Burying The Evidence is a work in progress – last edited in March 2019.
Burying The Evidence is designed to help the reader fully understand the ramifications of what occurred. The COT cases were formally advised before we signed our government-endorsed arbitration agreements, that we would receive the documents needed to fully support our claims (see Arbitrator File No/71). When this government promise was broken and we were left without the documents to fully support our claims, this set up a trail of events that have now left us COTs as victims of a crime (a giant cover-up by the Australian Establishment) in order to protect Telstra at all cost.
While the following ‘COT strategy’ has been discussed elsewhere on absentjustice.com we have also raised it here because of the promises we received from AUSTEL (now ACMA) that Freehill’s, who put that strategy together, would not be used in any way, in connection with our arbitrations. As absentjustice.com shows, however, not only were Freehill’s appointed as Telstra’s main arbitration defence lawyers, and not only did they produce the COT strategy, but they also assisted Telstra in drafting the COT Arbitration Agreement that was used for the first four COTs to go through the process. In simple terms, the promises made to the four COT Cases concerning the use of Freehill’s, and the COTs’ rights to have an independently drafted arbitration agreement never eventuated. It is therefore most important that the 25 June 1997 SENATE Hansard record is raised here, again.
On 25 June 1997, the day after the Senate committee were told we five COT cases had to be stopped at all cost from proving our claims, a number of senators discussed Telstra’s legal firm and its COT strategy, dated 20 September 1993. This strategy advises how Telstra can conceal technical information from the four COTs under Legal Professional Privilege, even though the documents were not privileged (see SENATE Hansard, page 5169). The COT strategy is available at Prologue Evidence File 1-A to 1-C
The author of this COT strategy is the same lawyer with whom I was forced to register each of my phone complaints, in writing, before Telstra would address these problems. NONE of the fault information I provided to this lawyer, concerning ongoing telephone problems and Telstra’s response to those problems, were ever released to me during my arbitration.
To add further insult to these injustices, on 12 September 1994, as part of the arbitration process, I was obliged to meet with Telstra’s consulting forensic psychologist in Portland’s Richmond Hotel so he could analyse my mental health as part of Telstra’s defence of the arbitration process. One of the most important issues I raised with him was the trauma I suffered at the hands of the legal firm that hired him. He appeared to listen carefully to what I described and he said being directed to register phone complaints, in writing, with Telstra’s lawyer, before they would be investigated, was most disturbing. I provided confirmation that losing six incoming calls in a single day was common. Writing to a lawyer, explaining lost calls, was more than just soul destroying, it just about broke my will power to carry on. He said he was shocked Telstra and its legal firm forced this on me and agreed this would certainly affect my mental state over the many months I had to do this.
However, when Telstra’s lawyers, which the government assured us would not be used in our arbitrations (see Prologue Evidence File No/2), provided this clinical psychologist’s witness statement to the arbitrator, it was only signed by a lawyer from this legal firm. It bore no signature of the psychologist and didn’t contain his concerns regarding me having to first contact this legal firm, in writing, before Telstra would address my telephone problems. The witness statement includes comments such as, “In my professional opinion his preoccupation has become a clinical obsession.”
The most alarming points about this unsigned witness statement are:
- Before the psychologist met with me, Telstra’s lawyers provided him with a copy of the Cape Bridgewater Bell Canada International (BCI) addendum report stating 13,590 test calls were carried out, over a five-day period, into the Cape Bridgewater RCM exchange, using the TEKELEC CCS7 monitoring equipment. This report stated the test calls had a 99 per cent success rate.
- Neither the psychologist nor the arbitrator were told tests through the Cape Bridgewater exchange were impracticable: the nearest exchange that could accommodate the TELELEC CCS7 equipment was the Warrnambool exchange, 120 kilometres from Cape Bridgewater (see Telstra’s Falsified BCI Report ‘masked identities’)
Had the psychologist known the 13,590 tests calls, allegedly carried out by BCI, could not terminate through the TEKELEC CCS7 monitoring system at Cape Bridgewater, his assessment of my mental state would have been somewhat different. He, too, might have been distressed if he had been aware Telstra misled and deceived him prior to him assessing my mental state.
In the same Senate Hansard, dated 24 June 1997, in which Lindsay White says he was told to “stop these people at all costs”, similar injustices COT case Sandra Wolfe experienced during a Mediation Process in the early 199o’s are discussed. These injustices included her having a warrant executed against her by Telstra employees under the Queensland Mental Health Act (see pages 82 to 88, Introduction File No/9). Had Sandra not acted in the manner she did, it is possible she could have been lost in an institution for the insane. Addressing Telstra, Senator Schacht says:
“No, when the warrant was issued and the names of these employees were on it, you are telling us that it was coincidental that they were Telstra employees.” (p87)
Is this warrant issued under the Queensland Mental Health Act, against Sandra Wolfe, akin to the false information provided by Telstra to the clinical psychologist before he assessed my mental health? In my case, the consultation by this psychologist was not conducted in private surroundings, but in the Portland Richmond Henty Hotel’s saloon bar! When I questioned this psychologist’s his reason for him choosing this public venue for this consultation his remark was his appointment had been at short notice and he had been unable to require a suitable venue for the date in question. In simple terms, not only did Telstra the defendants in the COT arbitrations control the flow of what documents were provided to the COT Claimants as the above Senate Hansard shows, Chapter Seven Arbitrator / Part Two shows they controlled what relevant procedural documents were also supplied to the arbitrator. Add this into the mix and the fact they also could determine where the arbitration clinical psychologist would hold his assessment process and it becomes obvious the government endorsed arbitration was just a total facade.
The Australian Communications Regulator, AUSTEL, the Arbitrator, Dr Gordon Hughes, the TIO, John Pinnock, and numerous Coalition Government Members of Parliament have all known about this deceptive Telstra behaviour for more than twenty-two years, just as they have all known that it occurred during my Government-authorised arbitration, and just as they have known that this was part of a plan for Telstra to gain an advantage in the whole arbitration process, and create serious detriment to my situation. During that twenty-two years however, NO-ONE has EVER challenged Telstra, or Freehill’s, on my behalf and that means, of course, that this perversion of the course of justice can still not be properly put to rest.
A newspaper article that appeared on 23 March 1999, in the Australian Financial Review, on the conclusion of the Senate Estimates committee hearing into why Telstra concealed so many arbitration documents from the COT cases:
“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 [Telstra] have defied the Senate working party. Their conduct is to act as a law unto themselves.”
One of the main Telstra players Senator Alan Eggleston referred to when he said, “They [Telstra] have defied the Senate working party. Their conduct is to act as a law unto themselves” was Sue Laver (now Telstra’s corporate secretary). Front Page Part One File/No15-A and Front Page Part One File/No 15-B shows Sue Laver was in possession of Senate working party COT case technical information confirming Bell Canada International Inc (BCI) test were impracticable. As this is the case, why are my claims being ignored?
TIO Board and Council
Telstra’s corporate secretary Jim Holmes was advised in three emails TIO Evidence File No 7-A to 7-C: A01554, A06507, and A06508) that the Leopard Fault data – Telstra’s technical data regarding exchange faults – was destroyed after 12 months. Mr Holmes was a member of the TIO board when the first four COT claimants, Gillan, Garms, Schorer and I, signed our arbitration agreements, but it seems Mr Holmes did not warn the government (which, after all, endorsed the arbitration agreements) or the TIO, who administered the arbitrations, that claimants would not be able to support their claims effectively because Telstra destroyed all historical data, at least from 1992 on. Have Telstra and The Hon Richard Alston and his fellow coalition government ministers ever considered what followed, after Telstra kept this serious matter secret? Have Telstra and the Australian government ever considered the financial cost to each claimant as we tried to access information Telstra knew was destroyed years before we went into arbitration? Each COT case accumulated costs that ran into hundreds of thousands of dollars while trying to access this non-existent fault data (and other Telstra data) to support our arbitration claims. Has the Senate ever considered the cost – not just in dollars – of the 18 months many senators spent from 1997 to 1999 assisting the COT cases in attempting to access technical documents that Telstra knew were destroyed years before?
Telstra’s corporate secretary Jim Holmes knew this, as emails A01554, A06507 and A06508 show, and he signed all four FTSP agreements for the four COT cases on 18 November 1993, while he was a TIO board member attending monthly board meetings where COT cases’ arbitration issues were discussed. Yet he never advised the TIO of what he knew concerning the destroyed documents we were trying to access. This situation is an example of why the COT arbitrations were such a mockery of the Australian legal system.
In order to understand how we got here, we need to rewind a little.
As a reward for standing our ground and NOT faltering under the pressure applied by Telstra and their inner circles within the Establishment, but instead pursuing our claims for a better telecommunications service for all Australians, the government agreed the COT four were to be commercially assessed. Representatives from the Australian communications regulator even visited our businesses premises to ensure the government fully understood what we had uncovered. As a further incentive, the 1993 Labor government assured us that if we refrained from pushing for a full Senate investigation into the gross misconduct of Telstra, then the government would ensure our signed 23 November 1993 commercial assessment process with Telstra would be finalised by April 1994.
It was widely accepted by the Australian government that, because of the complexity of the first four cases, an assessor (not an arbitrator), appointed by AUSTEL, the government communications regulator, would value each case commercially and save the claimants’ time, money and heartache. The following link, Introduction File No/13-A to 13-M, shows, undoubtedly, that our four individual claims were always meant to be commercially assessed.
On 5 October 1993, AUSTEL’s chair Robin Davey provided a draft of the COT Cases Settlement Proposal to Mr Ian Campbell, Telstra’s commercial managing director. This proposal was to be used in the four COT cases’ Fast Track Settlement Proposal (discussed below). The draft notes at point 40:
“Finally, if the attached letter (Attachment ‘D’) dated 7 July 1993 from Freehill, Hollingdale & Page to one of the COT Cases’ solictiors is indicative of the way that Freehill, Hollingdale & Page have approached the COT Cases in the past, I would be more than a little concerned if they were to have a continuing role.” (See Prologue Evidence File No/2)
Introduction File No/13-A to 13-M shows the four COT cases were to have their matters assessed commercially. As you read Burying The Evidence, you will see the government communications regulator, the claimants and Telstra all agreed, in writing, the first four COT cases’ claims would be commercially assessed by a loss assessor (not an arbitrator) under the Fast Track Settlement Proposal (FTSP).
If a business is ruined and a government regulator and/or business ombudsman, who has jurisdiction over those matters, agrees to facilitate a process with a corporation, which appears to be responsible and has agreed to pay compensation, then a commercial assessor is appointed. This is an accepted commercial practice when people in business are seeking damages.
The Telecommunications Industry Ombudsman (TIO) media release, dated 17 January 1994, put out by TIO Warwick Smith, the then administrator to the FTSP, states:
“I have appointed Dr Gordon Hughes as Assessor. … for the purposes of the ‘Fast Track’ Settlement process.” (See Introduction File No/13-F)
Yet, as soon as our four signatures were on the commercial agreement, which Telstra signed on 18 November 1993, those in the Establishment who did not want proof to come to light showing our telephone problems were still ongoing, pressured the administrator of the 23 November 1994 commercial agreement, Warwick Smith (TIO), and assessor Dr Gordon Hughes to switch the assessment process for a highly legalistic arbitration process, which the COT four could not possibly win.
Hence, Dr Hughes, originally appointed as the commercial assessor on 17 January 1994 (see Introduction File No/13-A to 13-M, became the arbitrator of seven separate and highly complex arbitration cases and the mediator of two others, all being administered at the same time. This was certainly not how Senators Alston Boswell and other senators were assured the first four cases would be conducted.
Introduction File No/13-A to 13-M shows Dr Hughes was to commercially assess the claims of the first four COT cases. Decide for yourself whether the four COT cases freely accepted having to abandon their FTSP in favour of the more legalistic arbitration process that was forced onto them in April 1994, regardless of having signed the FTSP agreement on 23 November 1993.
During the first week of January 1994, the COTs advised the TIO, administrator of both the FTSP and the Fast Track Arbitration Procedure (FTAP), that AUSTEL’s chair had assured the COTs that Freehill, Hollindale & Page were not to be involved in our FTSP. An internal Telstra email (FOI folio C02840) to various Telstra executives notes:
“Steve Lewis (Australian Financial Review news reporter) is following up on his own yarn NOT with the Davey letter to the minister but with the Davey letter to the CEO raising concerns about our use of Freehill’s.”
Between January and March 1994, when the COTs again spoke to the TIO concerning Telstra using this same legal firm as its FTAP defence lawyers, the TIO’s response was that it was up to Telstra who it appointed as their arbitration lawyers. The TIO made this statement regardless of me having previously advising him I was forced by Telstra to register my phone complaints through this same legal firm, which implied that if I did not do so, then Telstra would not investigate those complaints. (See Prologue Evidence File No/4)
I raised my concerns many times, during and after my arbitration, concerning the arbitrator not addressing this legal firm’s submission of a witness statement only signed by the legal firm and not the person who actually made the affirmation. This is an illegal act in the State of Victoria (see below). Like all of the evidence I provided to the arbitrator and TIO, confirming Telstra relied upon false reporting (see Tampering With Evidence), nothing was transparently done to assist me other than to send this unsigned witness statement back to be signed by the alleged author making the statement.
My appeal lawyers, Law Partners of Melbourne (see Open Letter File No/51-C and File No/51-G) were stunned to learn about this unsigned witness statement issue. They were also astounded to learn none of my fault correspondence (my registration of phone complaints in writing) to Telstra’s legal firm was ever provided to back to me, as it should have been according to the rules of discovery. In fact, Law Partners suggested perhaps Telstra originally appointed this legal firm to be my designated fault complaint managers so any correspondence would form what Telstra believed to be a legal cloak and the ongoing telephone fault evidence I provided to Telstra’s lawyers could be concealed under Legal Professional Privilege (LPP), during the proposed arbitration process. The pressure applied by Telstra to register the worst of my phone problems with Freehill Hollingdale & Page was a deliberate strategy from the very beginning, so the arbitrator could not uncover (during any arbitration process) how bad the service Telstra provided me, during my arbitration, was. The government regulator’s own investigation also confirmed this inadequate service – but this information was concealed from the COT Cases until more than twelve years after their arbitrations had been concluded see AUSTEL’s Adverse Findings and 20111025143553046, 20130627133948062
Telstra’s continued use of this legal firm throughout the COT arbitrations and the arbitrator’s refusal, in my case, to look into why Telstra was withholding technical data under LPP, suggested, at the time, that the arbitrator was not properly qualified as he didn’t seem to understand that Telstra could not legally conceal technical information under Legal Professional Privilege. Indeed, as we later reveal, the arbitrator was, in fact, not a graded arbitrator at all.
Had Telstra’s local Portland technicians (now retried) submitted the truth in their arbitration witness statements provided to the arbitrator on 12 December 1994, concerning how bad they and the government communications regulator knew the Cape Bridgewater network was (see Manipulating the Regulator), then the arbitrator would have had to ensure his arbitration technical consultants investigated my complaints of ongoing telephone problems. As shown in Chapter One of our Prologue page, the arbitrator disallowed his technical consultants the extra time they requested to investigate my claims. If only one of those two local Portland ex-Telstra employees were to come forward and admit they mislead the arbitration process, then the matters concerning my ongoing telephone problems – those not investigated during my arbitration – could be fully reviewed in a new process.
A letter, dated 20 January 1994, from Ms Philippa Smith, Commonwealth Ombudsman to Telstra’s corporate secretary Jim Holmes, notes:
“I received complaints from three of the ‘COT Cases’, Mr Graham Schorer, Mr Alan Smith and Ms Ann Garms, concerning TELECOM’s handling of their applications under the Freedom of Information Act (FOI Act) of 24 November 1993 and 21 December 1993 respectively. …
“All three assert that they require the information to support their submissions to the imminent review in accordance with the Fast Track Settlement Proposal (FTSP) agreed between TELECOM and AUSTEL, and endorsed by the then relevant Minister.” (Home Page – Part One File No/2-A)
On 17 February 1994, during an official pre-arbitration meeting, Graham Schorer (COT spokesperson) asked Dr Hughes to assure us the agreement the COT claimants were being pressured to sign was not Telstra’s proposed rules of arbitration. Telstra’s own transcripts of this meeting (see Open letter File No 54-F) confirm the arbitrator and the TIO’s special counsel both stated, “they had not received this document and had not read it and that it was irrelevant”. However, Burying The Evidence File 9 confirms the arbitrator was provided with a document called “Telstra Corporation Limited – ‘Fast Track’ Proposed Rules of Arbitration” before 18 January 1994, one month before this meeting. Furthermore, combining Open Letter File No/48-B and Burying The Evidence File 8, confirms the TIO office also received a faxed copy of the “Telstra Corporation Limited – ‘Fast Track’ Proposed Rules of Arbitration” on 10 January 1994.
Open Letter File No/48-A, dated 24 January 1994, confirms both the arbitrator and a representative of the TIO’s special counsel read Telstra’s proposed rules. And they actually used that document as the basis for the final arbitration agreement: the version presented to the first four COTs for signing. This was the version we were assured was drafted totally independently. Even at this early stage, the arbitrator and the TIO were already misleading and deceiving the claimants, and all other interested parties, concerning who drafted our arbitration agreement.
Warwick Smith (the first TIO) and John Pinnock (the second TIO) both refused to provide a copy of Telstra’s proposed rules to the COT cases prior to, during or after the COT arbitrations (see Burying The Evidence File 11-A to 11-I).
This letter, dated 23 February 1994, from Telstra’s arbitration liaison officer, to the pending arbitrator notes:
“Telecom is of the view that Special Counsel and the Resource Unit should be accountable for any negligence on their part in relation to the arbitration process, given that these parties are acting in their capacity as experts. Therefore, this clause should not be amended so as to include an exclusion from liability for Special Counsel and the Resource Unit.” (See Open letter File No 54-E)
On 3 March 1994, AUSTEL informed Telstra’s Steve Black it was adamant that, “if the Fast Track Settlement Proposal is to be effective then the COT members must be given access to the documentation in Telecom’s possession necessary for them to prepare their cases”.
AUSTEL’s COT INVESTIGATION
On 21 November 2007, I received from the Australian Communications Media Authority (ACMA), under FOI, a copy of AUSTEL’s original draft findings 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. If AUSTEL (being the government regulator) could not gain access to documents from a government-owned corporation, as Telstra was during this official, government-funded investigation, then what hope did the COT claimants have? Did AUSTEL have a regulatory obligation, as the facilitators of the FTAP, to abandon the signing of the agreement until the COT cases received the documentation they were promised they would receive if they signed the FTAP? The following list identifies some areas where AUSTEL had problems accessing Telstra’s records regarding my service:
Point 43 on page 20 notes:
“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 which should have been to [sic] known to Telecom based on their own routing reporting data.”
Point 48 on page 22 notes:
- “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 notes:
- “AUSTEL has not been provided with the documents on which the conclusions 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 notes:
- “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 notes:
- “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 5.46 on page 95 in the final AUSTEL COT Cases Report notes:
- “Where, 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. Very specific requests were necessary to obtain data which a co-operative approach may well have been expected to deliver. Indeed, throughout this inquiry it has been apparent that Telecom has chosen to interpret AUSTEL’s request for information in the narrowest possible terms. The net effect of this was to minimise the amount of relevant data it put before AUSTEL and lengthen the process necessary to extract it.”
AUSTEL records, dated 3 March 1994, show the following more-adverse findings contained in the following links > Open Letter File No/4, /5, /6, and /7, as well as 20111025143553046 and 20130627133948062, were provided to Telstra in March 1994, one month before Graham Schorer (COT spokesperson) and I signed our arbitration agreements. Providing the defendant with a copy of these findings, showing Telstra destroyed both businesses, while concealing the same from the claimants, prior and during our arbitrations, shows the odds were against Mr Schorer and I even before we signed our arbitration agreements on 21 April 1994. Why is the Australian government still concealing this disgraceful and unethical conduct? When the government communications regulator provided only the defendant with a copy of this report, it breached its statutory obligation (duty of care) to Graham and me. Why has the Australian government not acted on this breach?
Exhibits 20111025143553046 and 20130627133948062. were not released to Graham Schorer until October 2008, 14 years too late to be used in his arbitration or during the Senate estimates investigation into why relevant documents were withheld from him during his arbitration. If AUSTEL had provided its adverse findings against Telstra to Graham and the Senate estimates committee during that 1997/1999 investigation, the committee would have immediately ensured Telstra didn’t pressure Graham into accepting compensation of only 33 per cent of his arbitration claim – and that 33 per cent did NOT include the thousands upon thousands of dollars Graham had wasted on legal fees to prove something the government regulator had already proved!
Chapter Three explains the term ex parte: a Latin phrase meaning on one side only, or by or for one party. An ex parte communication occurs when a party to a case, or one involved with a party, talks, writes or otherwise communicates directly with the judge about issues in the case without the other parties’ knowledge. Under the Judicial Code of Conduct, judges may not permit or consider ex-parte communications in deciding a case, unless expressly allowed by law. This helps judges decide cases fairly, since their decisions are only based only on the evidence and arguments presented to the court and the applicable law. It also preserves trust in the legal and court system.
However, this was not the case prior to the commencement of COT arbitrations, as Chapter Three in the Burying the Evidence page shows. Dr Hughes, the arbitrator, secretly met with the defendant, Telstra, and discussed very important issues concerning the COT arbitrations. The COT cases were not privy to this meeting, which included discussing the exoneration of the arbitration resource unit from all legal liability for negligence, even though the TIO assured the COT cases that the resource unit would be liable to the sum of $250,000 for acts of negligence.
Just as bad was the fact that the arbitrator and the administrator had already secretly agreed with the defendants (Telstra) to use their drafted arbitration agreement and not an independently drafted agreement, which the government and claimants were told, prior to arbitration, would be used.
It is these types of legal issues – the arbitrator not adhering to the rules and codes – and the affect this behaviour had on the independence of the process that we COT cases have been writing about. Sure, the telecommunication issues are of importance, but what Dr Gordon Hughes allowed to happen to decent Australian citizens – and then hid this unlawful conduct under the confidentiality clauses in the arbitration agreement – are the main issues we continue to demand the government investigate.
Points 4 and 5
The 22 March 1994 transcripts of a clandestine gathering, where the COT cases were not represented (see Open letter File No 54-A), shows Telstra’s Mr Chalmers, the author of the minutes, has left out points 4 and 5. Point 6 follows point 3. Where are points 4 and 5?
In attendance at this clandestine meeting were Telstra’s arbitration liaison officer, Steve Black; Telstra’s general counsel, David Krasnostein; Telstra’s lawyer from Freehill Hollingdale & Page, Simon Chalmers; TIO special counsel, Peter Bartlett; arbitrator, Gordon Hughes; and TIO Warwick Smith with his secretary Jenny Henright. Except Jenny Henright, all were lawyers and therefore all knew this was an illegal gathering. What was so important about this meeting that only the arbitrator and defence attended it?
The missing discussion material or questions raised at points 4 and 5 may well be why the parties present agreed to Telstra lawyers drafting the agreement, instead of the independent arbitration agreement the government and claimants were assured would be used. It could also be where Telstra and arbitrator Dr Hughes agreed Telstra would allow the arbitration resource unit first access to all arbitration procedural material (see Arbitrator Part Two Chapter Seven). This allowed the arbitration resource unit to decide which documents Dr Hughes and the claimants would be allowed to see, and which would be discarded. Telstra’s Steve Black wrote to Warwick Smith on 11 July 1994 acknowledging the resource unit would be allowed to vet which documents Dr Hughes would see and which he would not (see Prologue Evidence File No 7). The arbitration resource unit, Ferrier Hodgson Corporate Advisory, admitted, in writing, to Dr Hughes that they concealed at least four relevant billing claim documents from the arbitration process (see Open letter File No/45-H). This is discussed more fully below.
Points 4 and 5 in the minutes of this clandestine meeting could be linked to the arbitrator and his arbitration resource unit allowing for the more adverse findings against Telstra to be covertly addressed outside the legal arena of the COT arbitration process. If the addressing of non-addressed arbitration issues had nothing to do with points 4 and 5, then what was so detrimental to the arbitration process that these points were excluded from these minutes? What information was exposed in those two points that Telstra’s lawyers thought it necessary to hide, in case this document, Open letter File No 54-A, ever surfaced, as it has?
Why weren’t the COT cases or their lawyers advised of this meeting? We will never know what was concealed from the COT cases during this clandestine gathering. Dr Gordon Hughes should have never allowed this secret meeting to take place without the COT cases being represented. Most, if not all, Western democracies would expect both the defendants and claimants – and their lawyers – to be present in the judge’s chambers or arbitrator’s office.
This clandestine meeting also covered how to protect – to exonerate – the arbitrator’s consultants from incurring any liability for negligence or being sued. Of course, this was to the detriment to the COTs and our legal right to a have recourse over the arbitration consultants if the resource unit was negligent in their duties. The arbitration resource unit was negligent during my own arbitration process and I was unable to hold them to account for those actions, due to those clauses being removed from my arbitration agreement.
Changes to the arbitration agreement were discussed although no COT claimants or their representatives were advised of this important meeting or proposed changes to the agreement. 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 [TIO Warwick 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)
This is a very serious issue that should have been addressed in 1995, when this was discovered. An investigation 20 years ago would have uncovered that Dr Hughes and Warwick Smith (TIO) used Telstra’s proposed arbitration agreement as the base document for the COT arbitration agreement, rather than using an agreement drafted totally independently of Telstra, as the government (who endorsed the first four arbitrations) and the COT cases’ lawyers were promised. An investigation in 1995 would have also uncovered Dr Hughes’ 12 May 1995 letter to Warwick Smith, condemning the Telstra-based agreement as not a credible document to use in the arbitrations, although he used it in my arbitration (see Prologue Chapter Four).
Upon reading Open letter File No 54-A and the following Prologue page, you will realise – as many others have – arbitrator Dr Gordon Hughes should never have secretly met with Telstra (the defendants), prior to arbitration, to discuss what rules in the arbitration agreement would be removed and which would remain.
On the actual day we signed our agreements, we found liability clauses 25 and 26 removed after our lawyers assessed the agreements (see Open letter File No 54-D). We were told if we did not accept these late changes, then there would be NO arbitration. With our banks declaring they were ready to take over our assets if we could not show settlements were imminent, we had no option by to accept the resource unit and TIO special counsel exoneration from all liability.
The TIO has, to date, declined to explain what circumstances occurred to change this. Who pressured the TIO to allow the advisors to be exonerated from all liability in relation to our arbitrations? Why would the TIO special counsel be “unhappy that Telecom did not appear prepared to allow his firm and exclusion from liability”?
Why it did not occur to neither the TIO nor the arbitrator that, once the directions regarding liability were removed, this would allow complacency to creep through the arbitration process? This is exactly what our absentjustice.com pages show happened.
Had COT cases been represented at this hearing (as we were legally entitled to be), we would have been fully aware prior to 21 April 1994, the day we signed this document, that our rights to fair arbitrations were going to be violated.
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 Alston and Boswell and 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: 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.
The skullduggery that was apparent before the arbitrations even began is also addressed in Chapters Five to Seven in Arbitrator Part One.
On 25 March 1994, Commonwealth Ombudsman Ms Philippa Smith wrote to Telstra’s CEO Frank Blount, stating:
“It was unreasonable for Telecom to require the participants to make further assurances while Telecom was considering the Agreement and thereby denying the participants the opportunity to consider the rules that Telecom wished to have included in the Agreement.” (See Home Page – Part One File No/2-B)
Again, on 6 May 1994, Ms Philippa Smith wrote to Telstra’s CEO, Frank Blount, stating:
“I should be grateful if you would now respond to the outstanding matters raised in my letter of 25 March 1994 ie
Comment on my views that:
- it was unreasonable for Telecom to impose a condition for release of certain documents that the participants make further assurances that they will participate in the FTSP; and
- it was unreasonable for Telecom to require the participants to make the assurances while Telecom was considering the agreement related to the FTSP (the Agreement) and thereby denying the participants the opportunity to consider the rules that Telecom wished to have included in the Agreement.” (See Home Page – Part One File No/2-C)
Regardless of the government, TIO and the relevant minister endorsing COT arbitrations, being aware the arbitrator had no control over the arbitrations (see Arbitrator File No/71), the government only assisted five of the 21 COT cases to resolve their long outstanding claims. (See An injustice to the remaining 16 Australian citizens)
In Australia, like many Western democracies, Freedom of Information (FOI) laws give the general public the right to formally request access to documents held by governments and governmental bodies at all levels, according to a process known as a right-to-know and, if the request is granted, then documents are duly stamped or marked with an official FOI number. As part of any legal procedure there is also a process referred to as discovery. The FOI Act means Telstra should have supplied my first FOI request, in early December 1993, within a 30-day period from the time Telstra received the request. By May 1994 I had only received a very small portion of the documents requested and even this small amount was heavily censored and provided without the required schedule of contents listing what the documents are.
In mid-May, with pressure being applied to Telstra by the Commonwealth Ombudsman, I was allowed to visit Melbourne to look at some FOI documents that Telstra stated it would let me view. I arrived at Telstra House in Exhibition Street a little after nine am and discovered a room was set aside for me from eight am to nine pm.
I was introduced to Telstra FOI staff, including George Sutton and Rod Pollock, and was provided with documents I should have received under my December 1993 and February 1994 FOI requests. One document referred to the MELU telephone exchange, which caused my business massive problems between August 1991 and March 1992 so I asked Mr Pollock if he could supply the document, uncensored. Mr Pollock left and I continued to check documents. Telstra had deliberately defaced so many requested documents, I was unable to decipher or understand where many documents came from or their importance.
I had some documents Telstra previously supplied with me with and, while Mr Pollock was away from the room, I noticed some fax coversheets I had seen before now had different material attached. For example, documents relating to a fault in 1991 were attached to a fault record dated 1993 and stating no fault was found. I was alarmed at this discovery and phoned Detective Superintendent Jeff Penrose of the Australian Federal Police. Mr Penrose responded with words similar to “It is illegal to destroy documents during a discovery process” and explained my attendance at Telstra’s office certainly qualified as an official discovery process. I was escorted out of Telstra’s Melbourne Exhibition Street head office, well before six pm, after I discovered some requested FOI documents were defaced while I was at lunch.
I passed Mr Penrose’s comments on to the deputy TIO, along with samples of the documents Telstra had tampered with (see Burying The Evidence File 2) and I prepared a statutory declaration describing what I had happened and provided it to both the TIO and the arbitrator. (See Burying The Evidence File 1)
Although I tried to get a TIO staff member to visit this viewing room with me to show them what appeared to have been a cleansing process, deputy TIO Sue Harlow refused my request. Even though the TIO was acting as administrator to my arbitration, the TIO office refused to send anyone back with me to Telstra’s FOI viewing room, regardless of the evidence I provided showing this tampering was not just a one-off mistake. Considering that, on 11 January and 11 July 1994, Telstra’s Steve Black wrote to Warwick Smith regarding the TIO-appointed resource unit censoring Telstra documents before the COT claimants were allowed to use them to support their claims, we wonder if this is why no one from the TIO’s office would help to investigate this discovery matter. In the last paragraph of this document, from deputy TIO ombudsman Sue Harlow to Warwick Smith, referring to the proof I left with her confirming Telstra defaced many documents, she notes, “He left an example of this with us (also attached).” (See Burying The Evidence File 2)
Further, on 11 July 1996, as a member of AUSTEL, this same deputy TIO wrote to the Hon Senator Richard Alston, Minister for Communications attaching the sixth status report on AUSTEL’s recommendations of the COT Cases report, which notes on page 12:
“The TIO believes that Telstra has, in all claims, responded in an overly legalistic manner. It has shown a tendency to deny liability under every potential clause of action on the basis of perceived statutory and contractual immunities. It has provided large and detailed defences, often out of proportion to the size or complexities of claims. It has lodged lengthy and detailed requests for further and better particulars in most arbitrations. In short, while the arbitration procedure has sought to relax the legal burdens, Telstra’s conduct has certainly not.” (See Call For Justice Evidence File/87)
I did eventually receive the MELU exchange document I asked Rod Pollock to supply, without the blanking out, but not until 2008, 14 years later, and then it didn’t come from Telstra, but the government regulator (now called ACMA) as FOI folio 95/0603-01 (75). I would have rejoiced in 1994 if I had received the document un-sanitised because it confirms the MELU RVA exchange fault, which advised callers I was no longer trading, was NOT a 16-day fault, even though this is what the arbitrator recorded in his award: the fault actually lasted for more than seven months. AUSTEL must have used this same document to come to the conclusion it recorded regarding this same fault in its critical covert findings (see Open Letter File No/4, File No/5, File No/6and File No/7). It is almost impossible to imagine what I could have achieved with this one un-sanitised document if I had received it when I should have, under the rules of discovery.
As the facilitator of the process, AUSTEL (now ACMA) had a duty of care to inform the minister that AUSTEL was provided evidence confirming Telstra was acting unlawfully during my arbitration by destroying or altering requested FOI documents. Furthermore, had this deputy TIO and other officers of acted appropriately and informed the relevant ministers that Telstra was destroying requested FOI documents, not just withholding them, there could well have been a thorough Senate enquiry into this unlawful conduct by Telstra. (See Tampering-With-Evidence-File-11-A-to-11-B)
This suggests the rumours were correct: the Victorian Commercial Arbitration Act 1984 WAS used as a shield to mask the unethical way in which the COT arbitrations were conducted, a situation we discuss throughout this webpage. This also explains why, on 23 March 1999, after the conclusion of a Senate estimates committee hearing into why this government-owned corporation withheld so many documents from the COT claimants, the Australian Financial Review reported that the chair of the Senate committee, Senator Alan Eggleston, stated:
“A Senate working party delivered a damming 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 [Telstra] have defied the Senate working party. Their conduct is to act as a law unto themselves.’ ”.
When this information is added to the second TIO’s statement that “the arbitrator had no control over the process because it was a process that was conducted entirely outside the ambit of the arbitration procedures”, this certainly adds more weight to the rumours suggesting the arbitrator was forced to use Telstra’s drafted arbitration agreement and it was never his intention to do so. Threats were nothing new to the COT claimants.
Even though the Institute of Arbitrators Mediators Australia (IAMA) agreed to investigate my claims against the arbitrator, they chose not to make a finding on my 21 submissions, without explaining why. Could it be that the COT arbitrations were conducted so appallingly? Could it be that this was not the only instance the Commercial Arbitration Act 1984 has been used as a shield to protect those in power, those who appear to have that same power over the IAMA?
This evidence is now compiled in my manuscript Ring for Justice and on our webpage absent justice.com, telling my story using documented evidence attached as downloads obtained mostly under the Freedom of Information Act (FOI Act). Because the extent of the collusion and deception by so many main players in this saga, we had no other option but to write the story in dated stages showing:
- when the corruption started,
- when the deception became apparent, and
- when the defendants first withheld or destroyed vital evidence and/or intercepted this evidence on route to various parties before allowing it to be redirected to its intended destination.
Sometimes an important issue or document in this story is connected to a number of different events or issues and therefore it is necessary to duplicate the details of such an issue or the references to a document, to ensure all events are properly explained.
A Secret Deal
As mentioned before, on 11 January 1994, even before I signed for arbitration, Steve Black, Telstra’s group general manager of customer affairs, wrote to the TIO advising:
“I also wish to confirm to you my previous advice regarding arrangements made with AUSTEL for the release of documents obtained from Telecom to the four customers currently proposed for the Fast Track arbitration process.
“It was agreed at a meeting between Mr Graeme Ward and Mr Steve Black of Telecom and Dr Bob Horton and Mr Neil Tuckwell [chair] of AUSTEL on 7 January 1994 that:
- “Information obtained from Telecom, in the course of AUSTEL’s regulatory functions, and relevant to any parties involved in a formal arbitration process with Telecom under the control of the Telecommunication Industry Ombudsman (TIO) will only be released after consultation with the TIO and Telecom.” (see Introduction Part Two File /1)
Introduction Part Two File /2 also suggests a secret deal between Telstra (the defendants), the TIO (the administrator) and AUSTEL (the government regulator). A letter, also dated 11 January 1994, from Telstra to AUSTEL’s acting chair, states:
“To this end I wish to confirm the agreement reached between Mr Graeme Ward and Mr Steve Black in a meeting with you and Mr Neil Tuckwell today that:”
- “Information obtained from Telecom, in the course of AUSTEL’s regulatory functions, and relevant to any parties involved in a formal arbitration process with Telecom under the control of the Telecommunication Industry Ombudsman (TIO) will only be released after consultation with the TIO and Telecom.”
Similarly, a letter dated 12 January 1994, from Telstra to AUSTEL’s general manager of consumer affairs, states:
“In accordance with our agreement reached in the meeting with yourself and your Chairman, these documents will be released through the TIO at the appropriate stage of the arbitration process.
“It is my view that the appropriate time for release is after the assessor is appointed and the procedural rules for the arbitration process have been agreed by all parties.
“However, as indicated in our agreement, this decision will be taken in consultation with the TIO.” (See Introduction Part Two File /3)
These letters of 11 and 12 January 1994 are surely linked to the following letter of 11 July 1994 from Steve Black to the TIO, where Telstra states:
“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.” (See Introduction Part Two File /4)
In particular, the statement, “if the resource unit forms the view that this information should be provided to the arbitrator” confirms that, during the very early part of the arbitration process, it was secretly planned that the resource unit would have the power to decide which documents would reach the arbitration process and which would be withheld. The resource unit was to be the primary arbitrator. When this is read in conjunction with the letters of 11 and 12 January 1994, we see a secret agreement between Telstra and Warwick Smith appears to have been contrived months before the four claimants signed their individual arbitration agreements, believing, as did the government, there was to be only one arbitrator.
This, therefore, raises the following questions:
- Since Telstra (the defendants) and the TIO covertly appointed the resource unit to be in charge of deciding which documents were concealed from both the arbitrator and the claimants, does this collusive practice provide a good argument on which to base a claim that the arbitration process should be declared null and void – a mistrial?
- As the TIO was the administrator of the COT arbitrations and allowed this collusive practice between Telstra (the defendants) and the TIO-appointed resource unit, should the existing TIO board and council have to publicly identify who gave the resource unit the authority to act as the primary arbitrator, since it was the resource unit who decided which documents would be assessed during the arbitration process?
The TIO did NOT have the authority to introduce a separate deal into a process being conducted according to a written legal agreement. On page five of the Commercial Arbitration Act 1984, under Part II – Appointment of Arbitrators and Umpires, is stated:
- 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. (See Open Letter File No/21
The Fast-Track Arbitration Procedure Agreement Graham Schorer (COT spokesperson) and I both signed on 21 April 1994 mentions only one arbitrator. There is no written agreement in existence, seen by me, that allows another arbitrator to determine what information the assigned arbitrator will see. It is interesting to collate a number of covert situations put in place by key players in the COT arbitrations and mischievously concealed under the arbitration agreement confidentiality clauses, even though those events took place before the confidentiality agreement was signed. In their 2 August 1996 letter to the arbitrator (copied to the TIO), the resource unit admitted to concealing relevant documents pertaining to my billing issues from the arbitrator during the course of my arbitration.
Concealing relevant documents
Documents available at Open letter File No/46-F to 46-L) show quite clearly that the TIO-appointed Arbitration Resource Unit did deliberately conceal documents so they wouldn’t be investigated during my arbitration, thereby minimizing Telstra’s liability. The Arbitration Project Manager, Mr John Rundell, now runs an arbitration centre at Collins Street, Melbourne, but back on 15 November 1995 he wrote to Mr John Pinnock (see Open letter File No/45-A), who was then the new TIO, acknowledging that relevant 008/1800 billing documents had been withheld from being assessed during my arbitration process. If Mr Pinnock had followed through and properly investigated Mr Rundell’s letter, I could have successfully appealed this part of my arbitration. Even today, in January 2018, if Mr Rundell was to come clean and explain why there was never any assessment of the withheld documents related to the ongoing 008/1800 billing problems, as there should have been, according to the arbitration process (see Prologue/Chapter One), I could still open up this part of my claim in order to APPEAL this part of the arbitrator’s award.
A comparison of Chapters One to Three in the Prologue with Open letter File No/45-A to 45-H will further demonstrate that there was something very sinister going on here, in relation to Mr Rundell’s admission to Mr Pinnock about none addressed 008/1800 billing documents, and Dr Hughes’ reluctance to allow his technical unit the extra time they had requested so they could investigate the 008/1800 billing claim documents that Mr Rundell acknowledges Open letter File No/45-A were never addressed at all. Deliberately minimizing Telstra’s liability this way is actually the equivalent of stealing from the claimant.
Why were the defendants allowed to draft the arbitration rules?
On 13 October 1994, a letter sent by a Telstra whistleblower to Parliament House Canberra and received by the office of the Hon Michael Lee, Minister for Communications, includes allegations against one of the Telstra executives involved in altering and removing information on documents I requested at Telstra’s FOI viewing room. Someone has added a handwritten comment on page one, pointing to this person’s name and noting Warwick Smith [the TIO] “has been critical of [same Telstra representative] on same issues”.
The deputy TIO passed this letter to the TIO, together with my statutory declaration (see Destruction of Evidence / Perverting The Course of Justice/Crimes Act 1958 File No/3), showing I named this same Telstra representative as one of the employees who removed information from requested FOI documents and did not provide the correct documentation. The TIO must have told someone – either in the government or in a regulatory position – that this Telstra representative was named by two different sources. The whistleblower’s letter (see Destruction of Evidence / Perverting The Course of Justice/Crimes Act 1958 Evidence File No/8) states under the heading “Concerns and Issues”:
“Mr Steve Black Group General Manager of Customer Affairs, who has the charter to work to address and compensate Telecom’s ‘COT’ customers as well as the management of other customer issues related to Telecom is involved in and initiates conduct and work practices that are totally unethical…
“There are three main areas in which Steve Black and his senior executives have sought to influence and manipulate:
- Remove or change clear information on the position of liability.
- Diminish the level of compensation payable to COT customers.
- Dismissive of breaches in relation to matters regarding customer Privacy.”
When this document surfaced some four years after my arbitration, it further proved what the COTs were claiming all along: our cases were thwarted before we even submitted our claims. One particular statement on the first page of this letter stands out: the whistleblower names the same Telstra employee I named in my statutory declaration as being part of the FOI unit and who provided me with altered documents in Telstra’s Melbourne office. (See Destruction of Evidence / Perverting The Course of Justice/Crimes Act 1958 File No/3)
The Log Book
On 11 November 1994, John Wynack, Commonwealth Ombudsman office, wrote to Telstra’s CEO noting:
“At the request of[Telstra’s FOI unit], I am notifying you of the details of the complaints made to the Ombudsman by Mr Alan Smith. …
- Telecom claimed that documents given to Telecom by Mr Smith in 1992 had been destroyed or lost. …
- Telecom has lost or destroyed a number of files relating to his contacts with Telecom prior to 1991. …
- Telecom unreasonably delaying providing access to many documents. …
- Telecom unreasonably refused to provide the Portland/Cape BridgewaterLog Book associated with the RCM at Cape Bridgewater for the period 2 June 1993 to 6 March 1994.” (See Home Page File No 10 -A to 10-B)
In my own letter to Dr Hughes regarding the concealment of this logbook (which I continued to seek through the arbitration process), I noted:
“I believe the following fax from the Commonwealth Ombudsman’s Office, is relevant to my claim, and not contrary to the instructions outlined in your letter dated 10th November, 1994.
“In defence of these letters and faxes I would like to state that I believed at the time of writing that I was showing both the reluctance of Telecom to assist me with the Arbitration Procedure and their efforts to inconvenience me in this Procedure. However, I understand the legal reasons you have put forward as to the inappropriateness of forwarding literature back and forth where it may be seen by parties as compromising the confidential undertakings I agreed to abide by.” (See Home Page File No 10 -A)
Was this logbook also concealed from the AFP?
While a sworn statement, dated 10 August 2006, by an ex-Telstra protective service officer is discussed elsewhere on absentjustice.com, I raise this statement here because points 20, 21 and 22 support how important this withheld Portland/Cape Bridgewater logbook was:
“20. …I had cause to travel to Portland in western Victoria in relation to a complaint involving suspected illegal interference to telephone lines at the Portland telephone exchange.
“21. As part of my investigation, I first attended at the exchange to speak to staff and check the exchange log book which was a record of all visitors to the exchange and a record of work conducted by the technical officers.
“22. When I attended at the exchange, I found that the log book was missing and could not be located. I was informed at the time by the local staff that a customer from the Cape Bridgewater area south of Portland was also complaining about his phone service and that the log book could have been removed as part of that investigation. I was not told about this complaint prior to travelling to Portland and when I made inquiries by telephone back to Melbourne I was told not to get involved and that it was being handled by another area of Telstra. I later found out that the Cape Bridgewater complaintant [sic] was a part of the COT Cases.” (See Main Evidence File No 30)
Dr Hughes stated I should not be sending letters to him, the TIO or Telstra unless the letters related directly to my claim.
- I received threats from Telstra after the signing of the agreement.
- Telstra refused to supply requested FOI documents and forced me out of their Melbourne Exhibition Street head office after I discovered some of my requested FOI documents were defaced while I was at lunch. Yet Dr Hughes and Warwick Smith refused to approach Telstra on my behalf and demand Telstra explain those threats.
- The Australian Federal Police were supposed to investigate these threats and did not.
It seemed Telstra controlled the whole arbitration process. This is why I stood out, alone, asking what the #$?* is going on! Where was the Portland Cape Bridgewater exchange logbook? This one document, amongst thousands, on its own would prove my case: my ongoing telephone problems and those of other Cape Bridgewater and Portland residents were real, as the daily recording of those faults, penned into the logbook each day by various technicians, would show. I was on my own, as were the other COT cases. Of course, later the Senate uncovered Telstra withheld most, if not all, of the relevant requested documents. However, the Senate’s findings, regarding this withholding, were tabled three years after my arbitration over. This was three years too late: Telstra had won and concealed that my ongoing complaints were real.
False Witness Statements
If the seven Telstra technicians who provided witness statements to the arbitrator on 12 December 1994, on behalf of Telstra, had actually presented the truth in those statements; if they had admitted that they (and the government communications regulator) knew exactly how bad the Telstra network was in Cape Bridgewater see Manipulating the Regulator and Absentjustice Brief Summary Part 1, then the arbitrator would have had to ensure that his official technical consultants promptly investigated my complaints of ongoing telephone problems. Just imagine what could happen now, if even only one of those SEVEN Telstra employees, or perhaps the government communications regulator, would come forward and admit that they misled the arbitration process! That would then provide me with the opportunity to lodge a claim with the Department of Finance and Deregulation for the Reimbursement of Actual Losses Incurred Due to Negligent/Unreasonable Actions or Inactions of the Commonwealth Government, and that would mean that the ongoing telephone problems that were not investigated during my arbitration could now be fully reviewed under section 33 of the Financial Management and Accountability Act of 1997 (the FMA Act).
During my arbitration, when I went to AUSTEL with my claims of Unreasonable Actions by Telstra’s senior management, all that the then-government communications regulator and the Commonwealth Ombudsman’s office did was to pass those complaints on to the Senate for investigation.
Also during my arbitration, when Telstra began to threaten me because I had assisted the Australian Federal Police as part of the police investigations into the unauthorized interception of my telephone conversations and arbitration-related faxes, I notified the arbitrator (Dr Gordon Hughes) and the then-Telecommunications Industry Ombudsman (Warwick Smith), who was also the administrator of my arbitration, about those threats, but Hughes and Smith simply declined to investigate Telstra. Unfortunately, at that time, I was not aware that, once Telstra had carried out their threats (as they did), I could have demanded that the Supreme Court investigated this matter. If I had done that, and then simply told AUSTEL and the arbitrator that I was refusing to continue with my arbitration until those threats had been fully and impartially investigated by the authorities, that would have put enough pressure on AUSTEL, the arbitrator, and the Commonwealth Ombudsman to insure that I was not penalized, as I have been, these past twenty-two years.
Senate Hansard report dated 26 September 1997, on pages 99 to 100 Mr Pinnock (TIO) discusses the problems the COT claimants encountered when they attempted to access documents from Telstra but he fails to mention that Alan Smith had proved to Mr Pinnock’s predecessor, Warwick Smith, that there were many instances of Telstra’s unlawful behaviour during Alan’s arbitration. Clearly Mr Pinnock was very selective regarding what he chose to reveal to the Senate.
In the second paragraph on page 100 of the Hansard report, in relation to arbitration technical reports – the most important issue in the entire COT arbitration process – Mr Pinnock states:
“Those delays have also been exacerbated by extensive arguments by both sides, but particularly by the claimants, as to the accuracy and merits of the technical evaluation and financial evaluation of reports produced by the resource until, so much so, I might say, that the resource unit has almost been in danger of being dragged into the fray when the original intention of the process was for it to be exclusively and really a matter for advice to the arbitrator.” (see Prologue Evidence File No 12)
Why did Mr Pinnock tell the Senate that the ‘…resource unit (was) in danger of being dragged into the fray’ when he knew (but did not tell the Senate) that, on 11 July 1994, very early in the arbitration process, the TIO and Telstra had secretly agreed between themselves, without consulting the claimants, that the Resource Unit (see Burying The Evidence Chapter Three) would assess all the arbitration documents and decide which were relevant before they were passed (or not passed) to the arbitrator – a decision that immersed the resource unit in the arbitration process (‘the fray’) almost from the very beginning?
How could Mr Pinnock then tell the Senate that “… perhaps the most difficult issue, and one that has bedevilled the arbitrations almost from the beginning, was the inability of the parties to treat these disputes as matters of a purely commercial nature” adding that the parties to the arbitration ‘…were unable to put behind them the attitude of mutual suspicion and mistrust” when he knew that Telstra had, from the very beginning, set out to bamboozle and confuse and cheat the claimants any way they could?
When Mr Pinnock was addressing the Senate in relation to Alan Smith’s case, why didn’t he advise the Senate that he knew that, on 6 May 1994, the Commonwealth Ombudsman, Ms Phillipa Smith, wrote to Frank Blount, Telstra’s CEO, noting that:
“It was unreasonable for Telecom to impose a condition for release of certain documents that the participants needed to make the assurances that they will participate in the FTSP; and it was unreasonable for Telecom to require the participants to make assurances while Telecom was considering the agreement related to the FTSP (the Agreement) and thereby denying the participants the opportunity to consider the rules that Telecom wished to have included in the Agreement.”
Why didn’t Mr Pinnock tell the Senate that: Derek Ryan of DMR Corporate, had written to Mr Pinnock, as the administrator of Alan’s arbitration, on 2 December 1995, to advise Mr Pinnock:
“I worked all day Saturday and Sunday with Alan Smith trying to interpret the FHCA report. After this work I considered that the report was incomplete as the calculations of the FHCA loss figures were not included in their report. On 17 May I telephoned John Rundell and he stated that he was unable to discuss anything with me until the appeal period had expired. During that telephone conversation I told him that I was unable to recalculate the FHCA figures and that I felt that the report was deficient in this regard, he then stated that he understood my problems and that FHCA had excluded a large amount of information from their final report at the request of the arbitrator”?
John Rundell later wrote to Mr Pinnock (13 February 1996) confirming that he had advised Mr Ryan: “…that the final report did not cover all material and working papers”?
Why didn’t Mr Pinnock tell the Senate that he knew that, in the technical resource unit’s draft report regarding Alan Smith’s case, the unit had actually asked for ‘extra weeks’ to complete their work but this request was later mischievously deleted from the draft and the draft was then presented as a final report, in the same way that the FHCA financial report was presented as a final report?
It is especially deplorable that the confidentiality agreement the COT cases signed, in their arbitration agreements, is being used to protect those parties who committed these injustices, even though much of this travesty took place outside of the arbitrations, as this Prologue page so clearly shows.
Please click onto Burying The Evidence and learn that a number of government bureaucrats were misled and deceived in regards to who drafted the COT Four Arbitration Agreement.
The Australian government, including the communications regulator AUSTEL, and the COT cases themselves were all assured the arbitration process would be conducted under the ambit of the Arbitration Act 1984. They were also assured the arbitration rules would be drafted totally independently of Telstra, in the same fashion as in the UK when British Telecom agreed to arbitration. In that case, the Chartered Institute of Arbitrators UK drafted the arbitration agreement. The evidence we supply on absentjustice.com shows Telstra’s lawyers covertly drafted the arbitration agreement and, even though Dr Gordon Hughes condemned that agreement as not credible, he still used when he brought down his findings on my claims.
One legal firm got it right
After the first four COT cases signed their individual arbitration agreements in April 1994, another COT case received a letter, dated 2 September 1994, from one of Australia’s leading legal firms, Slater and Gordon, advising:
“We consider that the Arbitration procedure is inadequate because it limits Claimant’s rights, the proceedings are conducted in secret, it limits the liability of Telecom, requires Claimants to bear their own preparation costs regardless of the outcome of the hearing and also, by limiting the way evidence is put to the Arbitrator, restricts the extent of claims.” AFP Evidence File No 12
The advice, from Slater & Gordon, was spot on and raises the question of how this legal firm could see the many pitfalls in the COT arbitration agreement, while the arbitrator and the Australian government, who endorsed the arbitrations, could see none of these deficiencies.
Major Fraud Group – Victoria Police
The Major Fraud Group Victoria Police apparently provided these two Hansards reports inadvertently to me – or perhaps the reports were provided in good faith? I do not believe the Victoria Police ever imagined I would be threatened in the manner I was, by the Senate chair, in regards to exposing the truth concerning how badly the remaining 16 COT cases were discriminated against by their own government. In my opinion, the Victorian Police Officer who handed me this A4 size parcel believed he was giving me a lifeline for the remaining 16 Australian citizens. My main concern was, if I exposed these two Senate Hansards and was duly charged by the Senate for contempt which carries a maximum two-year jail term would I have survived that term?
I am doing the next best thing which is writing the truth, not how I see it, but how the evidence I have compiled shows it to be.
Almost two decades after this cover-up had been executed, with the government spin doctors successfully branding my claims as frivolous and me as a vexatious litigant, the government stopped financing the roll-out of the National Broadband Network (NBN), which still utilises part of the existing, seriously degraded copper network. In fact, the “… state of the copper network is considerably worse than expected, leading to extensive work beyond the node,” say leaked documents.
This has led to a huge budget blowout in the project, with the total bill to fix faulty copper lines estimated at $641m. “[N]ow we find out the cost of upgrading the copper has blown out by almost 900 per cent”. (http://www.smh.com.au/technology/technology-news/nbn-faces-another-potential-cost-blowout-leaked-document-shows)
Sadly, many Australians living in rural Australia can only access a second-rate NBN. This didn’t have to be the case: if the Australian Government had ensured the arbitration process they endorsed to investigate the COT cases’ claims of ongoing telephone problems had been conducted transparently then they could have used our evidence in order to start fixing the problems we uncovered in 1993/94.
My claims of ongoing telephone and faxing problems should have been fully and transparently investigated in 1994-5, under the government-endorsed arbitration process, by DMR Group Inc (Canada), brought to Australia to assess the COT Cases evidence, and the Australian company Lane Telecommunications commissioned to assist DMR. A proper investigation of the ongoing phone-line issues would have found the corroded copper wire network then: there would not be the NBN problems Australian consumers have been experiencing since the NBN roll-out (See https://theconversation.com/the-accc-investigation-into-the-nbn-will-be-useful-but-its-too-little-too-late-87095.
Institute of Arbitrators Mediators Australia (IAMA)
Please note all the referred to documents Burying The Evidence File 13-A to 13-I etc have been provided to various members of the Coalition Government including the Prime Minister’s Office.
The Hon Michael D Kirby AC, CMG
The Institute of Arbitrators & Mediators Australia (IAMA) replied to me after I had provided the office (on 2 July 2009) with fresh evidence confirming the arbitrator did not conduct my arbitration according to the agreed ambit of the Commercial Arbitration Act 1984. I also provided evidence showing the previous Arbitration Project Manager to my arbitration, appeared to also be the current treasurer of the Melbourne Chapter of the IAMA. I alerted the IAMA of this because if it was the same person then the IAMA should be aware of the fact that this person knowingly misled and deceived a proposed investigation into a number of my valid claims raised by me with the Telecommunications Industry Ombudsman. In his letter to me, the then president of the IAMA, The Hon Michael D Kirby AC, CMG advised:
“In accordance with established procedure, I have referred the complaint to the Ethics and Professional Affairs Committee of the Institute.
“In due course, you will be informed following this reference.” (See Burying The Evidence File 13-A)
Within two days of receiving this letter, I received a telephone call from the CEO of the IAMA who explained that the IAMA ethics and professional affairs committee would investigate these fresh allegations and would notify me of their findings. I advised the CEO that in 2002, the IAMA began investigating similar complaints concerning the same arbitrator, but returned my documents without bringing down a finding. The CEO confirmed this would not be the case now. I deduced, from the CEO’s tone, that he had read the damning evidence against the arbitrator that had prompted the president of the IAMA to send the above letter of 9 July 2009.
I personally provided 21 claim documents to the assistant of the IAMA CEO and stated in my letter:
“My letter to you on 16th July advised that the following documents would be hand-delivered to you. These reports are now attached for your information.” (Burying The Evidence File 13-B to 13-C)
30 July 2009: According to this letter, from Graham Schorer (COT spokesperson) to Paul Crowley, attached to a statutory declaration and a copy of a letter dated 4 August 1998 from Graham to me, Graham had a phone conversation with the arbitrator early in 1994 regarding lost COT faxes. During that conversation, the arbitrator explained, in some detail that
“Hunt & Hunt [The company’s] Australian Head Office of was located in Sydney and [the company] is a member of an international association of law firms. Due to overseas time zone differences, at close of business, [the company’s] Melbourne’s incoming facsimiles are night switched to automatically divert to Hunt & Hunt Sydney office where someone is always on duty. There are occasions on the opening of the Melbourne office, the person responsible for cancelling the night switching of incoming faxes from the Melbourne office to the Sydney Office, has failed to cancel the automatic diversion of incoming facsimiles.”Burying The Evidence File 13-H.
On 29 November 2009, I wrote to the CEO of the IAMA regarding fresh evidence received from the office of the lawyer who represented COT spokesperson Graham Schorer in his earlier Federal court action against Telstra between 1990 and 1992. This now-deceased lawyer replaced Graham’s initial lawyer, who was appointed as the arbitrator for the first four COT arbitrations, including both Mr Schorer’s and my arbitration. The arbitrator, therefore, assessed the same documents and complaints he had previously been privy to when he was acting as Mr Schorer’s legal counsel between 1990 and 1992. This constitutes a clear case of conflict of interest. This is the same arbitrator the IAMA investigated in 2009.
The crux of the matter, discussed in my letter to the IAMA ethics and professional affairs committee relates to the events of 12 May 1995, after the arbitrator wrote to the TIO warning him that the arbitration agreement he used throughout my arbitration was not a credible agreement and should, therefore, be revised for the remaining three claimants.
This vital letter from the arbitrator was yet another document the TIO and the arbitrator concealed from me during my appeal period. My letter explained that two of the other three COTs were allowed an extra 13 months longer to prepare their claims than I was allowed. The arbitrator who, don’t forget, had previously been Mr Schorer’s business and legal advisor for many years, allowed Mr Schorer a full 36 months longer to prove his case against Telstra than I was allowed.
It is clear from the five emails dated between 20 and 23 October 2009, from the IAMA Ethics and Professional Affairs Committee that they were certainly investigating my claims against Dr. Hughes (see Burying The Evidence File 13-E) It is also clear from the next email received from the IAMA dated 23 November 2009 (see Burying The Evidence File 13-D) that the IAMA Ethics and Professional Affairs Committee were still supplying claim material to their investigators.
After not hearing from the IAMA between 23 November 2009 to 17 February 2011, I wrote to the Hon Michael D Kirby AC CMG asking him to investigate why I had no proper advice as to how the IAMA was progressing with their investigations into my matters. It had cost close to $16,000.00 in secretarial and administerial fees to submit my claim to the IAMA. On the 21 February 2011 I received a letter from The Hon Mr Kirby stating:
“Thank you for your letter of 17 February 2011, just received.
When I wrote to you in July 2009, I served as President of the Institute of Arbitrators & Mediators Australia. In June 2010, I stepped down from this position. Mr Warren Fisher was elected in my place.
A possible explanation for your not hearing from Mr Paul Crowley is that, not long after my retirement as President, he resigned and Chief Officer of IAMA.
I will send your letter and the attachments to Mr Fischer and request that he respond to your enquiry“ (see Burying The Evidence File 13-F)
On the 21 March 2011, I receive a letter from Mr. Warrwn Fischer President of the IAMA noting:
“I confirm receipt of your correspondence dated 22 February 2011 (forwarded to me by the Hon Michael Kirby AC CMG under cover dated 28 February 2011; 6 March 2011; and 9 March 2011.
I advise that I have passed all of that correspondence to our Ethics and Professional Affairs Committee for reply to you.” (Burying The Evidence File 13-G)
All Australian citizens [in the public interest] have a duty of care to expose unlawful conduct by government public servants, especially if that conduct may be detrimental to the welfare and natural justice of other Australians. I have spent many years trying to expose the fiasco I found myself caught up in, because I believe the law should be observed at all costs. Without a functioning democratic society, we no longer have the freedoms we currently take for granted. These freedoms are what so many young Australians have gone to war to preserve. The laws should preserve and protect all Australians: not just those politicians and corporate lawyers who choose to manipulate the system for their own benefit – and often to the detriment of other Australians – as this story demonstrates.
I again remind the reader the IAMA still refuses to bring down a finding on the material they asked me to provide them between July and October 2009. The IAMA is also refusing to supply back to me copies of that material provided, which cost in excess of $16,000 to produce.
Many people from around the world are at least aware of the eighth Christian commandment (sometimes referred to as the ninth commandment in other religions) but perhaps it is not so generally known that the Ten Commandments are widely accepted as moral imperatives by scholars, also from around the world, and from different religions, including Jewish, Catholic, and Post-Reformation scholars (see below). So how is it that, even though the IAMA Ethics and Professional Affairs Committee initially agreed to investigate my COT arbitration claims, but then turned their backs on me? They would have discovered that the arbitration project manager ‘bore false witness against me’, although it is not yet clear whether he did that for his own gain or as part of an overall plan to assist the Telstra Corporation. The question now is: how can this organisation, and the man who was appointed as an independent COT arbitration project manager, both continue to hide that ‘false witness’ or, for that matter, how can they justify hiding any of the other unlawful activities connected to our arbitrations?
When I raised this very issue in my submission to the Institute of Arbitrators and Mediators Australia (IAMA), during the agreed official investigation into my arbitration complaints, I told the then-President of the IAMA, the Hon Michael D Kirby AO, about my concerns that someone with the same name as the COT arbitration project manager was listed as the treasurer of the Victorian chapter of the IAMA in Melbourne. I asked if Mr Kirby knew if they were, in fact, both the same person but never received a response to my question. The arbitration project manager (who appears to have also been the IAMA treasurer during this investigation) has been shown to have ‘borne false witness’ against me in his official letter of 15 November 1995, to the TIO. I received five separate emails from the IAMA Ethics and Professional Affairs Committee between July and October 2009, each one confirming that they were still investigating my arbitration claims and asking me to be sure I provided all the information I had to support my claims against the arbitrator and the arbitration project manager.
I wish to place here on notice, for the purpose of absentjustice.com/Arbitrator Part Two, that the numerous letters I received over a number of years from The Hon Michael Kirby show he is a most compassionate man of great stature. His letters show that, while he would like to have done more to assist me, his hands appeared to be tied with some bureaucratic order of some kind.
9 May 2011: I received rather a strange letter from Warren Fischer (IAMA) noting:
“I have to hand your correspondence dated 2 May 2011. I observe that in that correspondence you state that you “have some concern that the IAMA Ethics and Professional Affairs Committee has not yet responded to my claims against [the arbitrator], which was lodged in July 2009”.
“I advise that my receipt of your other recent correspondence, dated 17 April 2011 caused me to enquire of the IAMA CEO as to the status of this matter as I had understood that the IAMA Ethics and Professional Affairs Committee had concluded its deliberations and notified you accordingly.”
Mr Fischer’s letter is strange because, in the last week of February 2011, the Hon Michael D Kirby AC CMG advised him that I was waiting for a response to the IAMA investigation into my previous arbitrator’s conduct.
So why, six weeks later, did Mr. Fischer to write that my letter of 17 April 2011 caused him to inquire of the IAMA CEO as to the status of this matter because he understood that the IAMA Ethics and Professional Affairs Committee had concluded its deliberations?
Between May 2011 and November 2013, I tried all reasonable avenues to have the IAMA explain why they would not bring down a finding of their investigations into my valid claims.
On 11 November 2013, the IAMA CEO notified me in writing that I should:
“… not write to the IAMA, our President, or any person connected with IAMA again on this matter. Any future letters received will be returned to you.” (See Burying The Evidence File 13-I)
Transcripts from my two AAT hearings (respondents ACMA) on 3 October 2008 (No V2008/1836) and 26 May 2011 (No 2010/4634) show I maintained both my Freedom of Information applications to ACMA should be provided free of charge, in the public interest, including all of the requested information both Telstra and AUSTEL withheld during my government-endorsed arbitration process. Senior AAT member Mr G D Friedman considered both these AAT hearings and it is now apparent that Mr Friedman was unaware that the government solicitors (AGS) and ACMA based their defence of my claims on the inaccurate DCITA COT archival documents, including the sanitised public AUSTEL COT report released in April 1994. Neither document includes the true (and very adverse) findings that AUSTEL had originally reached in relation to Telstra’s dealings with me (see AUSTEL’s Adverse Findings).
It is also important to note again, that during my first AAT hearing (No V2008/1836) Mr Friedman stated:
“Let me just say, I don’t consider you, personally, to be frivolous or vexatious – far from it.
“I suppose all that remains for me to say, Mr Smith, is that you obviously are very tenacious and persistent in pursuing the – not this matter before me, but the whole – the whole question of what you see as a grave injustice, and I can only applaud people who have persistence and the determination to see things through when they believe it’s important enough.”
During my second AAT hearing No 2010/4634 (see A Civil Action) Mr Friedman stated:
“Mr Smith still believes that there are many unanswered questions by the regulatory authorities or by Telstra that he wishes to pursue and he believes these documents will show that his unhappiness with the way he has been treated personally also will flow to other areas such as it will expose the practices by Telstra and regulatory bodies which affects not only him but other people throughout Australia.
“Mr Smith said today that he had concerns about the equipment used in cabling done at Cape Bridgewater back in the 1990s. He said that it should – the equipment or some of the equipment should have a life of up to 40 years but, in fact, because of the terrain and the wet surfaces and other things down there the wrong equipment was used.”
During this second AAT hearing in May 2011, I again raised the telephone problems that had affected my business from before my arbitration to 1995, stressing that the arbitrator had failed to investigate or address most of those problems, and therefore allowed them to continue for a further 11 years after the end of the arbitration. Since that second AAT hearing, and as a result of Australia’s National Broadband Network (NBN) rollout, which began in mid-2011 and is still continuing today, numerous faults, just like those that I raised during my arbitration and both AAT hearings, have been found; this can be confirmed by a simple internet search for “Australia NBN”.
Therefore, I was right to demand that those in charge of my government-endorsed arbitration explain why they did not force Telstra to rectify the faults in my local Cape Bridgewater RCM exchange as part of my arbitration. There are numerous exhibits on this website, absentjustice.com, confirming the COTs and various ministers were told, in early-1994, that telephone exchanges servicing the COT claimants would be upgraded if arbitration SVTs revealed any problems still remaining.
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 (the 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 to me that their investigation conducted after my arbitration on 14 January 1998 showed it was apparent the phone problems would indeed continue.
If the TIO did carry out an in-house TIO investigation into my claims that some COT faxes were being illegally intercepted, but came to the conclusion that those faxes did not arrive at the arbitrator’s office because they had been lost as a direct result of faults in the network – the very network under investigation by the arbitrator – it would be deplorable if the TIO then decided not to respond to my interception claims. Deplorable because, either way, whether the missing documents were intercepted and not forwarded on or were lost because of faults in the network, it still comes down to the fact that certain claim documents of relevance to the COT claims were NOT assessed by the arbitration process as was intended by the Federal Labor Government when they endorsed our arbitrations.
As we have shown in A Civil Action, during this second AAT hearing in May 2011, I raised the telephone problems that had affected my business, both from before my arbitration began in 1994 and during the arbitration itself, stressing that the Arbitrator had failed to investigate or address any of the ongoing telephone problems, and explaining that his failure therefore allowed all the problems to continue for a further eleven years after the end of the arbitration. Since that second AAT hearing, and as a result of Australia’s National Broadband Network (NBN) rollout, which began in mid-2011 and is still continuing today, numerous faults, just like those that I raised during my 1994 arbitration, are still apparent. So here we are, in 2018, and people around the country are reporting faults just like those that the COTs experienced – and raised with Telstra – back in 1994, because now we not only have a faulty telecommunications system left over from last century, we also have a second-rate NBN system. You can read about some of those NBN problems at http://www.abc.net.au/news/2017-10-18/nbn-complaints-to-tio-surge-in-last-financial-year/9058336.
As a citizen of Australia, I was therefore quite right to demand that those in charge of my government-endorsed arbitration should explain why Telstra was not forced to rectify the faults in the local Cape Bridgewater RCM exchange before the arbitrator handed down his findings which, of course, were only based on anecdotal, historic, past telephone problems and not on any of those that were STILL affecting the viability of my business.
The following link also shows that the COT Cases were right way back in 1994 in regards to the copper-wire network,