Prologue

Last edited January 2019

Chapter One.

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:

  1. Dr Hughes and Mr Smith decided to allow Telstra to freely manipulate the process, with no oversight in place to stop them; and
  2. 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.

John Rundell, in this 15 November 1995 letter (see Open letter File No/45-A), states:

“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?

On page one of Mr Rundell’s letter, dated 15 November 1995, he also advised Mr Pinnock Open letter File No/45-that:

“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 terminated calls. This lock-up problem not only stopped calls and faxes leaving or coming in to 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. As the billing problems were not investigated, the lock-up problems were also not investigated.

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.

Chapter Two

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.

School children on the beach

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.

Over Forties Singles Club

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.

Chapter Three

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:

  • contrary to Mr Smith’s assertion on page 3, his 24,000 (sic) documents were all viewed by me, Ferrier Hodgson Corporate Advisory, DMR Group Inc (Canada) and Lane Telecommunications Pty Ltd in accordance with the arbitration procedure.” (See Open letter File No/45-G and Open Letter File No/49)

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)

Chapter Four

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 Hugheshome 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.

Chapter Five

The Eighth Damning Letter

Barrister[1]

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 had declared not credible. There are three fax identification lines across the top of the second page of this 12 May 1995 letter:

  1. The third line down from the top of the page (i.e. the bottom line) shows that the document was first correctly faxed from the arbitrator’s office, on 12-5-95, at 2:41pm to the Melbourne office of the TIO – 61 3 277 8797;
  2. The middle line indicates that it was faxed on the same day, exactly one hour later, at 15:41, from the TIO’s correct fax number, followed by the words “TIO LTD” to;
  3. The top line, however, begins with the words “Fax from”, followed by the correct fax number for the TIO’s office, and then the date (12/05/95) and the time (14:50).

Consider the order of the time stamps. The top line (3) is the second sending of the document at 14:50, nine minutes after the fax from the arbitrator’s office (1) therefore, between the TIO’s office receiving the first fax, which was sent at 2.41 pm (14:41) and sending it on at 15:41, exactly one hour later, to his home (2), the fax was re-sent at 14:50 (3). In other words, the document sent nine minutes after the letter reached the TIO office was intercepted (See Open Letter File No 55-A)

The fax imprint across the top of this letter is the same as the fax imprint described in (see Open Letter File No/12, and File No/13), the Scandrett & Associates report, which states:

“We canvassed examples, which we are advised are a representative group, of this phenomenon.

“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 (see Front Page Part One File No/14), 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.” 

It is also clear from  Front Page Part One File No/1, File No/2-A to 2-EFile 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 of those 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, but it does raise a number of important questions:

  1. 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.
  2. While all the COT cases attempted to keep their individual small businesses going while their arbitrations continued, how could they be expected to submit a complex submission to an arbitrator and at the same time, assist the AFP with their investigations?
  3. Who decided that this situation would be allowed to continue?

Not only was it grossly undemocratic for these small-business people to be put into such a situation but, while these two investigations (the one run by the AFP and the arbitrations themselves) were being run concurrently. While these two investigations were being run concurrently, the Commonwealth Ombudsman was also investigating Telstra for acting unlawfully and outside of the Freedom of Information Act (FOI Act, 1984), for NOT supplying the COT cases with our promised FOI documents we needed to support our claims. That investigation started before the COTs signed their arbitrations and continued for the whole five-year period of the COT arbitrations.

The link to Australian Federal Police (see the menu barabove) provides more detail regarding the privacy issues connected to the names, addresses and phone numbers of my Over 40s Singles Club members, which I was asked to provide to the arbitrator and Telstra (the defendants), even while Telstra were, at the same time, being investigated by the Australian Federal Police for their unauthorized phone tapping of some of the female members’ telephone conversations, along with other telephone conversations too.

Chapter Six

Continued from Chapter One above.

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, and the official TIO) advised Australian politicians that all of the problems I was still complaining about had been fixed during the arbitration, even though, as the new TIO, Mr Pinnock was 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/Chapter 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 the 008/1800 billing claims I 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) and continuing to claim that all the billing issues I had raised 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 who chose not to, is mind-destroying and it certainly was also mind-destroying for the new owners of my business who purchased the holiday camp in December 2001 because, regardless of the numerous complaints they lodged with the Communications Minister’s office, with our local Federal Member of Parliament, and with Mr Pinnock from very early in January 2002 to September 2006 (see Bad Bureaucrats/Chapters One and Four), they inherited the same, major phone problems that I had suffered since 1987.

If such an investigation had been organised very early after my arbitration was declared a roaring success (see Prologue Chapters Two to four), it would have revealed how one of the reasons for these ongoing billing problems was that the Telstra infrastructure at Cape Bridgewater, including the wrongly installed EXICOM TF200 telephones (see Tampering With Evidence), caused the equipment to incorrectly register the line as open when the line had actually been disconnected.  When AUSTEL’s Daren Kearney visited my business on 19 December 1995, however, he admitted that this was just one of the factors that appeared to be causing the ongoing billing problems.  Mr Kearney’s secret report, which was then produced, seven months after my arbitration was over, clearly discusses my ‘unaddressed arbitration billing evidence’.

It is interesting to  also note that, without advising the arbitrator, Dr Hughes, AUSTEL then allowed Telstra to address my billing evidence outside the legal arena of my arbitration procedure, and entirely in secret which, for a Government Regulator, is classed as a legal offence (see Arbitrator / Part Three / Chapters Thirteen and Fourteen).

So, we know that in Australia at least, it is unheard of that an official Government Communications Regulator would have allowed Telstra to address civil, legal, arbitration claim documents that had been legally submitted by a claimant to a legal arbitration process, without notifying that claimant or allowing that claimant the right of reply or, for that matter, without allowing the arbitrator to comment on this clandestine operation in his award, yet Telstra tendered this submission on 16 October 1995 (see Open letter File No/46-L), to the serious detriment of me as a claimant in that arbitration processes.

Back on 19 December 1995, AUSTEL’s Darren Kearney drove the ten hour round trip from Melbourne to Cape Bridgewater after I had agreed to release my arbitration claim material to the Government, including, of course, the material that Telstra and the arbitrator had not addressed during my arbitration.  At that meeting however Mr Kearney did not inform me, on any level, that the Government had already allowed Telstra to covertly address these issues on 16 October 1995 (two months earlier) and nor did he warn me that the Government had queried Telstra’s submission, and that was why they wanted to assess my material.  We don’t even really have to join these ‘billing problems’ matters together to understand that this is possibly the worst thing any Government could put a claimant through and remember, I had just spent $200,000 in arbitration fees for what turned out to be a useless arbitration process,  because the telephone and fax faults continued to haunt my business.

I provided billing information to Mr Kearney (see Arbitrator File No/109) showing 27 examples where Telstra’s own Call Charge Analysis System (CCAS data) did not match the billing information Telstra was forcing their customers to pay under threat of disconnection. There was NO safety net for Telstra consumers to argue concerning these wrongly billed accounts. We can only assume that this large discrepancy in what Telstra was extracting from customers, at that time, was the reason Dr Hughes could not possibly find in my favour, and why AUSTEL allowed Telstra to address these arbitration issues in camera, which, as stated above, disallowed me my legal right the challenge what Telstra submitted to AUSTEL. The claim documents I provided to AUSTEL showed Telstra was overcharging customers on average by 11 per cent (see Open letter File No/46-F).

Please view the following Manipulating the Regulator link as the follow onto to the above AUSTEL issues:

Manipulating the Regulator

 

Download Attachments

  • pdf Prologue Evidence File No/2
    AUSTEL's Chairman Robin Davey notes: "...I would be more than a little concerned if they were to have a continuing role".
    File size: 3 MB Downloads: 317
  • pdf Prologue Evidence File No/3
    Telstra's Corporation Limited "Fast Track" Proposed Rules of Arbitration.
    File size: 3 MB Downloads: 318
  • pdf Prologue Evidence File No/4
    Confirmation I was still registering my phone complaints (during my FTSP) with Telstra's outside lawyers who then went onto becoming Telstra's arbitration defence lawyers to my claim.
    File size: 4 MB Downloads: 363
  • pdf Prologue Evidence File No/5
    “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”.
    File size: 738 KB Downloads: 336
  • pdf Prologue Evidence File No/6-A to 6-I
    Confirmation that the 008/1800 billing issues raised in my arbitration claim were should have been investigated during my arbitration. They were not investigated during my arbitration.
    File size: 9 MB Downloads: 459
  • pdf Prologue Evidence File/No 7
    Telstra’s Arbitration Liaison Officer wrote to the TIO in 11 July 1994 stating: “Telecom will also make available to the arbitrator a summarised list of information which is available, some of which may be relevant to the arbitration. This information will be available for the resource unit to peruse. If the resource unit forms the view that this information should be provided to the arbitrator, then Telecom would accede to this request”.
    File size: 311 KB Downloads: 322
  • pdf Prologue Evidence File No/8-A to 8-E
    This letter to me dated 10 January 1996 from John Pinnock (TIO) was sent during my pending appeal process stating: "...I do not propose to provide you with copies of any documents held by this office".
    File size: 3 MB Downloads: 316
  • pdf Prologue Evidence File No/9-A to 9-D
    Memorandum from the arbitration resource unit dated 30 March, 1995 to Warwick Smith states on page 2 that: "...Smiths claim was formally certified complete in November 1994. Smith has stated verbally to myself, that on 23 December 1994, he received 90 kilograms of FOI material. As his claim was "finalised" he did not have to ability to examine these documents and add to his claim".
    File size: 2 MB Downloads: 341
  • pdf Prologue Evidence File No/10-A to 10-F
    This letter dated 28 January 2003, from the TIO Office to Telstra discusses the phone problems that the new owners of my business was still having twelve months after the purchased my business.
    File size: 3 MB Downloads: 274
  • pdf Prologue Evidence File No/11-A to 11-C
    This letter written by me to John Pinnock on 26 June 1996, was returned to me in 2002 from the TIO office (under my request) for all arbitration related documents to be provided under the privacy act. This particular letter in the right hand bottom corner someone has hand written the following statement "...These are serious allegations. We need to respond to specific letters Smith says weren't received and provide answers on each". I never received a response
    File size: 2 MB Downloads: 268
  • pdf Prologue Evidence File No/12
    Senate Estimates Hansard dated 26 September 1997
    File size: 1 MB Downloads: 190
  • pdf Prologue Evidence File No/13
    AUSTEL's COT Cases Report of 13 April 1994, shows that the assessor/arbitrator could not bring down a finding until all parties to the arbitration was prepared to sign off that the telephone faults had been fixed.
    File size: 1 MB Downloads: 138
  • pdf Prologue Evidence File No/14-A to 14-B
    Senate Hansard dated 2 September 1993, showing at least one of Telstra's executive Mr Von Willer has not correctly advised the government concerning the telephone exchange problems experienced by COT Cases Ann Garms and Maureen Gillan. The statement made by Senator Boswell that: "...We have now heard from Mr Von Willer that the Valley exchange is just like every other exchange in Australia. We have tabled a document from Telecom saying it is the greatest embarrassment to Australia and Mr Von Willer comes in here and tells us there is nothing wrong with Telecom."
    File size: 3 MB Downloads: 140
  • pdf Prologue Evidence File No/15
    Amendment C92 to the Glenelg Planning Scheme: expert witness statement dated April 2018, from Chris McNeill, director of Essential Economics Pty Ltd.
    File size: 14 MB Downloads: 96
  • pdf Prologue Evidence File No/16
    It is clear from this Echo Tourism Venture (Appraisal by Cleaner Production Australia) that there was merit in my original Cape Bridgewater Holiday Camp tourism venture.
    File size: 2 MB Downloads: 72
  • pdf Prologue Evidence File No/17
    This memorandum of 30 March 1995, provided to Warwick Smith, Telecommunications Industry Ombudsman (administrator to my arbitration), by Susan Hodgkinson of FHCA. We document the relevance of this attachment again because the bullets on page two and three of this memorandum discuss Telstra’s defence of my claim, and do not, in any way, coincide with AUSTEL’s adverse findings regarding my matters (see Open Letter File No/4, File No/5, File No/6 and File No/7)
    File size: 4 MB Downloads: 83
  • pdf Prologue Evidence File No/18
    It is also reasonable to conclude AUSTEL representatives NEVER released their adverse findings on my matters to the Department of Communications Information, Technology and the Arts (DCITA), otherwise that information would have been finally provided to me under FOI from the DCITA. As ACMA has been the only government agency to release the more adverse findings against Telstra on my matters under my FOI requests, one can only conclude the DCITA never received a copy of those adverse findings as they were legislated to under Section 342 of the Act.
    File size: 7 MB Downloads: 79
  • pdf Prologue Evidence File No/19-A to 19-B
    Page 38 of the award prepared by the arbitrator, Dr Gordon Hughes, resulting from my Telstra-related arbitration.
    File size: 637 KB Downloads: 91
  • pdf Prologue Evidence File No 20
    File size: 801 KB Downloads: 84
  • pdf Prologue Evidence File No 21
    The costs just continue to rise and rise and still all my claim documents have not been addressed through arbitration, particularly Short duration and incorrectly charged calls and recorded voice announcement faults. Who pays for this continuing saga, which is supposed to have been settled, even to this day? Why are the authorities so reluctant to investigate my claims? After all, if I am lying it would be so easy to prove".
    File size: 4 MB Downloads: 89
  • pdf Prologue Evidence File No 22-A to 22-D
    File size: 3 MB Downloads: 121
  • pdf Prologue Evidence File No 23
    File size: 5 MB Downloads: 101
  • pdf Prologue Evidence File No 24 to 39
    File size: 9 MB Downloads: 34
  • pdf Prologue Evidence File No 40 to 55-C
    File size: 16 MB Downloads: 47
  • pdf Prologue Evidence File No 56
    File size: 2 MB Downloads: 41
  • pdf Prologue Evidence File 1-A to 1-C
    File size: 11 MB Downloads: 20