knowledge from elected members of parliament, the Institute of Arbitrators Australia and the four COT claimants that they had allowed the defendants’ lawyers to draft the arbitration agreement. The same agreement that Dr Gordon Hughes advised Warwick Smith, on 12 May 1995, was not a credible document to have used in my arbitration but used it anyway (see Chapter Five Prologue page.
Did Dr Hughes never stop to think for one moment that there were so many deficiencies in the agreement because it was planned that way, deliberately, by this legal firm, who spuriously developed the COT Strategy (see page 5169 in this SENATE official Hansard) with one aim in mind: to benefit their client? Regardless of what went through Dr Hughes’ head however, he should never have used an agreement that he himself branded as ‘not credible’ to deliberate on my claims.
I learned that Dr Hughes was NOT a graded arbitrated from Mr Nosworthy, President of IAMA on 10 April 2002 when he advised me that:
“Dr Hughes has written to me expressing uncertainty as to whether he was a member of the Institute of Arbitrators Australia at the time of the arbitration. Although our records indicate that he was a member, he was not at the time a graded arbitrator within the Institute, and was not included on the Register of Practicing Arbitrators untill well after he delivered the award in your matter on 11 May 1995″.
On 10 September 1996, I had previously received a similar letter from the then president of the Institute of Arbitrators Australia Mr J.J Muirhead who wrote:
“I am advised by our Chief Administrative Officer that no reference was made to us in the appointment of the arbitrator in the matter in which you are involved and there is always a risk in these circumstances.”
It was clearly risky of the TIO to appoint an arbitrator to so many complex arbitrations if that arbitrator was not sought through the Institute of Arbitrators Australia.
By clicking onto kangaroo court and Chapters One to Five in our Prologue page, you will be able to determine whether allowing a none graded arbitrator to administer so many arbitrations was a massive blunder (a terrible mistake), that has still not been rectified by the Telecommunications Industry Ombudsman.
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.
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