Last edited March 2019
The collusion continues.
There are discrepancies between the arbitrator’s and my version of the technical consultants’ report titled Resource Unit Technical Evaluation Report. Mr Alan Smith. CBHC. 30 April 1995. The second paragraph on page one consists of only one short sentence “It is complete and final as it is,” (see Arbitrator File No/27). However, the second paragraph on the equivalent page (page two) of the arbitrator’s report, also dated 30 April 1993 says:
“There is, however, an addendum which we may find it necessary to add during the next few weeks on billing, i.e. possible discrepancies in Smith’s Telecom bills.” (See Aritrator File No/28)
There is more information in the arbitrator’s version than there is in mine. The reference to my ongoing billing problems states extra weeks are required to complete the investigation. The arbitrator did NOT provide the extra weeks.
My page two of this report (see Open Letter File No/47-A to 47-D) shows no mention of my billing claim document in my version. However, page three in the arbitrator’s version notes:
“One issue in the Cape Bridgewater case remains open, and we shall attempt to resolve it in the next few weeks, namely Mr Smith’s complaints about billing problems.
“Otherwise, the Technician Report on Cape Bridgewater is complete.” (See Open Letter File No/47-A to 47-D)
How can two identical technical reports with the same 23 technical assessments, both dated 30 April 1995 and apparently both prepared by the same consultants, have one version noting that the “… case remains open, and we shall attempt to resolve it in the next few weeks”, while the other has no mention of it still being open and needing weeks to complete?
Both documents state: “A comprehensive log of Mr Smith’s complaints does not appear to exist.” It did exist, as we have shown. Had this comprehensive log of fault complaints been provided to the technical consultants to assess, they would have had to overrule the arbitrator’s decision not to allow them the extra weeks they had requested, in order to investigate my ongoing billing faults.
“A comprehensive log of Mr Smith’s complaints does not appear to exist.”
Garry Ellicott and Barry O’Sullivan had definitely submitted a very comprehensive list of fault complaints as part of my submission (see Arbitrator File No/31 & 32). In the second week of June 1994, Garry Ellicott and Barry O’Sullivan freighted down eight bound, spiral reports from Queensland. One of those reports was a full chronology of events to assist with reading the comprehensive log of fault complaints. When I demanded an arbitration meeting to discuss these missing reports, my request was denied (see Arbitrator File No/48).
To be clear, a dated chronology of my 008/1800 billing issues was in existence before, during and after my arbitration. A comprehensive log of faults was submitted to the Federal government prior to my arbitration as well as during, but this record disappeared, leaving only 11% of my claim documents to be assessed. Neither Telstra nor AUSTEL could not allow my 008/1800 billing issues to be scrutinised and exposed. The implications of a systemic charging issue, which affected as many as 120,000 Australian households and businesses (see in Chapter Thirteen below.
My award was brought down on 11 May 1995. The very next day, the arbitrator wrote to the TIO and discussed one of the deficiencies in the agreement; the insufficient time frame allowed in the arbitration agreement for the “preparation of technical reports”. I had raised this very same issue with the arbitrator the previous week, when I requested he give me more time to investigate the disappearance of my comprehensive log of complaints.
Eight Damning Letters Follow
The first of these eight damning letters was from John Rundell, the Arbitration Project Manager, on 18 April 1995, advised the TIO, the arbitrator and the TIO counsel that:
“It is unfortunate that there have been forces at work collectively beyond our reasonable control that have delayed us in undertaking our work.” (see Prologue Evidence File No 22-A)
The four COT claimants Ann Garms, Maureen Gillan, Graham Schorer and (me) were never told about any of these so-called “forces at work” and nor were we ever warned that, under the nose of the TIO, the TIO’s legal advisor and the Arbitrator, these un-named “forces at work” were allowed to infiltrate and manipulate the arbitration process wherever and whenever they desired, but always with the aim of helping Telstra to defeat the COT claimants.
When these three legal experts, (i.e. Dr Gordon Hughes, Warwick Smith and Peter Bartlett) allowed this very important letter of 18 April 1995 to be hidden from the four COT cases, those so-called ‘legal experts’ directly assisted those “forces at work” to carry out their intended disruption of all four of the COT cases’ arbitrations. If John Rundell had sent a copy his letter to the four COT cases, as he should have, all four of us could have approached the Federal Government at once because, with Mr Rundell’s letter as evidence, we would certainly have had a very reasonable chance of being granted the rights to have all four processes reviewed and amended, at the very least. And don’t forget, it was the Federal Government who had originally endorsed those first four Fast Track Arbitration Procedures.
On 26 September 1997, John Pinnock, the second TIO to be appointed to oversee the COT arbitrations as they dragged on, alerted a Senate Estimates Committee (see Prologue Evidence File No 22-D) that: “… Firstly, and perhaps most significantly, the arbitrator had no control over that process because it was a process conducted entirely outside of the ambit of the arbitration procedures”. This information definitely strengthens our claim that, if the COT cases had been provided with copies of John Rundell’s 18 April 1995 letter, and if we had then also been warned that our arbitrations were being conducted entirely outside of the ambit of the arbitration procedures, and if we had also been told that that meant that Dr Hughes had no control over the process, we would have had enough information to convince the endorser of our arbitrations (i.e. the Federal Government) to have the entire process immediately abandoned and a new, more reliable process designed.
We also need to remember that the arbitration process was administered under the auspices of the Supreme Court of Victoria and that leads us to wonder now, how appalled the members of the Supreme Court might have been if only they had known about the appalling behaviour of Dr Hughes and Warwick Smith, both throughout our arbitrations but particularly when:
- Dr Hughes and Mr Smith decided to allow Telstra to freely manipulate the process, with no oversight in place to stop them; and
- These secretive “forces at work” and how they
These, of course, were those same un-named “forces at work” who had not only threatened me because I assisted the Australian Federal Police with their investigations into Telstra (see Prologue Evidence File No 22-A), but had also carried out those threats.
In the end however, even though the Senate was informed of this manipulation of a legal process, still nothing was ever done to support the COT cases in any way. We can’t help but wonder, if this information had been made available to the Federal Government (who endorsed the arbitration process in the first place) would it have been enough to convince them to order the arbitrations to be abandoned and a better, more secure and fairer process put in place.
The Second Damning Letter
Arbitrator Part Two / Chapter Nine and Ten confirm I raised my arbitration billing issues in my 15 June 1994 Letter of Claim. Open letter File Nos/46-A to 46-J exhibits also show I raised the 008 billing issues on 27 May 1994.
“As no further progress was likely to be made on these matters, the formal version of the Technical Evaluation Report did not leave the billing issues open.”
In this 15 November 1995 letter, Mr Rundell mentions nothing about my claims of ongoing 008/1800 false recorded message faults telling the callers to my business I am no longer in business. How could a truly independent arbitration resource unit not investigate the worse possible fault being experienced by my business?
Yet the formal DMR and Lane Report, at point 2.23, notes:
“Continued reports of 008 faults up to the present. As the level of disruption to overall CBHC [Cape Bridgewater Holiday Camp] service is not clear, and fault causes have not been diagnosed, a reasonable expectation is that these faults would remain ‘open’.”
This report proves beyond all doubt these ongoing unaddressed billing faults were left ‘open’. At no time did DMR & Lane run a series of tests calls so that they could hear the RVA recorded message when dialing my 1800 number “The number you are calling is not connected.”
Open Letter File No/47-D is page 40 from the final version of the report I received during my arbitration – it includes 14 more sets of claim documents than what is on the list contained in Open Letter File No/47-C.
The issue of these unaddressed 008/1800 billing problems was a central and major factor of my arbitration claim and so these problems are raised throughout absentjustice.com. This 008/1800 free-call service fault, which so seriously affected the viability of my business, was actually threefold. Firstly, Telstra routed the 008/1800 service through my 005 267267 main, incoming service line, despite Telstra knowing that line was prone to serious problems going back for many years. In fact, the AUSTEL draft findings, which resulted from their investigations into my complaints (see Open Letter File No/4 File No/5 File No/6 File No/7), show AUSTEL condemned the entire phone system that Telstra supplied to my premises. Secondly, both my 055 267267 service and the 008/1800 free-call service were affected by incoming calls failing to connect: telling the caller, “The number you are calling is not connected.”
Both AUSTEL’s records, and Telstra’s, show that this RVA message suggests the business is no longer operating, a terrible situation for any telephone-dependent business-owner to have to endure. I experienced these multiple 008/1800 RVA telephone faults throughout my arbitration, and for years after, because as shown above, the arbitrator handed down his findings prematurely, despite his own technical consultants warning him that because of the: “… fault causes have not been diagnosed, a reasonable expectation is that these faults would remain “open”. For callers to still be advised that my business was no longer operating, when it definitely was operating, and for that message to haunt my telephone line for years after my arbitration, was a deplorable situation for anyone to have been left in and obviously raises the question of what the arbitrations were meant to do, if it was not to investigate all the phone problems that brought the claimants into the process in the first place?
“Discussions were held with Telecom (Mr Peter Gamble) in Mr Smith’s presence during the visit to Cape Bridgewater in April 1995 which provided the following information.
“A second matter involved 008 calls. Again, this matter was current at a late stage (April 1995) of the Arbitration process”.
Mr Rundell’s statements, in the four bullet points on page two of his letter (see File No/45-A), alleges that during this site visit Peter Gamble and I discussed issues concerning the 008/1800 faults and that I and Lanes (the arbitration technical consultants) agreed with Peter Gambles many explanation concerning the 008/1800 issues I had raised in my claim. These statements to Mr Pinnock are a total fabrication and they suggest Mr Gamble’s assertions, that there was nothing wrong with Telstra’s 008 service, were correct and my arbitration claims, concerning a deficiency in the 008 service, were a figment of my imagination.
If Mr Rundell had told the truth, in his 15 November 1995 letter to Mr Pinnock, he would have admitted my claims were true and acknowledged that I had first raised the ongoing telephone billing problems as a major issue, affecting the viability of my business, in my 27 January 1994 Fast Track Settlement Proposal (FTSP) interim letter of claim. This claim was jointly addressed to Warwick Smith (the first TIO), Dr Hughes (then the assessor) Peter Bartlett (the TIO’s counsel) and Mr Rundell. A 37-page chronology of evidential material, Arbitration Reference Number-P-1289, attached to my submission, was proof enough that my business was experiencing a major telecommunications problem that needed a full investigation. Warwick Smith, however, advised me to sign for the arbitration process because, he assured me, the ongoing billing issues would be addressed as part of that process.
My arbitration letter of claim, dated 7 June 1994 and provided to the arbitrator on 15 June 1994, also referred to my 27 January 1994 settlement letter of claim and Arbitration Reference Number-P-1289. Furthermore, the final versions of the DMR and Lane (arbitration technical consultants) 30 April 1995 reports twice directed the arbitrator’s attention to the fact that my complaints were still ongoing and still being reported, right up to the date of their reports. They also advised Dr Hughes, in writing on 30 April 1995, that they had not investigated this part of my claim and required extra weeks to do so.
As AUSTEL (now ACMA) and Telstra each wrote to Dr Hughes on three separate occasions, in December 1994. Each of those letters discuss these major ongoing billing issues. AUSTEL’s letter, dated 8 December 1994, to Dr Hughes Open letter File No/46-I even states:
“A major consideration in AUSTEL’s pursuit of the issues raised by Mr Smith was the likelihood that these problems, if proved to exist, would almost certainly affect a number of other Telecom customers.”
It has since been confirmed from Call For Justice Evidence File 12 that AUSTEL first raised these 008/1800 complaints, on my behalf, with Telstra in June 1993 and wrote to Telstra again concerning my claims, on 6 January and 27 January 1994, during my FTSP. Between the 4 October 1994 and 16 December 1994 (see Open letter File No/46-F to 46-J) AUSTEL and Telstra was writing about these 008/1800 arbitration billing claim documents. In March 1994, Telstra’s CEO, Frank Blount and I discussed the same ongoing billing problems and he advised he would do everything he could to rectify these problems as well as my complaints of network congestion between Warrnambool and Portland. In mid-1999, after retiring as Telstra’s CEO, Frank Blount published Managing in Australia, which acknowledgement this 1800 billing fault as a major Telstra network software problem Home Page Part Two Evidence File No/10 : my unaddressed arbitration claims are still valid.
All three of my individual service lines would lock up at different times after a terminated call. This lock-up problem not only stopped calls and faxes leaving or coming into my business, but, on the 008/1800 line, I was charged for the time the line was open even though the call had terminated as the lock-up fault held the line open. When John Rundell, Arbitration Project Manager advised the TIO (see above) that my billing problems were not investigated, he was acknowledging that the lock-up problems on my service lines were also not investigated. In simple terms, by not addressing my billing faults the arbitration process was also not addressing any of my complaints of ONGOING PROBLEMS.
If Mr Rundell had told the truth to Mr Pinnock and explained the real reasons why NONE of those ongoing billing problems were investigated or addressed during my arbitration, then my claims would have been investigated back then, in November 1995. Mr Pinnock wrote to me twice in August 1995, as the administrator of my arbitration, stating that he was obliged to investigate my complaints of such skullduggery. The untruths you concocted in that 15 November 1995 letter immediately brought that investigation to a complete halt.
Did the arbitration resource unit understand that when they failed to investigate the ongoing billing problems, they did not address the cause of the billing issues? The billing issues included calls registering into the holiday camp lines through Telstra’s Call Analyses Charges System (CCAS) that I was charged for, although the connection actually failed, and a fault where successful calls were terminated but the line remained engaged, thus prohibiting incoming or outgoing calls. The failure of the engaged line to correct itself, leaving the line effectively frozen, was significant.
This fault was only obvious when dialing out from the business office. From 1993 onwards, Telstra often advised us to disconnect the phone at the wall socket and then plug it back in to free up the line. This indicates the fault was in either the phone or the actual phone line. In order to dial out of the office when this particular fault was present (it was intermittent), we had to disconnect the line at the wall after every call.
When it was revealed the arbitrator refused his technical consultants the extra weeks they required to assess all of my claims – and thus only 11 per cent of my claim documents were investigated – the government communications regulator demanded Telstra address these arbitration issues (see Arbitrator Part Two and Open letter File No/46-A to 46-l). Unbeknown to me, on 16 October 1995, five months after my arbitration was concluded, and hence outside the arena of the arbitration process, the government regulator covertly allowed Telstra to address the worst of the remaining 89 per cent of unaddressed claims.
When the government regulator allowed Telstra (the defendants) to address civil arbitration issues outside of my arbitration, which prohibited me from legally challenging Telstra (as part of the original arbitration process), the government breached their statutory duty of care towards me as an Australian citizen.
On our Draft-absentjustice.com page, we show Telstra’s previous CEO Frank Blount acknowledged, publicly in a manuscript published jointly with Bob Joss and titled Managing in Australia, that Telstra suffered from systemic faults. However, we did not acknowledge that when the government communications regulator AUSTEL (now ACMA) allowed Telstra to address some of my 1800 billing faults, outside of the arbitration arena on 16 October 1995 (see Arbitration Part Two, Chapters Thirteen and Fourteen), they denied me natural justice, because:
- By allowing only Telstra to comment on my 008/1800 arbitration billing faults, and not me (the claimant), AUSTEL acted as the arbitrator: AUSTEL accepted Telstra’s version of events concerning my ongoing 1800 billing faults. This one-sided process allowed only the defendant Telstra to address my claims, even though the arbitration agreement, facilitated by AUSTEL and endorsed by the relevant Communications Minister Michael Lee, stated I had a right of reply to Telstra’s arbitration defence of my claims.
- Had Telstra addressed these 1800 billing issues in its defence of my claims, during my arbitration from 21 April 1994 to 11 May 1995, Dr Hughes (arbitrator) would have been able to make a finding either for or against my claims. This would have allowed me my legal right to appeal this part of my arbitration claim, if I thought Dr Hughes had erred on a point of law concerning these matters.
- Had Telstra addressed these 1800 billing issues in its defence of my claims and Dr Hughes had found against me, I could have legally challenged Dr Hughes’ award (findings), in 1999, when Frank Blount admitted publicly that Telstra did indeed have a billing problem (during the period I raised these matters). From May 1995 (the end of my arbitration) to Mr Blount’s publication in 1999 is only 4 years and within the Statute of Limitation six-year period for me to submit an appeal. Most people would conclude I would have won my appeal, had Dr Hughes addressed these issues either for or against me, because how could an appeal judge argue against the findings of Telstra’s previous CEO Frank Blount (i.e., his public admission that Telstra indeed had 1800 billing problems.
I again ask, why did John Rundell become involved in this 1800 deception? The statements concerning the 008/1800 problems raised by Mr Rundell in his letter of 15 November 1995 (see above), do not coincide with the statements made by Frank Blount, in his publication in Managing in Australia.
This download link Prologue Evidence File No/6 008/1800 billing issues … – Absent Justice confirms Telstra’s previous CEO Frank Blount’s acknowledgment, in Managing in Australia (1999), that Telstra had a major 1800-free-call billing software problem: the same problem Dr Gordon Hughes, the arbitrator of my case, disallowed his technical consultants the extra weeks they advised was needed to investigate these ongoing problems. Had Dr Hughes allowed his arbitration unit the extra weeks their draft findings stated they needed to investigate my 008/1800 claims (see also Arbitrator Part Two, Chapters Thirteen and Fourteen), they would have also uncovered that the 1800 service to my business was trunked through the 055 267267 service line. When Dr Hughes stopped DMR and Lane, his technical consultants, from investigating my 008/1800 arbitration claims, did he realise he was also stopping DMR and Lane from investigating my 055 267267 service? This line was still fault-ridden – and remained that way for a further nine years after my arbitration was supposed to have fixed these faults. (See Burying The Evidence File 10-A to 10-C).
Although Telstra successfully suppressed the evidence of these widespread faults in its service during the COT arbitrations, surely, once Mr Blount admitted these faults, publicly in 1999, Telstra’s board of management should have immediately reopened that part of my arbitration claim and awarded me damages. Telstra has, to date, ignored Frank Blount’s admissions.
Combine this letter of 15 November 1995 with the second and third named letters discussed above and below and it becomes obvious that John Rundell, should have been questioned more than twenty years ago concerning his questionable conduct both during and after my arbitration.
On the 6 December 1995, Derek Ryan, my arbitration accountant wrote to the Shadow Minister for Communications, Senator Richard Alston, stating:
“Over the last 2 years I have acted as an independent accountant for Alan Smith and I prepared the independent assessment of his losses and damages which formed part of his submission to the arbitrator, Dr G Hughes.
“In response to accounting documents and evidence submitted to the arbitrator, he appointed Ferrier Hodgson Corporate Advisory (Vic) Pty Ltd.(‘FHCA’) to support him in assessing the losses and damages.
“The FHCA report was inaccurate and incomplete. I have since been advised by a staff member of FHCA that a large amount of information was excluded from their final report at the request of the arbitrator. This has left the report in an incomplete state and it is impossible for anyone to re-calculate or understand how the FHCA loss figures were determined. This effectively meant that it was impossible to challenge the assumptions, calculations and the time periods used in the FHCA report.” (See Open letter File No/45-E)
On the 22 December 1995, Derek Ryan wrote to TIO John Pinnock, noting:
“The Ferrier Hodgson Corporate Advisory (Vic) Pty Ltd (‘FHCA’) report was dated 3 May 1995 and I received a copy of the report on 5 May. After discussions with Alan Smith it was decided that I should reply to the report as soon as possible.
“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. …
“In 17 May I telephoned John Rundell and he stated that he was unable to discuss anything with me until the appeal period had expired. … 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.” (See Open letter File No/45-E)
During the COT arbitrations, when the TIO himself, and other TIO officials, threatened the first four COT claimants that, if we did not formally agree to exonerate the arbitration financial advisors, Ferrier Hodgson Corporate Advisory (FHCA), from any liability in relation to their involvement in the arbitration process, then there would be no arbitration and we would therefore be left with only one alternative, the enormous costs involved in taking Telstra to court for not providing us with a decent telephone service, even though Telstra (as a government organization) had a legal responsibility to provide us all with a service comparable to our competitors.
As small businesses, none of us could afford to even think about entering into what was sure to be a drawn out and expensive legal process with a government-owned corporation with a bottomless public purse available to fund their defence and so we were forced to agree to exonerate FHCA from all liability. This meant, of course, that we could never sue FHCA for negligence in connection to our arbitrations. Then, when those arbitrations began, it was like being caught at the wrong end of a shooting range for the COTs because FHCA were also, secretly, appointed to decide which discovery documents the arbitrator would see and which would be concealed from assessment altogether.
So, as we follow what is now being uncovered at the Banking Royal Commission, with a number of financial organisations being exposed for corrupt and unlawful conduct, we COTs can’t help but link that directly to our experiences when we attempted to expose FHCA’s so-similar conduct during our arbitrations, when their assessment of our financial situations so-clearly minimized Telstra’s liability, but no-one in government would investigate how this deplorable situation was allowed to continue.
Mr Rundell has never refuted Derek Ryan’s statement in a letter he wrote to John Pinnock (the TIO), in relation to my arbitration financial losses, which noted that: “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”, even though that statement: “… until the appeal period had expired”, reveals the true calibre of Mr Rundell’s attitude, i.e. he recognised the advantages for Telstra if the COTs were forced to wait for the appeal period to elapse before they even began to expose the truth. It is this sort of gutless behaviour that is currently being revealed, in 2018, courtesy of a Royal Commission Enquiry into Australia’s big banks.
Australian Securities Commission
Please view exhibits Open letter File No/45-A to 45-I. Compare those exhibits with Open letter File No/46-A to 46-L to File No/47-A to 47-D, then compare those exhibits with Chapters One to Three in our Prologue page. Anthony Hodgson, the chair of Ferrier Hodgson Corporate Advisory (the arbitration financial resource unit), wrote to Alan Cameron, chair of the Australian Securities Commission (see Open letter File No/45-I), on 17 March 1998, and advised that I was wrong: ALL of my claim documents were addressed during my arbitration. The exhibits aformention above show this was clearly misleading and deceptive conduct by Mr Hodgson. If he wrote on advice he received within his own corporation, then his own company members and partners within profoundly misled and deceived him.
Had the Australian Securities Commission not been misled and deceived in March 1998, less than three years after my arbitration concluded, and instead made a finding that my claims were justified, as the attached exhibits on absentjustice.com show, then I could have challenged at least one of the sections in the arbitrators award, as 1998 was well within the statute of limitations time-frame allowed.
The Third Damning Letter
This letter dated 13 February 1996, from Mr Rundell to Mr Pinnock (see point 2 above) was written in response to Mr Ryan’s allegation. Mr Rundell states, “I did advise Mr Ryan the final report did not cover all material and working papers.” (See Open letter File No/45-E). But instead of Mr Pinnock providing this letter to me, within the statute of limitations period so I could use it in an appeal against Dr Hughes’ award, Mr Pinnock concealed it until 2002 – outside the statute of limitations.
However, between 18 October 1995 and 4 October 1997, with the assistance of Mr John Wynack, director of investigations on behalf of the Commonwealth Ombudsman, I sought, under FOI, from Telstra a copy of their arbitration file on my matters. Home Page File No/82 confirms Mr Wynack did not believe Telstra’s claim that it destroyed the file. I also tried to access a copy of the same arbitration file held by the TIO office, which, as the administrator of my arbitration – under law – had to retain a copy for at least six years: until 2002. Mr Pinnock’s letter, of 10 January 1997, in response to my request, states:
“I refer to your letter of 31 December 1996 in which you seek to access to [sic] various correspondence held by the TIO concerning the Fast Track Arbitration Procedure. …
“I do not propose to provide you with copies of any documents held by this office.” (See Open Letter File No 57-C)
I was aware Ferrier Hodgson Corporate Advisory and Dr Hughes also collaborated with Telstra in ensuring my singles club (my second business) would not be assessed as a separate business loss and did not take into account the higher revenue loss of my single club dollar, but only valued my losses at the lower tariff I charged for school groups. However, I wanted something more substantial – perhaps the actual working notes, which were removed from the FHCA report under instruction by Dr Hughes (see Open letter File No/45-E), and would have detailed my singles club information that I provided FHCA in February 1995. This single club material was never returned to me after my arbitration was finalised. The losses associated with my singles club patronage (which were never taken into account by the arbitrator) are also discussed in the Front Page Part Two page.
Single Club Losses Ignored
The final FHCA fiancial report referred to by Derek Ryan and John Rundell only provides statistics from the school-camp bookings for valuing my losses. There is no reference, at all, to profits from the adult social club and singles-club bookings, even though they made up 47 per cent of my business and were charged more than four times the school rate. I discovered, when FHCA eventually returned my claim documents, FHCA had a number of my singles club flyers, along with copies of various newspaper adverts regarding the adult weekends and copies of numerous testimonials from prospective adult patrons explaining their frustration at not being able to contact my venue by phone to make bookings. But, the more detailed calculation of the type of revenue earned from these single club weekends were not amongst that returned information.
On page seven of its final, 3 May 1995, financial-evaluation report, which both Telstra and I received, FHCA state:
“An analysis of the clientele of CBHC [Cape Bridgewater Holiday Camp] shows that only 53% were in fact schools.” (See Open Letter File No 57-A to 57-D)
There is an enormous difference between $30.82 for a two-night stay for school groups and $120.00 to $165.00 for a two-night stay for social-club patrons. Knowingly downgrading my losses by a large percentage is verging on fraudulent criminal conduct.
The potential patrons’ testimonials are also referred to in the AUSTEL report, of 3 March 1994:
“As Mr Smith points out, the RVA message had the potential to severely damage his business. An important point in relation to the possible financial impact of the RVA message on the Cape Bridgewater Holiday Camp service is the camp’s dependence on group bookings. In June 1992 the camp tariffs ranged from $1500 to $6000 per week, so the loss of even one booking because of the RVA problem could mean a substantial financial loss.” (See p33, point 85, Open Letter File No/6)
I was also able to demonstrate to AUSTEL, when their representatives visited my venue, that singles club customers would regularly buy souvenirs before they left: purchasing printed Cape Bridgewater t-shirts, sweatshirts, postcards, headscarves and crafted driftwood plant arrangements. Schoolchildren didn’t have that sort of money and typically only bought post cards. FHCA ignored all the income I lost from lost singles-club bookings, i.e., the profit I made on the souvenirs as well as the $120 to $165 tariff per person for these customers.
John Rundell’s statement to John Pinnock, Telecommunication Industry Ombdsman (see Open letter File No/45-E) that “FHCA had excluded a large amount of information from their final report at the request of the arbitrator”, ties in with the excluded single club material and my Echo turism venture losses which I provided, under confidentiality, to FHCA in February 1995, when it visited my business. The submitting of this singles club evidence into arbitration under confidentiality is discussed in Arbitrator Part Two.
The arbitration project manager, who we were forced to exonerate from all liability in connection with our arbitrations, allowed an ex-Telstra employee from Lane Telecommunications to prepare the majority of the technical findings, despite the four claimants being promised someone from DMR Group Inc (Canada) would be the principal consultant. This is damning enough but, in my case, this same exonerated arbitration project manager also advised the TIO the billing issues were not left open, when DMR and Lane did leave them “open” and didn’t investigate the fault cause of those billing problems (see Arbitrator Part Two, Chapters Thirteen and Fourteen and Introduction File No 1-B). The project manager advised, in his 15 November 1995 letter (Introduction File No 1-A), the reason these billing faults were not investigated was because “this matter was current at a late stage (April 1995) of the Arbitration process”.
However, the project manager knew I submitted these billing claim documents on 27 January 1994 (see Open letter File No/46-A) and was aware the government communications regulator demanded advice from the arbitrator, on 8 December 1994 (Open letter File No/46-I), as to whether I raised these billing issues as a claim. Evidence confirms Dr Hughes did not respond to the regulator on this matter. Further confirmation, in Open letter File No/46-J, confirms Telstra also discussed these billing issues with Dr Hughes, on 16 December 1994. Pages 91 to 94 in the transcripts of my oral arbitration hearing of 11 October 1994 (see Open letter File No/45-B) confirm I discussed these same billing claim documents at great length with Dr Hughes. I state, on page 93 and after I used Telstra’s own call analysis data for a 10-second call, “…I was charged for 4 minutes and 15 seconds”. Dr Hughes then states, “I don’t think we need any further examples.” John Rundell attended this five-hour meeting. Had Mr Pinnock been told the truth all those years ago, i.e., that NONE of my billing claim documents were addressed (through NO FAULT of my own), Mr Pinnock could have asked the arbitrator to reopen this part of my claim.
It is also shown in the introduction to our Open Letter Evidence File page that the proposed Echo Tourism venture which was all part of my losses associated with the now proven ongoing phone problems was not assessed at all.
Prologue Evidence File No/16: is an appraisal of the same Australian All Eco Tourism venture, originally planned to begin in 1992/93. Because of my still-ongoing telephone problems, the venture had to be put on hold until Telstra could guarantee the Cape Bridgewater Holiday Camp had a reliable phone service. Cleaner Production Australia, who provided this appraisal, and Robert Palmer (an education consultant and the project manager referred to throughout this appraisal) both wrote about the ongoing problems they experienced whenever they attempted to contact the holiday camp by phone, between 1991 and at least July 1998, three years after my arbitration process was supposed to have fixed the phone problems.
This appraisal also describes the planned arrangements to set up the environment project and how it was finally halted completely in 1998, as the problems with the phone service were still causing serious problems for my business. The Hon David Hawker MP and numerous other government officials are all aware of my continued complaints that the arbitration process did not fix my phone and faxing problems at all. In February 1995, I provided a list of the interested parties wanting to be included in my proposed venture along with Robert Palmer, Education consultant who was to manage the project itself had also done his homework. The aforementioned list (chart) showing BP Australia, Greyhound Bus Lines (Australia), Sanitarium Foods, Grundy National Television Group and Portland Aluminium had all agreed to fund a project, based around my holiday camp, designed to bring international students from Japan to Australia. As part of that sponsorship programme, Portland Aluminium even agreed to move two portable buildings from their Portland ‘village’ to my holiday camp site. Those buildings would accommodate approximately 80 people altogether, and would include toilets and showers: assistance that would save me many thousands of dollars over the 10-year period of the planned project. The Shire of Glenelg also met with me on two separate occasions to see how best we could include them, as part of the project.
John Rundell’s statement (see above) to Derek Ryan (see Open letter File No/45-E) that “FHCA had excluded a large amount of information from their final report at the request of the arbitrator”, ties in with the excluded single club material and my Echo tourism venture losses which I provided, under confidentiality, to FHCA in February 1995, when it visited my business. The submitting of this singles club and echo tourism evidence into arbitration under confidentiality has never been transparently investigated.
The word of these two people is accepted over mine, regardless of clear evidence my claims are correct. Their misconduct, while minimising Telstra’s liability, was heavily detrimental to my case and was a deplorable act. Why should they get away with what they have, these past 22 years, just because they are highly regarded within Australia’s elite and I am just an ordinary citizen?
The Fourth Damning Letter
Dr Hughes wrote to the TIO on 23 January 1996, noting:
“I enclose copy letters dated 18 and 19 January 1996 from the Institute of Arbitrators Australia. I would like to discuss a number of matters which arise from these letters, including:
(a) the cost of responding to the allegations;
(b) the implications to the arbitration procedure if I make a full and frank disclosure of the facts to Mr James.”. (See Open letter File No/45-D)
It is confirmed from Chapter Three in our Prologue page (see below) that not only were these 24,000 documents not viewed by Dr Hughes and his resource unit it was he who refused me the extra time I had requested to submit two reports (into arbitration) which I had collated from these late received 20,000 FOI documents aware because they actually were supposed to have been freighted to Brisbane airport instead of the Portland airport 1,200 miles in the wrong direction. Dr. Hughes lies to Laurie James cost me dearly and continues to cost me dearly until these lies are investigated.
Had Dr. Hughes sidestepped John Pinnock, and instead made a full disclosure of the true facts surrounding my claims, the matters I am discussing on absentjustice.com would have been addressed in 1996. By reading all of Open Letter File No/51-A to 51-G and Chapters One to Four in our Prologue page, you can decide for yourself who is telling the truth concerning these late-released 24,000 alleged-read documents.
The Fifth Damning Letter
A further letter from Dr Hughes to the TIO on 15 February 1996 states:
“I would appreciate your confirmation that there is nothing in the proposed letter which would embarrass your office or jeopardise the current arbitrations.
“You may consider it appropriate for you to provide an independent letter of support. This is of course a matter for your discretion.” (See Arbitrator File No/43)
If Dr Hughes had conducted my arbitration in accordance within the ambit of the arbitration procedures, why would he seek confirmation from the TIO?
Arbitrator Part Two/Chapter Fifteen and Introduction File No 1-E confirm John Rundell advised the TIO, on 13 February 1996, the arbitration financial report, addressing my losses and which he was responsible for ensuring was factual in every detail, was not a complete report when submitted into arbitration for response by both Telstra and my financial adviser. In his same letter, the project manager states, “You should be aware that the Brighton CIB to interview Mr Smith in relation to criminal damage to my property…” When I read this comment, six years after it was written, I contacted the Brighton CIB (Victoria Police) who said they never intended to interview me regarding this matter and, in fact, they had no record of me being a suspect in any criminal matter at all.
When I explained to Mr Alan Cameron, the Chair of the Australian Securities Commission, that I had not only lost the Holiday Camp business as a direct result of the arbitrator only allowing his resource unit access to 11% of the claim material I had submitted or, at the very least, that the arbitrator had only allowed the resource unit to value 11% of my claim material Mr Cameron was most concerned. And he was even more seriously concerned when he learnt that NONE on my Over 40s Singles Club material (which made up part of my second business) had been assessed either, not by the arbitrator and not by Ferrier Hodgson Corporate Advisory (the financial arbitration unit). Then, on 17 March 1998, A. G Hodgson, the Chair of Ferrier Hodgson Corporate Advisory, wrote to Mr Cameron, claiming that DMR & Lane (the technical resource unit) did address all of the claim documents I had submitted to the Arbitrator, even though it is perfectly clear from Prologue/Chapters One and Two that NONE of my billing claim documents or my Singles Club losses were taken into consideration at all, when the arbitrator put together his final findings.
So not only did the COT Cases have Telstra (the defendants) to deal with, as they struggled to submit their claim material in full, they also had an arbitrator and a technical resource unit to contend with, along with the Chair of Ferrier Hodgson, who was even prepared to provide the Chair of the Australian Securities Commission with false information about the way the COT claims had been valued.
Even though I was almost in tears of frustration once I realised that I was being forced to deal with threats from Telstra in relation to what I had uncovered about faxes that never arrived at the arbitrator’s office, and even though it was clear that Telstra had most likely decided on those threats because of the assistance I had provided to the AFP, still my valid claims were simply dismissed by both Dr Hughes and the TIO (Warwick Smith).
The submission of this technical report, still incomplete, is deception on a very wide scale, involving some very prominent Australian identities, all of whom should have known better than to go along with this level of deceit in the first place, let alone remain involved in this deception for another 20 plus years. I first raised these two conflicting technical report issues with the TIO in August 1995, when the arbitrator’s secretary inadvertently provided them to me.
Had Dr Hughes allowed his technical consultants the extra time they officially advised him was required to correctly investigate my ongoing billing problems, any faults they found would have to be addressed before the arbitrator brought down a final award. Because no one investigated these ongoing faults during my arbitration, these faults were still apparent and I advised AUSTEL of this.
AUSTEL visited my business on 19 December 1995, seven months after my arbitration, and Mr Kearney took away with him all five bound billing volumes of evidence for assessment. His 26 February 1996 report, provided back to AUSTEL, used the very arbitration documents that Dr Hughes would not allow DMR and Lane to assess. This mini report shows that had Dr Hughes allowed DMR and Lane to investigate the evidence Darren Kearney later investigated then Dr Hughes’ findings would have been completely different.
The real truth about the arbitrator and his technical consultants and how their decisions affected me and my partner is firmly embedded in these two conflicting reports.
Despite this revelation and documented proof that my business losses were downgraded in order to minimise Telstra’s liability, no one has been brought to account for this unlawful omission of evidence and the downgrading of my claim.
The Sixth Damning Letter
On 17 February 1996 Dr Hughes wrote to to Laurie James, President of the Institute of Arbitrators (see point 3 above) attaching a copy of John Rundell’s letter of 13 February 1996 to the TIO). In this letter Dr Hughes advised Lauie James that:
“I consent to you disclosing this letter to Mr Smith, save that I do not consent to the disclosure of the attached correspondence from third parties.” (See Prologue Evidence File No/8-E)
Long before Mr Rundell and Dr Hughes wrote their letters in February 1996, AUSTEL, the government communications regulator, officially advised Mr Pinnock (see Open letter File No/46-K, dated 3 October 1995) and Mr Rundell (see Open letter File No/45-A, dated 15 November 1995) my concerns were completely valid and that NONE of the billing claim documents I legitimately raised in my 1994/95 arbitration process were investigated (or even addressed) during my arbitration process. Still however Laurie James was deliberately misled and deceived, not just by the arbitrator but also by the official administrator of the same arbitration. Mr James was the very person who could have asked so many seriously disturbing questions about why my arbitration was not conducted according to the ambit of the arbitration procedures.=
Anyone reading my letter to Gareth Evans, dated 4 January 1996 (see Open Letter File No/49), will conclude I raised some very serious issues, which affected all the arbitrations still in progress.
Dr Hughes’ letter to Laurie James, under the heading “Letter to Senator Evans,” states:
“Mr Smith provided you a copy of a letter to Senator Gareth Evans dated 4 January 1996. I presume you require me to comment on those aspects of the letter which reflect upon my conduct as an arbitrator.
“The letter to Senator Evans is littered with inaccuracies. Some examples are:
Why did Dr Hughes deceive Mr James in relation to these 24,000 documents, which Dr Hughes and his team could not possibly have read and collated? Why did the arbitrator tell Mr James that all those documents were assessed?
The Canadian and Australian technical consultants’ 30 April 1995 reports, under the heading “Cape Bridgewater Documentation,” states “More than 4,000 pages of documentation have been presented by both parties and examined by us.” (See Arbitrator File Nos/29 and 30) These reports are covered more thoroughly in other pages.
And at point 2.2 on page 4, in Dr Hughes’ final award, dated 11 May 1995, he notes, “In all, I have read in excess of 6,000 pages of documentary evidence submitted by the parties.” (See Prologue Evidence File No/9-A)
If either Mr James or Senator Evans were provided with the truth surrounding these 24,000 documents, my arbitration matters could have been completed in early 1996. So far, the arbitrator and the TIO office have managed to avoid being called to account for their devious and unethical conduct. Will they ever be held accountable?
Arbitrator File No/45 shows that on 30 March 1995 – 11 months before the arbitrator’s letters to Mr James – the arbitrator’s own resource unit wrote to the TIO outlining the progress of my arbitration. The timeline shows I advised them I received FOI material after my claim was finalised and that I “did not have the ability to examine these documents” in order to add to my claim.
John Wynack, Director of Investigations for the Commonwealth Ombudsman’s Office, and Tony Morgan, a National Chief Adjuster for GAB Robins (Australia), are both fully aware that most of these 24,000 documents were not related to my Cape Bridgewater business in any way. Not only did they not have any identification or schedules to explain where they were sourced from, but it was quite clear that some belonged to the Fortitude Valley and Lutwyche telephone exchanges in Brisbane, more than 1,200 kilometres from the telephone exchange my business was connected to. Clearly, this delivery of so many useless documents was deliberately designed to cause me as much heartache as possible.
There was also no mention in Dr Hughes’ letter to Laurie James concerning the documents provided by Telstra were not intended for me or that Telstra had continued to withhold the main arbitration requested document namely the Portland/Cape Bridgewater telephone exchange logbook, which was requested under FOI and through the process of discovery. Dr Hughes was aware Telstra had not released the exchange logbook, which had the working notes of all my telephone complaints and those of other local Telstra subscribers for the period of my claim. The veracity of logbooks is irrefutable, yet Dr Hughes would not request the Cape Bridgewater exchange logbook for me. The Commonwealth Ombudsman’s office also requested this logbook to be supplied, but was unable to obtain it. (See Home Page File No 10 -A to 10-B)
My facsimiles and subsequent follow-up telephone conversations, on 4 and 5 May, advised Dr Hughes of the nightmare these late 24,000 FOI documents caused for me and I asked for an investigation into why so many FOI documents, without proper FOI schedules, were sent to me when they clearly belonged to Ann Garms and Maureen Gillan.
On 5 May 1995, Dr Hughes wrote,
“I refer to your telephone message of 4 May and your facsimiles of 4 and 5 May 1995 and advise I do not consider grounds exist for the introduction of new evidence or the convening of a hearing at this stage.” He also reiterated his previous instructions: “any comments regarding the factual content of the Resource Unit reports must be received … by 5:00pm on Tuesday 9 May 1995” (See Call For Justice File No 88).
Dr Hughes cared little about the justice he denied me by not allowing me to submit those of the 24,000 FOI documents I could decipher. He also refused to convene a hearing to determine why Telstra’s threats – to withhold all future relevant FOI documents from me – came to fruition.
Threats carried out by Telstra because I assisted the Australian Federal Police (See Senate Evidence File No 31)
I raised these threats with Dr Gordon Hughes (arbitrator) and Warwick Smith (the administrator of the arbitrations) in a document dated 29 November 1994 (see Senate Evidence File No 31. The same issue was also covered in statements of concern made by the AFP on 26 September 1994 (see Australian Federal Police Investigations). Yet, neither Dr Hughes nor Warwick Smith attempted to intervene on my behalf, even though threats made to a claimant by the defence, during litigation, is classified as a criminal act. In fact, page 10 of Telstra’s own transcripts (taken by its lawyers during the official arbitration hearing on 17 February 1994) show when Graham Schorer (COT spokesperson) raised Telstra’s unethical conduct towards the COT cases, the TIO special counsel “indicated that there may be a duty to disclose to the police criminal matters”. (See TIO Evidence File No 9) Neither the TIO, TIO special counsel nor arbitrator contacted the police concerning my claims against Telstra or the TIO-appointed arbitration resource unit alerting the TIO, TIO special counsel and arbitrator that “It is unfortunate that there have been forces at work collectively beyond our reasonable control that have delayed us in undertaking our work.” (See Arbitrator Part Two/Chapter Nine)
The Seventh Damning Letter
On 27 February 1996, John Pinnock wrote to Laurie James President of the Institute of Arbitrators Australia (see point 4 above), attacked my credibility. The TIO deliberately misinformed Mr James that I had telephoned the arbitrator’s wife at 2am one morning:
“Mr Smith has admitted to me in writing that last year he rang Dr Hughes’ home phone number (apparently in the middle of the night, at approximately 2.00am) and spoke to Dr Hughes’ wife, impersonating a member of the Resource Unit.” (See page 3, Arbitrator File No /49)
Who advised the TIO that I telephoned at approximately 2am? The telephone account for the evening in question (also in Arbitrator File No /49) confirms I called at 8.02pm. It is bad enough to see the lies told regarding the actual time that I made this telephone call, but it is perhaps even worse to discover that my reason for making that call was concealed from Mr James. I phoned the arbitrator to alert him I had, that day – 28 November 1995 – received vital arbitration documents that I should have received during my arbitration and these documents definitively proved Telstra’s TF200 EXICOM arbitration defence report was manufactured to pervert the course of justice.
It was exciting to read that Telstra staff proved beer could not have stayed wet and sticky for 14 days – the time between the TF200 EXICOM leaving my premises and arriving at their laboratory. It was already evening but, in the heat of the moment, I rang the arbitrator’s home number. His wife answered and told me he was overseas and not due home for some days.
I was caught on the back foot; in my excitement, I had not considered the arbitrator would not answer the phone. I assumed the arbitrator had discussed the Parliament House rumours, concerning his use of a non-credible agreement, with his wife. I thought if she knew who was calling, she might be afraid I was ringing to accuse the arbitrator. Impulsively, I gave her another name: one I knew the arbitrator was familiar with – that of the FHCA project manager.
Later, I informed the TIO about my exciting find and that I tried to contact the arbitrator to pass on the news. I also explained I gave the arbitrator’s wife the FHCA project manager’s name, instead of my own, to prevent her from being alarmed. I asked him what he would do with this proof that Telstra had fabricated the beer in the phone story. The TIO responded flatly that my arbitration had run its course and he did not intend to involve his office in any further investigation. He said I should go to the Supreme Court of Victoria if I wished to take it further.
If I did write to the TIO, as he alleges in his letter to Laurie James, why didn’t the TIO produce my letter? The reason is, of course, that I never wrote any such letter. Just as deceitful as claiming I wrote such a letter, is the fact that the TIO’s letter to Laurie James was copied to the arbitrator.
Surely the arbitrator would have discussed my telephone call with his wife and been told by her that I had telephoned at 8.02pm and I was, at all times, courteous and respectful.
Did Dr Hughes and John Pinnock allow Dr Hughes’ wife’s name to be used to stop Mr James from uncovering Dr Hughes letter of 12 May 1995 (see Chapter Five below)? Or was it to stop Mr James from investigating Telstra’s conjured TF200 report.
There is more to our story and the way in which Dr. Hughes allowed his good wife’s name to be used to stop an investigation into the now proven conjured ‘sticky beer’ substance TF200 Arbitration Report.
I doubt, even now 20-plus years after the event, Dr Hughes’ wife knows he used her to stop a transparent investigation by Laurie James, (then president of the Institute of Arbitrators Australia) into why her husband and John Pinnock (the second TIO) would not investigate the fresh TF200 EXICOM evidence that arrived on 28 November 1995, confirming that 11 months previously Telstra fraudulently manufactured their TF200 EXICOM arbitration report. I am sure Mrs. Hughes would be alarmed that John Pinnock deceived Mr. James by advising I wrote to him stating I telephoned Dr. Hughes at 2.00 am when no such letter ever existed. John Pinnock’s letter, dated 27 February 1996, was also copied to her husband. Why did Dr. Hughes allow such a letter to be sent when he must have known I did not telephone his wife at 2.00 am at all: I telephoned at 8:02 pm to tell Dr. Hughes what this fresh evidence finally revealed (see Tampering With Evidence).
This tampering with evidence after it left my premises raises a most important question: why has the Australian government not advised the Telstra board that Telstra have both a legal and moral obligation to rectify these as a matter of public interest because this tampering with evidence, during a litigation process, was committed when the Australian Government and its people owned the Telstra Corporation.
It is bad enough to have to live with the knowledge that the Arbitration Resource Unit, and the Arbitrator, failed to investigate my complaints of the multiple, ongoing telephone problems that continued to haunt my struggling business throughout my arbitration process, but the situation becomes even worse when you consider what was to come when John Pinnock (the new administrator of the process) who also held the role of TIO advised Australian politicians that all of the problems I was still complaining about had been fixed during the arbitration, even though Mr Pinnock (the new TIO) were actually still receiving correspondence from Telstra, thirty-three months after my arbitration had ended, claiming that it ‘appeared’ as though the problems had continued to occur after the so-called ‘end’ of my arbitration. What this does highlight however is a clear indication of how corrupt the whole COT arbitration process was: it had been designed, from the very beginning, to cover-up Telstra’s bad workmanship, regardless of the cost, and the cost of that cover-up was the destruction of anyone who was prepared to stand up and raise legitimate complaints, with the Government, in relation to Telstra, on any level.
As we have shown on Open letter File No/46-A to 46-l and in Prologue/Chapters One, on 3 October 1995 and again on 15 November 1995, the Government Communications Regulator and the TIO’s Arbitration Resource Unit advised Mr Pinnock that Telstra had still not investigated or addressed any of my 008/1800 billing claim originally raised during my 1994 arbitration process but that didn’t stop Mr Pinnock from continuing to write to the Communications Minister’s office and my local Federal Member of Parliament, from January 1996 to January 1999 (and beyond) continuing to claim that the billing issues I had raised during that process had already been addressed in full during my previous arbitration of 1994, when the evidence shows that he knew full well that they had not been addressed during that process.
Living with the knowledge that these lies were told by the very same person who actually had the power to investigate them, but did not, is mind-destroying. Also mind destroying for the new owners of my business who purchased my holiday camp in December 2001, is that regardless of them complaining to the Communications Minister’s office my local Federal Member of Parliament, and Mr Pinnock from very early in January 2002 to September 2006 (see Bad Bureaucrats/Chapter One and Chapter Four) they they had inherited the same type of phone problems that I had suffered with since 1987, no one reinvested what went wrong during my arbitration.
The Eighth Damning Letter
I was entitled to receive this well-concealed 12 May 1995 letter during my designated appeal period, but I did not receive a copy until 2002 (and outside the statute of limitation period). In this letter, Dr Hughes states:
“…as far as I could observe, both Telecom and Smith co-operated in the Smith arbitration…”
“…the time frames set in the original Arbitration Agreement were, with the benefit of hindsight, optimistic;
“in particular; we did not allow sufficient time in the Arbitration Agreement for inevitable delays associated with the production of documents, obtaining further particulars and the preparation of technical reports…
“In summary, it is my view that if the process is to remain credible, it is necessary to contemplate a time frame for completion which is longer than presently contained in the Arbitration Agreement” (Open Letter File No 55-A)
The fax imprint across the top of this letter (Open Letter File No 55-A) is the same as the fax imprint described in the Scandrett & Associates report (see Open Letter File No/12, and File No/13), confirming faxes were intercepted during the COT arbitrations. The question the Telecommunication Industry Ombudsman and the Federal Attorney-General has still not answered is:
Was this letter actually faxed to my office by the ombudsman to assist me in any pending appeal process, and if not, why was such an important letter deliberately kept from me during my designated appeal period?
If I had received a copy of this letter declaring the agreement used in my arbitration process was not credible, then of course I would have appealed the arbitrator’s award. After all, how could an appeal judge argue against the arbitrator’s own findings that the agreement was not credible, even though he used it anyway?
Interception of this 12 May 1995 letter by a secondary fax machine:
Whoever had access to Telstra’s network, and therefore the TIO’s office service lines, knew – during the designated appeal time of my arbitration – that my arbitration was conducted using a set of rules (arbitration agreement) that the arbitrator declared not credible. There are three fax identification lines across the top of the second page of this 12 May 1995 letter:
- The third line down from the top of the page (i.e. the bottom line) shows that the document was first faxed from the arbitrator’s office, on 12-5-95, at 2:41 pm to the Melbourne office of the TIO – 61 3 277 8797;
- The middle line indicates that it was faxed on the same day, one hour later, at 15:40, from the TIO’s fax number, followed by the words “TIO LTD”.
- The top line, however, begins with the words “Fax from” followed by the correct fax number for the TIO’s office (visible
Consider the order of the time stamps. The top line is the second sending of the document at 14:50, nine minutes after the fax from the arbitrator’s office; therefore, between the TIO’s office receiving the first fax, which was sent at 2.41 pm (14:41), and sending it on at 15:40, to his home, the fax was also re-sent at 14:50. In other words, the document sent nine minutes after the letter reached the TIO office was intercepted.
“We canvassed examples, which we are advised are a representative group, of this phenomena [sic].
“They show that
- the header strip of various faxes is being altered
- the header strip of various faxes was changed or semi overwritten.
- In all cases the replacement header type is the same.
- The sending parties all have a common interest and that is COT.
- Some faxes have originated from organisations such as the Commonwealth Ombudsman office.
- The modified type face of the header could not have been generated by the large number of machines canvassed, making it foreign to any of the sending services.”
One of the two technical consultants attesting to the validity of this fax interception report emailed me on 17 December 2014, stating:
“I still stand by my statutory declaration that I was able to identify that the incoming faxes provided to me for review had at some stage been received by a secondary fax machine and then retransmitted, this was done by identifying the dual time stamps on the faxes provided.” (Front Page Part One File No/14)
It is also clear from Front Page Part One File No/1, File No/2-A to 2-E, File No/3, File No/4 and Front Page Part One File No/5, that numerous documents faxed from my office to the arbitrators office did not reach their intended destination.
Many within the Establishment said that it was actually unconstitutional to force the COT cases into an arbitration process with Telstra while the Australian Federal Police (AFP) were still investigating Telstra for alleged phone and fax hacking of the COT cases’ businesses and, furthermore, it was acknowledged that it was clearly an unworkable process. This didn’t stop the arbitrations, however, although it does raise a number of important questions:
- How could two separate investigations into Telstra, for allegedly unlawful conduct, be undertaken by two different organisations at the same time, i.e., an arbitrator as well as the AFP? As far as we can find, this situation is unheard of in any other Western democracy.
- While all the COT cases attempted to keep their individual small businesses going while their arbitrations continued, how could we be expected to submit complex submissions to an arbitrator and, at the same time, assist the AFP with their investigations?
- Who decided that this situation would be allowed to continue?
I was entitled to receive this well-concealed 12 May 1995 letter during my designated appeal period, but I did not receive a copy until 2002 (and outside the statute of limitation period). In this letter, Dr Hughes states
TIO Media Release 12 May 1995
Warwick Smith was supplied advice, on 18 April 1995, from none other than John Rundell, stating there were “forces at work” that derailed the process. I discussed with Warwick Smith, twice, Telstra’s threats of withholding FOI documents, because I assisted the Australian Federal Police and that this eventuated. Surely all this was enough for Warwick Smith to call the whole arbitration process a farce and ask the minister to intervene? Yet, this did not happen, not even after Dr Hughes’ 12 May 1995 advice. In most Western democracies, this would have been enough for an investigation.
Instead, a little more than two hours after Warwick Smith (the TIO and administrator of the process) received Dr Hughes’ 12 May 1995 letter, he put out a media release stating:
“The Administrator noted that the arbitration process, under the direction of the independent Arbitrator Dr Gordon Hughes, appointed with the agreement of the parties, had been run in accordance with principals of natural justice.” (See Open Letter File No 55-B)
Warwick Smith both misled and deceived the public in this media release headed 1st Telecom COT Case Arbitration Finalised: even though this release didn’t name which claimant he was referring to, it is well known I was the first to go through the process.
So, before Warwick Smith put out this media release, why didn’t he advise the relevant communications minister, Michael Lee MP, and the public, that Telstra destroyed some documents I needed and deleted relevant information from others, particularly since I had provided Mr Smith with evidence of this?
Why didn’t he advise anyone that Telstra not only threatened to withhold all the relevant documents I needed to support my claims and that they actually carried out those threats?
Perhaps Warwick Smith was concerned that, if he did raise these problems with the Hon Michael Lee MP, or reveal them to the public, then there would have been an instant demand for answers to questions like:
Why didn’t he and the arbitrator, Dr Hughes, contact the Supreme Court of Victoria and/or the relevant authorities to request a proper investigation into the situation that the COTs had found themselves in, through no fault of their own, when it first became clear that Telstra was acting as a law unto themselves?
This raises even more questions, particularly in relation to Warwick Smith’s media release. Why did he:
- Collude with the arbitrator by allowing the defendants to draft their own arbitration rules for the process instead of providing the independently drafted agreement that both Warwick Smith and the arbitrator assured the media, politicians and claimants, would be prepared?
- Refuse to supply the COT cases with a copy of Telstra’s preferred rules of arbitration as soon as questions arose about the possibility that the arbitration agreement was based on Telstra’s version?
- Allow the defendants to be present at monthly TIO board and council meetings where various COT case arbitrations were discussed?
- Allow Dr Hughes to continue to use an arbitration agreement that Dr Hughes, himself, stated was not a credible document to have used and needed revising (for the remaining claimants), even though Dr Hughes used it all the way through my COT arbitration and the result was allowed to stand?
- Allow Dr Hughes and his arbitration technical unit to assess and investigate less than 11 per cent of my legally submitted claim documents?
- Allow Dr Hughes to only assess losses that came from my school customers, which were the least lucrative customers, while ignoring the more lucrative over-40s singles-club losses?
- Allow the defendants to have access to my claim material, during my arbitration, before it was submitted to the arbitrator?
- Organise, with the defendants, that the TIO-appointed resource unit and the defendants would decide which arbitration procedural documents would be passed on to the arbitrator for assessment and which would be concealed from the process altogether (something which is not mentioned anywhere in the official arbitration agreement)?
- Deliberately hide all these facts from the public in his 12 May 1995 media release?
- Also withhold from the public that, although the arbitration consultants wanted extra weeks to address my ongoing billing problems, these extra weeks were not allowed?
We can only guess at the answers to these 10 questions. However, it is quite clear that, if Warwick Smith had revealed the actual truth about our arbitrations, then there would have been such an outcry from the Australian public – and from many government ministers too – that Warwick Smith and Dr Hughes would have been brought into disrepute, along with all the others involved in the administrative side of the process, for having allowed this deplorable situation to continue for so long. That would have led to major pressure being applied for Warwick Smith and Dr Hughes to officially call the entire COT arbitration process null and void.
Dr Hughes writes to Warwick Smith, confirming Dr Hughes’ view that the arbitration agreement rules he had just used in my case had not allowed enough time for: “… the production of documents, obtaining further particulars, and the preparation of technical reports.” Dr Hughes went further, actually apologising for: “… the brevity…” of his comments and noting that the time frame for future arbitrations would need to be longer than it presently was.
On the second page of his letter, Dr Hughes further notes: “There are some procedural difficulties which revealed themselves during the Smith arbitration and which I would like to discuss with you when I return” (from a trip to Greece).
Warwick Smith withheld this letter from Alan Smith, even though he could have forwarded it on during the designated appeal period allowed for in the arbitration agreement, and Alan Smith has never been given any explanation as to what “procedural difficulties” Dr Hughes encountered during Alan’s arbitration.
Dr Hughes letter to Warwick Smith was faxed to the TIO’s office on the following Saturday afternoon at 14.41 hours and then re-faxed to Warwick Smith’s home at 14.50 hours the same day. At 17.15 hours, four documents, including a Media Release, were faxed to various TIO Board and Council members. The Media Release, from Warwick Smith, announced that: “The Administrator noted that the arbitration process, under the direction of the independent Arbitrator, Dr Hughes, appointed with the agreement of the parties, had been run in accordance with the principles of natural justice.”
PLEASE NOTE: The Media Release does not refer to Dr Hughes’ written opinion (see Open Letter File No 55-A) that: “… if the process is to remain credible, it is necessary to contemplate a time frame for completion which is longer than presently contained in the Arbitration Agreement.”
In Dr Hughes’ draft award on page 4 at 2.23 he states:
“…Although the time taken for completion of the arbitration may have been longer than initially anticipated, I hold neither party and no person responsible. Indeed, I consider the matter has proceeded expeditiously in all the circumstances. Both parties have co-operated fully, (See Prologue Evidence File No 57-C)
What is amazing about this draft award inadvertently provided to Alan by the TIO office in 2002, is that at the side column of this clause someone has hand-written the notation “…Do we really want to say this?” One would have to assume from this hand-written statement that they believed the arbitration process had not been as transparent as it should have. In the final Award there is no clause 2.23 or any reference to both wordings.
What is significant about the 2.23 File No 57-C, is that Dr Hughes did know Telstra was not abiding by agreed process of discovery via the FOI Act, because his office not only received John Wynack’s letter see (Prologue Evidence File No 57-A to 57-B), they also received John Rundell Arbitration Project Manager’s letter dated 18th April 1995 which noted:
“It is unfortunate that there have been forces at work collectively beyond our reasonable control that have delayed us in undertaking our work.” (See Prologue Evidence File No 22-A)
On 26 September 1997, three months after the Senate exposed the COT strategy the Telecommunications Industry Ombudsman John Pinnock formally addressed a Senate estimates committee (see page 99 > COMMONWEALTH OF AUSTRALIA – Parliament of Australia): noting:
“In the process leading up to the development of the arbitration procedures – the claimants were told clearly that documents were to be made available to them under the FOI Act.
“Firstly, and perhaps most significantly, the arbitrator had no control over that process, because it was a process conducted entirely outside the ambit of the arbitration procedures.”
The Government Solicitor was brought into the arbitration process to ensure that Telstra provided the claimants with all the FOI documents they required but Telstra only followed these instructions after they had submitted their defence of Alan’s claim, making a mockery of the whole arbitration process, particularly since it has now been confirmed that some of the most relevant information was not given to Alan until weeks or, in many cases, months after the TIO had deemed his arbitration to have been ‘successful’.
Dr Hughes removed point 2.23 from his draft award. This point notes:
“Although the time taken for completion of the arbitration may have been longer than initially anticipated, I hold neither party and no person responsible. Indeed, I consider the matter has proceeded expeditiously in all the circumstances. Both parties have co-operated fully…”
What is most disturbing about this is that Dr Hughes was fully aware that my arbitration had NOT “proceeded expeditiously in all the circumstances” as well as knowing that Telstra had NOT co-operated fully. He also knew he lacked the courage to bring in the Victoria police to investigate why Telstra thought it appropriate to threaten me that if I continued to assist the Australian Federal Police with its investigations, by supplying FOI documents suggesting Telstra was intercepting my telephone conversations and faxes, then Telstra would stop fulfilling my FOI requests. Why didn’t Dr Hughes go one step further when I advised him Telstra was indeed carrying out its threats and abandon the arbitration process or asked the Supreme Court of Victoria for advice on how to handle this matter, if he was not sure of the protocol?
To not write the truth in his final award – that I had not received a just process, because of poor time frames in the arbitration agreement, compounded by Telstra ceasing to supply FOI documents because I carried out my civic duties and assisted police in their investigations – is possibly the worse breach of trust by an arbitrator towards a claimant.
On 12 May 1995, the day after Dr Hughes allowed his final award to be released, knowing it minimised Telstra’s liability towards me, he stated, “As far as I could observe, both Telecom and Smith co-operated in the Smith arbitration.” This statement shows he is not a true person of character and he has allowed me to live with all these untruths for the past 24 years. Considering Dr Hughes’ own arbitration project manager John Rundell, on 18 April 1995, wrote to TIO Warwick Smith (copied to Dr Hughes) ” (see Prologue Evidence File No 22-A) stating, “It is unfortunate that there have been forces at work collectively beyond our reasonable control that have delayed us in undertaking our work.” And yet, Dr Hughes still removed point 2.23 in his award and made no reference to how badly Telstra behaved during the process.
The Domino Effect
On 24 January 1995,I responded to Dr Gordon Hughes’ very important 23 January 1995 letter, although I didn’t receive any acknowledgement that Dr Hughes had received it. John Pinnock, the second TIO, later wrote to me (on 28 June 1995) claiming that no-one had received my response to Dr Hughes’ letter, so therefore, according to Mr Pinnock, the record showed that I had not replied.
After the statute of limitations had expired, and I could therefore no longer appeal my arbitration award, the TIO’s office actually returned most (but not all) of my arbitration documents, and what was one of the documents that I DID get back? Yes, the letter I faxed to Dr Hughes on 24 January 1995 was included, with my fax machine identified across the top of the document. This proves, of course, that I had complied with Dr Hughes instructions, which only allowed me twenty-four hours to respond. Mr Pinnock’s 28 June 1995 letter can be accessed at absentjustice.com/Open Letter File No/52-A to 52-C.
If Dr Hughes had replied to my 24 January 1995 letter, which we now know his office definitely DID receive, I could then have proved Telstra’s fraudulent defence of my claims and I could have also raised serious questions about exactly how fraudulent Telstra’s behaviour was, overall, not only during my arbitration but possibly in other COT arbitrations as well.
Open Letter File No/52-A to 52-C is just one of those many situations where unscrupulous people involved in the COT arbitrations cared little for the rights of the COT claimants.
I am certainly not saying that Dr Hughes himself claimed that he did not receive my very important 24 January 1995 letter, which would have changed the whole outcome of my arbitration, and possibly changed the outcome of many of the other COT arbitrations as well.
Let me reiterate: if the arbitrator had actually received the letter I sent him on 24 January 1995, and if he had responded accordingly and therefore asked Telstra to provide the Cape Bridgewater/Bell Canada International (BCI) testing data that related to those alleged calls, and if I had received a copy of that important data back in 1995, during my arbitration, instead of after my arbitration was over, I could have proved that BCI did not test the Cape Bridgewater RCM Exchange and that BCI did not use the CCS7 testing process they claimed to have used because the nearest Exchange that could facilitate that specialized equipment was in Warrnambool, 116 kilometres away. But, for whatever reason, Dr Hughes apparently didn’t get my letter and so, as his award for my case states, he accepted that false BCI testing data into evidence, which means that he based his findings on inaccurate defence documents – and this was just one of a number of important documents that were concealed from the arbitration process!
If it is at all possible for something even worse to have occurred, on 23 May 1995, after my arbitration had been officially declared to be over, one of the members of the TIO’s Council (while wearing his Telstra hat) finally provided me with conclusive proof that Telstra had indeed admitted to BCI Canada that the Telstra/Cape Bridgewater/BCI tests were impracticable. Although this person was also (again officially) Telstra’s main arbitration defence liaison officer, still he waited until after Dr Hughes had handed down his award before he provided me with that vital information, twelve months after I had officially requested it.
Arbitrator Part Three/Chapter Thirteen explains how the TIO, Dr Hughes and the TIO’s Special Counsel eventually became alarmed at what I had uncovered, including that twelve months that I had been forced to wait before they supplied the BCI evidence but, instead of demanding answers from Telstra they chose the path that would not ‘Open the Can of Worms’ (the TIO’s words, not mine) and so all of them, along with Telstra too, agreed not to address this very serious matter at all.
As stated above, the Australian Telecommunications Industry Ombudsman (TIO) is funded by the telecommunication carriers themselves, which means that it can hardly be called impartial, on any level, but particularly when they are involved in arbitration and their wages are partly paid by the defendants in that arbitration! Evidence available at absentjustice.com shows that, during the COT arbitrations against Telstra (the defendant), the TIO allowed Telstra executives to be present at both TIO board and council monthly meetings. The TIO has since admitted, under oath, that he allowed this attendance even though arbitration issues were discussed at these meetings. Were any COTs (the complainants in this legalistic arbitration process) allowed to attend those same meetings, or even invited to attend? Of course not! And did anyone in any position of power ever attempt to put the complainants on the same footing as the defendants? Certainly not. Once again, the COTs were left out in the cold.
The findings of Justice Fitzgerald and Justice Woods’ royal commission investigations into police corruption in Queensland and New South Wales, and the findings of various other investigations into government agencies over the years, state that no organisation that has claims made against it can legally investigate itself. The current Victorian government is funding a royal commission into the potentially corrupt use of police informants that will commence in 2019. The Victorian government has commissioned Malcolm Hyde AO APM from South Australia to ensure the government is seen to be impartial.
More than half the complaints the COT cases raised with the Australian government are either against TIO officials involved in the COT arbitrations or arbitration resource unit. Although I have since taken those complaints to the State Ombudsman, Consumer Affairs Victoria, .the Australian Competition and Consumer Commission (ACCC), the Australian Communications and Media Authority (ACMA) and various government ministers, they all have the same advice: take my matters back to the TIO, even though those government-funded organisations must know the TIO’s office cannot investigate itself. It seems therefore that justice, the Australian way, involves running ordinary Australian claimants around and around in circles in the hope they will become so exhausted, and probably financially ruined, that they give up their fight. This is what has been done to me and the other COT cases for the past 22 years, while those who acted inappropriately towards us, those who instigated the roundabout and those who caused the Australian justice system to fail, have their inappropriate conduct buried, safely out of sight. It is perfectly clear: the law does not permit a party to an allegation to investigate itself.
listened into my telephone conversations (see Front Page Part One File No/18-A to 18-C).
On the 28 January 2003, a letter from TIO officer Gillian McKenzie to Telstra states:
“Mr & Mrs Lewis claim in their correspondence attached:
“That they purchased the Cape Bridgewater Coastal Camp in December 2001, but since that time have experienced a number of issues in relation to their telephone service. Many of which remain unresolved.
“That a Telstra technician “ Tony Watson” is currently assigned to his case, but appears unwilling to discuss the issues with Mr Lewis due to his contact with the previous camp owner, Mr Alan Smith.”
Was there a more sinister motive involved in Tony Watson refusing to help Darren Lewis with the ongoing phone/fax problems that, nine years before, Telstra and the arbitrator assigned to my case had failed to investigate transparently? Why was this Telstra technician still holding a grudge against me in 2002/03 because of something my 1994/95 arbitration should have addressed – i.e. the ongoing phone and facsimile problems that this same Telstra technician was now refusing to help Mr Lewis with, nine years later. Threats were nothing new to Telstra as our website absentjustice.com shows.
On 4 September 2006, Darren Lewis provided the Hon Senator Helen Coonan, Minister for Communications, Information Technology and the Arts, with a two-page statutory declaration noting:
“Letters from us to our local Federal Member of Parliament, the Hon David Hawker, Speaker in the House of Representatives, led to Telstra visiting our business to investigate these continuing problems.
“After Telstra rewired the business including disconnecting a Telstra installed faulty phone alarm bell, we were informed Telstra had found other problems and believed who ever had installed the wiring had done an unprofessional job.
“Internal Telstra documentation provided to me by Allan Smith confirmed Telstra themselves had done the wiring.
“Jenny and I noticed that although our incoming-call rate had more than doubled once this wiring had taken place Telstra was still unable to provide a satisfactory reason as to why we were still having problems. …
“The technicians then in hook up consultation with outside office guru’s [sic] did a fault graph reading on our 55 267267 line with the outcome that their office technical staff stated words to the affect [sic] the reading was impossible (couldn’t be correct). It was then that the local technician became quite annoyed when the technical guru insinuated that the equipment the local tech was using must be faulty. The local tech then informed the technical guru that there was nothing wrong with the equipment at all.” (See Main Evidence File No 13)
Most, if not all, of the COT cases suffered from sleep disorders and stress for years as a result of their battles, as Chapter One in Arbitrator Part-One shows. On 23 February 2007, after Darren Lewis become suicidal following a confrontation with Telstra over ongoing telephone problems at the camp, a Psychologist from Portland Psychiatric Services visited my Cape Bridgewater residence. She was struggling to understand what Darren was talking about and why he felt suicidal. I provided this Psychologist with documents supporting Darren’s valid claims about Telstra’s defective services, adding that I was sorry that Darren had ended up this way.
I provided a number of documents to this Psychologist to support that part of Darren’s psychological problems could well be related to his ongoing unaddressed telephone faults. One of those documents was a letter addressed to me dated 8 November 2002, from a man in South Australia, stating:
“I am writing to you following viewing the Channel 9 Sunday Program on 3/11/02. After viewing the Sunday program, I realised the similarities you [sic] business and others had with Telstra some ten years ago with the similarities our building business had, when we lived at Bridgewater.
“During this period of time I was on a call talking to a councilor [sic]. She believed that the conversation we were having was being bugged, or listened into, and we immediately ceased the call.
“Our phone problem had such a negative effect on our building business over a period of time that our work dried up and or [sic]business shut down.” (See Home Evidence File No/15)
After reading these two letters this Portland Psychologist drew up a Risk Management Plan for Darren to use (exhibit AS 629), including a warning that, if Darren felt suicidal again, he should not only share those thoughts with his wife but also with me as well as with Portland Health.
I believe that Darren first became concerned about the possibility that his phone conversations also may have been illegally listened to when he discovered my accreditation file in the camp office, where I had inadvertently left it when handing the Camp over to Darren. This file included Australian Federal Police/Telstra intercept documents, including one dated 14 April 1994 from Telstra to the AFP, notifying them that Telstra had installed equipment in the Portland exchange so that a bell would ring whenever I received an incoming telephone call, so that the person on duty could then listen in on those conversations. I provided this Risk Management Plan (exhibit AS 629) to the Australian Government as well as the Administrative Appeals Tribunal during my 2008 Freedom of Information hearing – No V2008/1836.
And, in 2008, Darren Lewis wrote:
“I was advised by Ms McCormick that the Federal Magistrates Court had only received on 5th December 2008 an affidavit prepared by Alan Smith dated 2 December 2008. PLEASE NOTE: I originally enclosed with Alan Smith’s affidavit in the (envelope) overnight mail the following documents:
- Two 29 page transparent s/comb bound report titled SVT & BCI – Federal Magistrates Court File No (P) MLG1229/2008 prepared by Alan Smith in support of my claims that I had inherited the ongoing telephone problems and faults when I purchased the Cape Bridgewater Holiday Camp
- Two s/comb transparent bound documents titled Exhibits 1 to 34
- Two s/comb transparent bound documents titled Exhibits 35 to 71 (the attached 71 Exhibits was enclosed in support of Alan Smith’s 29 page report);
- Three CD Disks which incorporated all of the submitted material.
“On learning from Ms McCormick that the information discussed above in points 1 to 4 had not been received by the Federal Magistrates Court I again had a stress attack seizure, a problem I have been suffering with for quite some time due to the predicament I now find myself in and the disbelief that once again my mail has been intercepted. I have attached herewith dated 3rd December 2008, a copy of the Australia Post overnight mail receipt docket numbers SV0750627 and SV0750626 confirming the total cost to send the above aforementioned information was $21.80. I am sure Australia Post would confirm that a large amount of documents would have been enclosed in these two envelopes when they left Portland.” (See My Story Evidence File 12-A to 12-B)
Australia Post will not charge any postage fee for an overnight parcel unless they stamp and retain it. Since neither of these parcels arrived at their proper destination with all of the information originally enclosed, those documents must, therefore, have been ‘lost’ between the Portland Post Office and the Magistrates Court.
As I have reported on our Front Page Part One, numerous Telstra COT related arbitration documents (like those lost on route to the Federal Magistrates Court in December 2008) were also lost during 1994/95 on route to the arbitrator hearing my case.
As Darren’s letter shows, I helped him prepare his bankruptcy appeal against the Australian Taxation Office (for back taxes) using my own evidence that the Telstra Corporation, knowingly submitted two false and fundamentally flawed Cape Bridgewater reports to the arbitrator during my arbitration, to deliberately mislead the arbitrator into believing that there were no more ongoing phone problems affecting my business, even though Telstra knew d