Arbitrator / Part Two

PLEASE NOTE: Arbitrator / Part Two was created on 14 March 2015 and is a work in progress. Last edited July 2019

To Hell and Back 

continuation of Chapter Five from Absentjustice / Part One

Ambit of the Victorian Commercial Arbitration Act 1984

While the ambit of the Victorian Commercial Arbitration Act 1984 issue appears on the Senate Page, it is important to raise it here too, in our Arbitration Page.

24 January 1994: This letter to the arbitrator from the TIO Special Counsel, provides further proof that the first four arbitrations were to be conducted according to the “ambit of the Commercial Arbitration Act 1984”. This particular representative from the TIO Special Counsel was, in fact, also the President of the Institute of Arbitrators Australia when he advised the arbitrator:

“We discussed whether or not the Procedure should come within the ambit of the Victorian Commercial Arbitration Act 1984. We decided that it should.”

On page two, he adds:

“On balance, it was decided that it would be preferable to have the Procedure operating under the ambit of the Commercial Arbitration Act.

You will note that I have amended the Procedure so that it is clear that you are conducting four separate arbitrations and will hand down four separate awards although you may combine some aspects of the four hearings.” See Arbitrator File No/105)

The arbitrator failed to make any reference in my final award to my arbitration procedure being conducted entirely outside of the agreed ambit of the Commercial Arbitration Act 1984. He did not warn me, before I signed the arbitration agreement, that my arbitration would be conducted in this manner.

I initially hesitated to use this graphic because it seemed too dramatic and even overstated, with a ghoulish creature pointing at a manuscript. However, it fits the story of the COT arbitrations, because so much of this story is tainted with evil from the very onset. For the arbitrator and the TIO to allow our arbitrations to continue after discovering that they were being conducted outside the agreed and accepted ambit of the Victorian (Australia) Commercial Arbitration Act, was corrupt.

With iniquity, this decision has stood without investigation for 18 years despite the TIO confirming to both Senate Estimates committee hearing and the relevant communications minister’s office, on 26 September 1997, that the arbitrator really did not have any control over the process because it was “conducted entirely outside the ambit of the arbitration procedures”. (See Arbitrator File No/71)

The arbitrator, after conducting our arbitrations in such an unethical manner, wrote to the TIO on 12 May 1995 (the year after he had used it) to declare that the COT arbitration agreement was not a credible document for the basis for my arbitration (see Open Letter File No 55-A). This letter, condemning the agreement, was also deliberately concealed from me during my designated appeal period. I was never given an amended document during my arbitration, either by the arbitrator or the administrator, who was then the TIO.

The confidentiality clauses in my arbitration agreement, which appear to have been used since 22 June 1995 to stop a transparent investigation into the conduct of my arbitration, became null and void as soon as the arbitrator conducted my arbitration entirely outside the agreed ambit of the Victorian Commercial Arbitration Act 1984.

17 February 1994: At this official arbitration meeting, Graham Schorer (COT spokesperson) asked the TIO and the arbitrator to assure us that the agreement the COT claimants were being pressured to sign was not Telstra’s proposed rules of arbitration. Telstra’s own transcripts of this meeting (see Arbitrator File No/103) confirm that both the arbitrator and the TIO’s Special Counsel replied: “… they had not received this document and had not read it and that it was irrelevant”However, Aritrator File No/104 confirms that the Arbitrator was provided with a document called Telstra Corporation Limited – ‘Fast Track’ Proposed Rules of Arbitration before 18 January 1994, one month before this meeting.

In fact, Arbitrator File No/105, dated 24 January 1994, confirms that both the arbitrator and a representative of the TIO’s Special Counsel had read Telstra’s proposed rules. And they actually used that document as the basis for the final arbitration agreement; the version presented to the first four COTs for signing the very next month. This was the version that we were assured had been drafted totally independently. This is clear evidence that during the first official arbitration meeting, before the COTs had signed their arbitration agreements and even before he had been officially appointed, the arbitrator was already misleading and deceiving the claimants, and all other interested parties.

This deception, in relation to which version of the agreement we had signed, was maintained throughout the various COT arbitrations. This agreement was NOT independently drafted by the Special Counsel, but by Telstra – the defendants.

This letter, dated 23 February 1994, from Telstra’s arbitration liaison officer to the pending arbitrator notes:

“Telecom is of the view that Special Counsel and the Resource Unit should be accountable for any negligence on their part in relation to the arbitration process, given that these parties are acting in their capacity as experts. Therefore, this clause should not be amended so as to include an exclusion from liability for Special Counsel and the Resource Unit”. (See Arbitrator File No/3)

Chapter Six

Clandestine meeting

Ex parte is a Latin phrase meaning on one side only or by or for one party. An ex parte communication occurs when a party to a case, or involved with a party, talks, writes or otherwise communicates directly with the judge about issues in the case without the other parties’ knowledge. Under the Judicial Code of Conduct, judges may not permit or consider ex-parte communications in deciding a case unless expressly allowed by law. This helps judges decide cases fairly since their decisions are based only on the evidence and arguments presented to the court, and the applicable law. It also preserves trust in the legal and court system.

Points 4 and 5

The 22 March 1994 transcripts of a clandestine gathering, where the COT cases were not represented (see Open letter File No 54-A), shows Telstra’s Mr Chalmers, the author of the minutes, has left out points 4 and 5. Point 6 follows point 3. Where are points 4 and 5?

In attendance at this clandestine meeting were Telstra’s arbitration liaison officer, Steve Black; Telstra’s general counsel, David Krasnostein; Telstra’s lawyer from Freehill Hollingdale & Page, Simon Chalmers; TIO special counsel, Peter Bartlett; arbitrator, Gordon Hughes; and TIO Warwick Smith with his secretary Jenny Henright. Except Jenny Henright, all were lawyers and therefore all knew this was an illegal gathering. What was so important about this meeting that only the arbitrator and defence attended it?

The missing discussion material or questions raised at points 4 and 5 may well be why the parties present agreed to Telstra lawyers drafting the agreement, instead of the independent arbitration agreement the government and claimants were assured would be used. It could also be where Telstra and arbitrator Dr Hughes agreed Telstra would allow the arbitration resource unit first access to all arbitration procedural material (see Arbitrator Part Two Chapter Seven). This allowed the arbitration resource unit to decide which documents Dr Hughes and the claimants would be allowed to see, and which would be discarded. Telstra’s Steve Black wrote to Warwick Smith on 11 July 1994 acknowledging the resource unit would be allowed to vet which documents Dr Hughes would see and which he would not (see Prologue Evidence File No 7). The arbitration resource unit, Ferrier Hodgson Corporate Advisory, admitted, in writing, to Dr Hughes that they concealed at least four relevant billing claim documents from the arbitration process (see Open letter File No/45-H). This is discussed more fully below.

Points 4 and 5 in the minutes of this clandestine meeting could be linked to the arbitrator and his arbitration resource unit allowing for the more adverse findings against Telstra to be covertly addressed outside the legal arena of the COT arbitration process. If the addressing of non-addressed arbitration issues had nothing to do with points 4 and 5, then what was so detrimental to the arbitration process that these points were excluded from these minutes? What information was exposed in those two points that Telstra’s lawyers thought it necessary to hide, in case this document, Open letter File No 54-A, ever surfaced, as it has?

Why weren’t the COT cases or their lawyers advised of this meeting? We will never know what was concealed from the COT cases during this clandestine gathering. Dr Gordon Hughes should have never allowed this secret meeting to take place without the COT cases being represented. Most, if not all, Western democracies would expect both the defendants and claimants – and their lawyers – to be present in the judge’s chambers or arbitrator’s office.

This clandestine meeting also covered how to protect – to exonerate – the arbitrator’s consultants from incurring any liability for negligence or being sued. Of course, this was to the detriment to the COTs and our legal right to a have recourse over the arbitration consultants if the resource unit was negligent in their duties. The arbitration resource unit was negligent during my own arbitration process and I was unable to hold them to account for those actions, due to those clauses being removed from my arbitration agreement.

This very important exhibit Open letter File No 54-A details a meeting attended by Telstra’s general counsel, the TIO Special Counsel, the arbitrator, the TIO and the TIO secretary. The meeting discussed various changes to the arbitration agreement although no COT claimants or their representatives were advised of this important meeting and/or proposed changes to the agreement. Telstra’s transcript of this meeting (see File No 54-A notes at point six that:

“Peter Bartlet [TIO Special Counsel], stated that he was unhappy that Telecom did not appear prepared to allow his firm an exclusion from liability.”

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

“Steve Black [Telstra] said that he thought the liability caps proposed by Telecom in the amended rules were already reasonable.”

The TIO has, to date, declined to explain what circumstances occurred to change this. Who pressured the TIO to allow the advisors (see below) to be exonerated from all liability in relation to my arbitration? Why would the TIO Special Counsel be so unhappy that Telecom did not appear prepared to allow his firm and exclusion from liability”.

It is therefore quite clear that the arbitrator’s main concern was always with the welfare of Ferrier Hodgson and DMR (the arbitration resource unit) rather than with the claimants, who had, by then, been battling Telstra for years. I did not see this letter until 2002, which was well outside the Statute of Limitations, when it was finally sent to me, along with other arbitration material I had continued to ask the TIO and Telstra to send to me so I could properly appeal Dr Hughes’ award.

Telstra’s FOI folio number A59256/7 (see Open letter File No 54-B) which is recorded on this letter dated 12 April 1994, from Dr Hughes to the TIO’s special counsel, indicates that Telstra received their copy of that letter either before or during the arbitration process and that simply shows, once again, that even before we signed the agreement the arbitrator and Telstra (the defence) had already set up a system that would allow them to work together to achieve their aims, right throughout the arbitration process, regardless of how that would affect the claimants’ cases.  This letter clearly discusses the same exoneration issues that Dr Hughes and the TIO’s Special Counsel tried to have included in the arbitration agreement during the 22 March 1994 clandestine arbitration meeting that is discussed above (see Open letter File No 54)

Open letter File No 54-A to 54-B, which is further discussed below, also shows that, even before Dr Hughes’ involvement in the deliberate deception that is discussed in his 12 April 1994 letter, he was already colluding with the defendants (Telstra) and the TIO so that he could use Telstra’s version of the arbitration agreement instead of an independently drafted version. This is further proof of the ongoing, deceitful collusion that existed between Telstra, the TIO, and the Arbitrator, and a clear indication that this collusion began well before the arbitration agreement was executed. So why are Dr Hughes, Telstra. and the TIO continuing to tell the current government that the confidentiality clause in the agreement forbids discussion about our arbitrations when all this deceit and collusion clearly began well before we signed the agreement and therefore well before the confidentiality clause came into play at all?

It is clear from the first two lines of Dr Hughes’ last statement on page-two in this that he knew the arbitration agreement as it stood was the agreement that had been finally agreed to as his statement shows  (see Open letter File No 54-B) which notes: “…I appreciate that one claimant has already executed the agreement in its current form. The others will no doubt be pressed to do likewise over the next few days”.  Maureen Gillan was the claimant referred to as having already ‘executed the agreement in its current form’Maureen had signed the agreement four days previous, on 8 April 1994. Why was it so important to remove the $250,000.00 liability caps from the Arbitration Agreement in my case, and those of Ann Garms and Graham Schorer? Why was this such a big deal when the $250,000.00 liability caps were going to be replaced on the new Arbitration Agreement for the other twelve COT Cases as Chapter Seven below shows?

Why did it not occur to either the TIO or the Arbitrator that, once the directions regarding liability were removed; this would allow complacency to creep into the arbitration process? This is exactly what our absentjustice.com pages show did

Removal of Liability Clauses

0803_scrooge[1]

Part of the story begins with the first (unaltered) version of the agreement, which had already been signed by one COT member, Maureen Gillan, a couple of weeks earlier, on 8 April 1994.

On 19 April 1994, a date confirmed by the fax footprint, two copies of the original version were faxed from the arbitrator’s office to two separate lawyers. In the agreement presented for the COT claimants to sign two days later, on 21 April 1994, clauses 25 and 26 had been removed and clause 24 had been amended with the $250,000 liability caps removed. This exempted the two resource units from all liability. There are some interesting details related to what happened the day that the three remaining claimants signed what we later learned was a secretly altered agreement.

This is a three-page brief to Mr A H Goldberg, Q.C., from William Hunt, on behalf of Graham Schorer. According to a hand-written note in the top right-hand corner, Mr Goldberg’s office was contacted by Hunt Solicitors at 2.43 pm

It is clear from the fax imprint on these two documents from Dr Hughes’ secretary, Caroline Friend, to Mr Goldberg and William Hunt, that they were faxed between 1:20 and 2:00 pm on 19th April 1994.  Each fax included an unsigned copy of the Arbitration Agreement (Graham Schorer).  Ms Friend sent the faxes from her office after Graham Schorer asked his solicitor, William Hunt, for advice in relation to signing the Arbitration Agreement that was drawn up by Frank Shelton of Minter Ellison  (see  Open letter File No 54-C) Mr Hunt contacted Dr Hughes’ office and asked Ms Friend to send one copy to Mr Goldberg and one to Mr Hunt, for assessment.  On 21st April, however, before Graham received any information from Mr Goldberg or Mr Hunt, Graham and Alan met Peter Bartlett (the TIO’s Legal Counsel) in the Minter Ellison offices.  Mr Bartlett informed them the TIO would withdraw from administering the already-signed Fast Track Settlement Proposal if Graham and Alan did not sign the Arbitration Agreement by close of business that day.  Had Peter Bartlett provided Graham and Alan with a copy of the altered agreement earlier in the day, and allowed them to take it away for discussion, a comparison between the altered version and the version faxed to Mr Goldberg and Mr Hunt would have uncovered the secret alterations to the agreement Graham and Alan were being pressured to sign.  This was not the agreement that Caroline Friend faxed to Mr Goldberg and Mr Hunt 36 hours earlier.

We now understand our signatures on this agreement almost sealed our fate, mainly because the clauses had been altered, effectively exonerating both the resource unit and the TIO-appointed Special Counsel from any liability or omission associated with their involvement in the arbitration process. This was to prevent us suing them, if things went badly wrong.

I had been medically diagnosed with severe anxiety and was seeing a local psychologist. Everyone at that meeting, including my claim advisor Barry O’Sullivan, was aware of my diagnosis. I wasn’t the only one who was worried about signing that day; although Ann Garms and Graham Schorer, the other two claimants, agreed that we should sign the agreement, they also expressed reluctance because of the lack of time we had been given to review the document before signing it.

As a point of interest, in May 1994, when Senator O’Sullivan’s partner was helping me with my claim, he warned me that he believed I was under some sort of surveillance, which is something I already suspected. My psychologist had told me she was visited by someone who claimed to know to me and began asking questions about my mental state. I am most grateful to that psychologist, Kaye —– because she made it perfectly clear that the only way anyone could obtain that information was in my presence. Senators Richard Alston and Jocelyn Newman, and a number of other senators, are aware I was not the only COT member suffering from anxiety as a direct result of what we were being put through.

What is perhaps the most disturbing point about the alterations to the agreement (aside from the fact that they appear to have been made without the TIO’s authorisation) is the liability caps that were removed from the 21 April 1994 version, were replaced two months later, on 22 June 1994, for the next version of the agreement. This agreement would also be administered by the TIO, for all remaining 12 COT claimants, and for other similar agreements in future TIO-administered arbitrations. This confirms one very important matter: the TIO’s office was fully aware that it was undemocratic to have allowed the three COT arbitrations to be conducted without a proper safeguard for the claimants.

The Removal of the liability clauses  

The three clauses on page 12 of the version of the agreement that was received from Dr Hughes’ secretary on 19 April 1994, which is also the version of the agreement that the first of the four claimants, Maureen Gillan signed on 8 April 1994. It is clear the clauses in this agreement did NOT exonerate either the TIO Special Counsel or the two Resource Units Ferrier Hodgson and DMR Group Australia Pty Ltd which Warwick Smith clearly stated on 22 March 1994: (see Open letter File No 54-A)

 “…he thought it was reasonable for the advisors to incur some liability, and that the only matter left to be negotiated on this issue was the quantum of the liability caps”.

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

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

[Clause 26] …The liability of DMR Group Australia Pty Ltd and the directors and employees of DMR Group Australia Pty Ltd for any act or omission in connection with any arbitration conducted under these rules, other than in relation to a breach of their confidentiality obligations) shall be limited to $250,000 jointly (see Open letter File No 54-C)

In the agreement that was presented to the COT claimants to sign, clauses 25 and 26 had been removed and Clause 24 had been amended (see Open letter File No 54-D) The final version of Clause 24 reads (in part):

“Neither the Administrator, the Arbitrator, the Special Counsel, a partner or employee of the legal firm of which the Special Counsel is a partner, a member of the Resources Unit, Ferrier Hodgson or a partner or employee of Ferrier Hodgson, DMR Group Australia Pty. Ltd. shall be liable to any party”.

This resulted in Clause 24 having quite a different meaning to that presented by the original three separate clauses (24, 25 and 26). It protected Peter Bartlett, Minter Ellison and the two Resource Units from any risk of being sued for misconduct associated with their role as advisors to the process, thereby providing no incentive for them to ensure that the COT claimants were involved in a fair and just process.

According to records Alan has recently acquired however, Alan and the other two claimants present that day, i.e. Ann Garms and Graham, although apparently reluctant to sign the altered agreement, they did, and in doing so, those altered clauses effectively exonerated both Resource Unit’s and the TIO-appointed Special Counsel from any liability or omission associated with their involvement in the arbitration process.

Both Robin Davey (AUSTEL’s Chairman) and Warwick Smith (the Telecommunication Industry Ombudsman and Administrator of the COT arbitrations) are aware that, during the six months between 23 November 1993, when Alan signed the Fast Track Settlement Proposal (FTSP) and 21 April 1994, when he signed the Fast Track Arbitration Procedure (FTAP) Alan was suffering from a diagnosed, extreme stress disorder which has led to Alan believing he signed the same version of the agreement that the first of the four claimants, Maureen Gillan, had signed, which was the same version that he and Graham viewed on the day it was faxed to their lawyers on 19 April 1994 (see Open letter File No 54-C)

A strange but welcome phone call

Towards the end of March 1994, I got an extraordinary phone call. Frank Blount, Telstra’s CEO, their top man, rang me. He wanted to know what I thought was the underlying cause of my telephone problems. Presumably, he had taken it upon himself to find the cause of my complaints. He showed understanding, respect and courtesy. I told him I believed that both Portland and Cape Bridgewater exchanges had been suffering from congestion for years. He gave me his word that he would investigate my theory, and it turned out he was a man of his word. An internal Telstra email dated 6 April 1994 shows the result of his influence:

Telephone%20image[1]

“Following previous lost call analysis of the Z route between Warrnambool node and Portland AXE–R (PORX) it was decided to increment this route from 30 to 60 CCTS … Could you please ‘fast track’ this project due to the sensitivity of the current COT case at Cape Bridgewater (off PORX)”. Arbitrator File No/83

Another, dated 7 April 1994, followed with:

“At 4.55 pm on 6/4/94 I was informed by Network Ops that the route into the Portland exchange would be increased by 30%. The work was to be completed prior to midnight that day. This should alleviate any problems Mr Smith or anyone else in the area has been experiencing with congestion into the area for some time”. (See Arbitrator File No/83)

In fact, an extra 30 circuits (from 30 to 60 CCTS) represented a 100% increase in the phone route into Portland exchange, not 30%. Regardless, the increase in lines was appreciated. I also remember discussing with Telstra’s CEO an internal Telstra document dated 17 June 1993 from the general manager of the commercial division to one of her staff noting:

“I refer to our telephone conversations regarding the material contained in [Telstra employee, name withheld]’ brief case.

“Please find attached a letter from Austel requesting information regarding that incident. Whilst I can respond to the details regarding the information provided to him at the time of settlement I cannot comment on the variation between what Mr Smith was told and the contents of the Network investigation files.” (See Arbitrator File No/111)

This document suggests the author was not sure whether she had provided me with the truth or not when she had conducted my earlier 11 December 1992 settlement. We know that when AUSTEL asked Telstra to supply a copy of ALL of the briefcase material left at my premises, it appears as though Telstra concealed sensitive material from the government regulator.(See Arbitrator File No 61 and Arbitrator File No 62)

In March 1994, Graham Schorer (COT spokesperson) and another COT member suffered break-ins and lost business-related documents. That made us all much more vigilant. I found no evidence of a break-in, but I did notice two diaries covering the period 1987 to 1989 were missing. I decided to remove my official business diaries from my office, and from that time on, I transferred information to them on a weekly basis from my wall calendar and unofficial notebooks. (See also Hacking – Julian Assange File No/3. The following statements are taken from Graham Schorer’s Statutory Declaration re his break-in.

8[1]

“In early February 1994, our premises were broken into and all computer cables including the power cables were severed, as well as all power connections to the main server which was in a specially constructed room. The perpetrators forced entry into the building in what the police described as a “ram raid”, where something similar to pneumatic tyre attached to the front of a vehicle was used to hit the front door with enough force to dislodge the steel frame attached to the brick work.

Part of the microfiche copier and viewer was stolen, as well as the PC on my desk which contained all of my COT information and correspondence between regulators, politicians, etc. Also stolen was a book that contained a catalogue of computer file numbers against their description.

The same day I spoke to Garry Dawson from Dawson Weed and Pest Control (another COT Case) on the phone, who told me that his business premises in Sunshine had been broken into just after midnight and burgled. The only thing stolen was the Dictaphone tape which held a recording he had made of a meeting between him and two Telstra executives on the previous day”. (Arbitrator File No/84)

Two months after the above break-in, my arbitration claim advisor Garry Ellicott (ex-national crime investigator and ex-detective sergeant of the Queensland police) visited and we spent five nights trying to decipher the pile of Telstra discovery documents. It was then that I discovered further losses: exercise books in which I kept official booking records and a number of bank statements and my bank pay-in books for 1992/93. I cannot account for these losses. It is possible they were also missing in March, and I simply didn’t notice their absence. Without these records, I was hard-pressed to produce full and correct financial statements for my forensic accountant, Derek Ryan, and was reduced to scavenging information from wall calendars and other unofficial sources. When Garry returned to Queensland, I got him to take my remaining work diaries with him for safe-keeping.

Hacking – Julian Assange

Chapters Two to Seven and Chapter Nine in our Hacking Julian Assange page give sound reasons as to why I had doubts surrounding the security of my business premises.

I had good reason to be nervous and on edge after having lost important documents from my business. This period of doubt came after Telstra threatened me and the Australian Federal Police confirmed Telstra had, indeed, been listening into my telephone conversations without my knowledge or consent. It was also during this time that hackers (who I now believe included Julian Assange) contacted Graham Schorer, after we had signed our arbitration agreements on 21 April 1994.

Graham stated that the hackers had advised him that the Government had been working, together with Telstra, to cover up the systemic network faults associated with our businesses and that it was important that we have this information.  I remember this statement particularly clearly because it got me wondering: was it possible that the Australian Government could really be involved in protecting Telstra, while Telstra was actually the defendant in an arbitration with Australian citizens – a legal process that was allegedly being conducted according to the rule of law?  If we went ahead and accepted thee emails and faxes that the hackers claimed showed that this was really happening, then surely that evidence would be enough to prove our claims and so win our cases, even before we had completed our submissions!  This was such a big issue.  But… after what had, back then, been recent events, and with a heightened vigilance, I had a terrible gut-feeling that Telstra and the Government might be setting us up so they could then claim that we had acquired the evidence illegally, and that could possibly be used so that the Government could call a halt to our arbitrations and so stop us in our tracks.

My thoughts were all over the place.  After having lost the diaries that I desperately needed to assist me in my claim; after the burglary at Graham’s business; and with the loss of so many COT-related documents, I was becoming more and more nervous. I was seriously afraid that we were deliberately being lured into this process, i.e. accessing documents illegally, and, if I was right but we accepted the hackers’ offer, then we could kiss our arbitrations goodbye.  I suspect that it was my fear alone that eventually convinced Graham to decide against accepting the documents, even though we were both aware that they could, possibly, be a really valuable support for our claims.  Years later, as the following link shows, the media claimed that Julian Assange had helped the Victorian police in relation to a number of child abuse cases (see https://en.wikipedia.org/wiki/Julian_Assange) and it was then that we realised what we had missed out on. It seemed that a very young Julian Assange was prepared to fight in support of natural justice for ordinary citizens.  If only we had known that when Graham received the email from Assange and his team.

Sadly, as our Manipulating the Regulator page shows, the government communications regulator AUSTEL, in April 1994, did conceal the truth about the seriousness of the network problems affecting my case and that of Graham Schorer (see AUSTEL’s Adverse Findings, 20111025143553046 and 20130627133948062.). So, the hackers were right all along.

The fallout from all this became evident some weeks after my arbitration hearing in October 1994 when the arbitrator asked for my annual diaries for assessment. During this hearing, I begged to be allowed to submit these fault-complaint notebooks (as the transcripts of this meeting show). I explained how, and why, I had to copy fault-complaint records into the diaries from exercise books and affirmed that nonetheless, my chronology of fault events was true and correct. But Telstra objected and the arbitrator asserted without viewing them, that they were irrelevant. Garry sent the diaries directly to the arbitrator’s office. Two months later, in February 1995, Telstra advised the arbitrator that they had found discrepancies in my diaries, claiming I had added entries after the date that the calls and incidences recorded had actually occurred.

McKenzie-Gude_Kupferberg[1]

Although Telstra submitted their defence of my claims on 12 December 1994, they waited until February 1995 before officially advising the arbitrator, that their forensic document researcher had found discrepancies in those diaries, claiming that I had added entries sometime after the date that the calls and incidences recorded had actually occurred. As stated above, I do not deny this since I copied the fault complaint records into the diaries directly from my exercise books, so that the diaries could be kept off-site, away from my office. This does not change the fact that the desktop exercise books’ chronology of fault events, as well as who had telephoned, when and what telephone conversations were about, were true and correct. Nevertheless, when it came to his summary in relation to these diaries, the arbitrator stated in his award:

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

I contend that if the arbitrator had allowed these exercise books as evidence and had provided them to Telstra’s forensic documents examiner, he would have had a clearer understanding of what the exercise books really were and would have realised there were no attempts at deception.

Prior to the 21 April 1994 signing of the arbitration agreement, and before the final COT report was provided to the communications minister on 13 April 1994, I and some other COT Cases attended a two-day, lock-up, confidential viewing of the draft COT Cases report at AUSTEL’s headquarters in Queens Road, Melbourne.

Rembrandt_Harmensz._van_Rijn_038[1]

At this meeting, AUSTEL’s chairman Robin Davey reminded Graham Schorer and I of commitments stated in a letter (dated 23 September 1992) from Telecom’s commercial and consumer managing director:

‘The key problem is that discussion on possible settlement cannot proceed until the reported faults are positively identified and the performance of your members’ services is agreed to be normal. As I explained at our meeting, we cannot move to settlement discussions or arbitration while we are unable to identify faults which are affecting these services’ …and…’Until we have an understanding of these continuing and possible unique faults, we have no basis for negotiation’ (Arbitrator File No/78 AUSTEL COT Case Report, point 5.7)

I cannot recall now how many COTs attended this lock-up AUSTEL meeting, but I do clearly remember there were at least seven of us who were quite vocal. I also recollect very clearly what I spoke about and which documents we were told we could not take out of the building. One thing was very obvious from all the security arrangements around the reading of the draft of AUSTEL’s COT Cases report: the government regulator did not want the public to know what the COT and AUSTEL investigations had uncovered in relation to the many systemic faults within Telstra’s copper wire and fibre network.

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

“The final report was April – I can’t remember the date in April, but April 1994. The draft report was produced in March 1994 and Telecom received their copy of that at the time.” (See Destruction of Evidence / Perverting The Course of Justice/Falsification Reports File No/4)

While this statement by one of AUSTEL’s representatives makes clear that Telstra received a copy of AUSTEL’s draft findings, NONE of the information in this report, which enabled the government communications regulator (AUSTEL) to arrive at their adverse findings against the Telstra Corporation, was ever made available to the COT claimants during their arbitrations. The following letters, dated 8 and 9 April 1994, to AUSTEL’s chairman from Telstra’s group general manager, suggests that AUSTEL was far from truly independent, but rather could be convinced to alter their official findings in their COT reports, just as Telstra has requested in many of the points in this first letter. For example, Telstra writes:

“The Report, when commenting on the number of customers with Cot-type problems, refers to a research study undertaken by Telecom at Austel’s request.  The Report extrapolates from those results and infers that the number of customers so affected could be as high as 120,000.In relation to point 4, you have agreed to withdraw the reference in the Report to the potential existence of 120,000 COT-type customers and replace it with a reference to the potential existence of “some hundreds” of COT-type customers” (See Open Letter File No/11, page 3, point 4)

The following day, Telstra again writes to AUSTEL stating:

“the number of Telecom customers experiencing COT type service difficulties and faults is substantially higher than Telecom’s original estimate of 50″. (Public Government Report)

The fact that Telstra (the defendants) were able to pressure the government regulator to change their original findings in the formal 13 April 1994 AUSTEL report is deeply disturbing. The 120,000 other customers – ordinary Australian citizens – who were experiencing COT-type problems are not referred to in the Department of Communications Information Technology and the Arts (DCITA) report (see Senate Evidence File No 28), although this was used by them to determine the validity of the COT claims

Telstra signed this on 18 November 1993 and the four COT cases (me included) on 23 November 1993. Various commonwealth ombudsman letters sent to Telstra on behalf of the four COT cases are attached to various absentjustice.com download links, and they clearly show we were disadvantaged because of our trust.

Some readers may be wary of accepting all I write here as truth, as I am aware that some of it seems so outlandish. Evidential documents and testimonials support 95% of what I state on absentjustice.com. However, the reader should understand that not all things can be proven, including my verbal discussions with both the TIO and TIO Special Counsel who, up and until 21 April 1993, administered the above Fast Track Settlement Proposal commercial assessment proposal

9781418544171-l[1]

My statement, that 5% of this saga cannot be proved, revolves around those discussions. As God is my judge (not said lightly at age 71) I stated clearly and often to the TIO and TIO Special Counsel during the Fast Track Settlement Proposal prior to signing the Fast Track Arbitration Procedure arbitration on 21 April, 1994: How can I be forced into this bloody arbitration process when Telstra has not provided me with all of my promised FOI documents and/or fixed the ongoing telephone problems that are still destroying my business?

I was not aware, at the time, of AUSTEL’s secret findings in their 3 March 1994 investigation into my complaints – where the final statements in the 69-page report (see Open Letter File No/4 File No/5 File No/6 File No/7, include:

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

In view of the continuing nature of the fault reports and the level of testing undertaken by Telecom doubts are raised on the capability of the testing regime to locate the causes of faults being reported”. (See File No/7,)

In other words, AUSTEL, and perhaps Telstra, suspected that Telstra’s future arbitration Service Verification Testing of my telephone service lines would NOT locate the “causes of faults being reported” either during or after my 1994/95 arbitration. AUSTEL’s chairman, the TIO and TIO Special Counsel, between November 1993 and mid-April 1994, made it quite clear the technical consultants appointed to the process (under the direction of the assessor/arbitrator) would investigate all ongoing problems. This process should ensure that Telstra rectified all the faults before a finding could be handed down. The many exhibits in our absentjustice.com download attachments show that the arbitrator, the TIO and the TIO-appointed resource unit had a different agenda to the arbitration agreement. We, the COT Cases, were forced to proceed with without the necessary information we needed to fully support our claims.

In my case, if Telstra had not deliberately withheld important network documents and/or provided them too late, I could have clearly impressed the arbitrator to hand down an interim award before he left for Greece, but he could NOT publish the final version of that award until the arbitration technical consultants properly determined the reasons for the lines continually locking up after calls terminated.

I didn’t receive AUSTEL’s covert 69-page report from the Australian Communications & Media Authority (ACMA) until it was provided to me under FOI on 27 November 2007. This was twelve years after the TIO issued a media release (12 May 1995) publically declaring that I had received natural justice (see Arbitrator File No/79). That statement was made more than two hours after the TIO received a letter (also dated 12 May 1995) from the arbitrator advising that the arbitrator’s findings in relation to my case had been based on an agreement that was not credible and needed revising for the following claimants. This TIO was sworn in as a minister in the new Australian Liberal Coalition Government, 10 months later, with a front bench seat and a portfolio to match.

Returning to the removal of liability from the resource unit and special counsel, despite advice by the official administrator to the arbitration that they had to incur some liability (see Open letter File No 54-A to 54-F). Why did the arbitrator allow the arbitration agreement to be altered to suit the resource unit and special counsel?

A_Pecoud_bw-5[1]

This leads us to examine the following events: First we have the 22nd March 1994 covert, pre-arbitration meeting that was attended by these three characters (the TIO, the TIO’s Special Counsel and the arbitrator), so they could discuss the arbitration agreement with Telstra’s Arbitration Liaison Officer and Telstra’s Legal Counsel. They met, without advising the claimants about that meeting, with the defendants and their lawyers, and then we also have those same three gentlemen, all qualified lawyers, agreeing to allow the Resource Unit and the TIO’s Special Counsel to be completely exonerated from any liability at all, in connection with the arbitrations.

What sort of collusion was going on behind closed doors unbeknown to the claimants, and how many other clandestine agreements were made without our knowledge? As the administrator to our arbitration, the TIO should have ensured that before any party signed the arbitration agreement, both the claimants and the defendants were provided with the amended form to acknowledge and sign that they agreed to the changes made. What really prompted these three parties, the TIO, the TIO Special Counsel and the arbitrator, to ensure the removal of these liability clauses? In the government communications regulator’s AUSTEL COT Cases Reportthat was provided to Communications Minister, the Hon Michael Lee MP (see point 5.67, Arbitrator File No/89), it is clearly stated that:

“the arbitrator is to be a person of clear impartiality, independence and integrity with expertise in relevant legal, technical and accounting issues or access to them and with experience in commercial assessment and arbitration”

 That fact alone should have been enough for the TIO and the government communications regulator to declare our arbitrations null and void. That my arbitrator was NOT of clear impartiality or independentshould also have been enough to declare the process a grave miscarriage of justice. This arbitrator, in fact, had been Graham Schorer’s business AND legal advisor for a number of years, as well as an official legal advisor for Mr Schorer’s earlier claim against Telstra in the Federal Court, in relation to the very same telephone fault issues that the arbitrator was now assessing, for a second time, as the impartial and independent arbitrator. See this conflict of interest issue further on in our story.I am not implying that the arbitrator had no relevant legal, technical or accounting ability, or access to or experience in commercial assessment. However, we know that he was not experienced in arbitration at that time, despite the government regulator officially advising the minister and the public that he had to be in order to arbitrate complex matters like the COT arbitrations. It was therefore a risk for all concerned to appoint an arbitrator who was NOT properly qualified (graded), and it is clear now that both the government communications regulator and the President of the Institute of Arbitrators Australia were aware of this fact.

11 April 1994: This letter, from me to Telstra’s CEO (later returned to me by the Australian Federal Police [AFP], marked Protectedstates:

“Would you please instruct the management team within Telstra that can be respond to this request. How does a conversation I had with a former Prime Minister Mr Malcolm Fraser, end up in s Telecom document as common knowledge. I spoke with Mr Fraser yesterday of this matter. He has made it very clear he did not talk to anyone within Telecom about our conversation in the month of April last year”. (See also Main Evidence File No 31)

AFP transcripts (see Australian Federal Police Investigation File No/1) show this particular issue was also discussed during my second interview with the AFP on 26 September 1994. Telstra was unable to give either the AFP or I a feasible answer regarding how they learned of this phone conversation with Mr Fraser. Chapter two in Hacking – Julian Assange provides further details on the extent of the privacy breaches.

14 April 1994: A letter (protected under the AFP Act) from Telstra’s arbitration liaison officer to the detective superintendent of the AFP states that Telstra only voice-monitored my telephone service from June to August 1993.

It records the police asking me about a hand-written reference to a bus company Telstra appeared to have added in the top right corner of a letter I had written previously, on 10 September 1992, to Telstra, although the name was not mentioned in that letter (now stamped AFP protected). It is true that I was tendering to a number of bus companies during 1992, including Nuline Bus Services, Centre Road, Bentleigh; Moonee Valley Bus Lines, Tullamarine; Warrnambool Bus Lines and O’Meara’s (the name hand-written in the corner of this letter). I had contacted all four companies for the same tender in an attempt to use one of their services to bring people from Melbourne to Cape Bridgewater, but since O’Meara’s was not mentioned anywhere in the letter, it had been added. It would seem that Telstra was actually voice monitoring my phone calls or intercepting my faxes as early as September 1992.

Was it during this period that my two diaries just vanished from my office? An AFP officer who visited my business in February commented with words to the effect, that things are not what they should be with the Telstra Corporation.

Returning to the removal of liability from the resource unit and special counsel, despite advice by the official administrator to the arbitration that they had to incur some liability (see Open letter File No 54-A to 54-F). Why did the arbitrator allow the arbitration agreement to be altered to suit the resource unit and special counsel?

This leads us to examine the following events: First we have the 22nd March 1994 covert, pre-arbitration meeting that was attended by these three characters (the TIO, the TIO’s Special Counsel and the arbitrator), so they could discuss the arbitration agreement with Telstra’s Arbitration Liaison Officer and Telstra’s Legal Counsel. They met, without advising the claimants about that meeting, with the defendants and their lawyers, and then we also have those same three gentlemen, all qualified lawyers, agreeing to allow the Resource Unit and the TIO’s Special Counsel to be completely exonerated from any liability at all, in connection with the arbitrations.

What sort of collusion was going on behind closed doors unbeknown to the claimants, and how many other clandestine agreements were made without our knowledge? As the administrator to our arbitration, the TIO should have ensured that before any party signed the arbitration agreement, both the claimants and the defendants were provided with the amended form to acknowledge and sign that they agreed to the changes made. What really prompted these three parties, the TIO, the TIO Special Counsel and the arbitrator, to ensure the removal of these liability clauses? In the government communications regulator’s AUSTEL COT Cases Reportthat was provided to Communications Minister, the Hon Michael Lee MP (see point 5.67, Arbitrator File No/89), it is clearly stated that:

“the arbitrator is to be a person of clear impartiality, independence and integrity with expertise in relevant legal, technical and accounting issues or access to them and with experience in commercial assessment and arbitration”

 That fact alone should have been enough for the TIO and the government communications regulator to declare our arbitrations null and void. That my arbitrator was NOT of clear impartiality or independentshould also have been enough to declare the process a grave miscarriage of justice. This arbitrator, in fact, had been Graham Schorer’s business AND legal advisor for a number of years, as well as an official legal advisor for Mr Schorer’s earlier claim against Telstra in the Federal Court, in relation to the very same telephone fault issues that the arbitrator was now assessing, for a second time, as the impartial and independent arbitrator. See this conflict of interest issue further on in our story.I am not implying that the arbitrator had no relevant legal, technical or accounting ability, or access to or experience in commercial assessment. However, we know that he was not experienced in arbitration at that time, despite the government regulator officially advising the minister and the public that he had to be in order to arbitrate complex matters like the COT arbitrations. It was therefore a risk for all concerned to appoint an arbitrator who was NOT properly qualified (graded), and it is clear now that both the government communications regulator and the President of the Institute of Arbitrators Australia were aware of this fact.

11 April 1994: This letter, from me to Telstra’s CEO (later returned to me by the Australian Federal Police [AFP], marked Protectedstates:

“Would you please instruct the management team within Telstra that can be respond to this request. How does a conversation I had with a former Prime Minister Mr Malcolm Fraser, end up in s Telecom document as common knowledge. I spoke with Mr Fraser yesterday of this matter. He has made it very clear he did not talk to anyone within Telecom about our conversation in the month of April last year”. (See also Main Evidence File No 31)

AFP transcripts (see Australian Federal Police Investigation File No/1) show this particular issue was also discussed during my second interview with the AFP on 26 September 1994. Telstra was unable to give either the AFP or I a feasible answer regarding how they learned of this phone conversation with Mr Fraser. Chapter two in Hacking – Julian Assange provides further details on the extent of the privacy breaches.

14 April 1994: A letter (protected under the AFP Act) from Telstra’s arbitration liaison officer to the detective superintendent of the AFP states that Telstra only voice-monitored my telephone service from June to August 1993.

It records the police asking me about a hand-written reference to a bus company Telstra appeared to have added in the top right corner of a letter I had written previously, on 10 September 1992, to Telstra, although the name was not mentioned in that letter (now stamped AFP protected). It is true that I was tendering to a number of bus companies during 1992, including Nuline Bus Services, Centre Road, Bentleigh; Moonee Valley Bus Lines, Tullamarine; Warrnambool Bus Lines and O’Meara’s (the name hand-written in the corner of this letter). I had contacted all four companies for the same tender in an attempt to use one of their services to bring people from Melbourne to Cape Bridgewater, but since O’Meara’s was not mentioned anywhere in the letter, it had been added. It would seem that Telstra was actually voice monitoring my phone calls or intercepting my faxes as early as September 1992.

Was it during this period that my two diaries just vanished from my office? An AFP officer who visited my business in February commented with words to the effect, that things are not what they should be with the Telstra Corporation.

The Arbitration (Deception) Continues

When the four COT cases signed our government-endorsed arbitration, we were unaware the confidentiality clauses would be used against us to stop us exposing criminal conduct perpetrated against us by the defendants and others associated with the administration of the process. This confidentiality agreement successfully stopped a proper, transparent investigation into why the arbitrator had not control over the arbitration process and why the arbitrations were conducted outside of the ambit of the arbitration procedures (see below). As the following link, Is a non-disclosure agreement legal if it is utilized to cover a, shows, Telstra, the previous arbitrator and the TIO allowed a secret deal to be implemented into the agreement as Chapter Seven below shows. This covert deal benefited Telstra, to the detriment of the claimants. These people should not be permitted to hide behind that confidentiality agreement, as has been the case these past two decades.

21st April 1994, six months later and still with NO discovery documents, we signed the Fast Track Arbitration Agreement despite the lack of the promised documents we would need to prove our claims. This was later confirmed on 23rd March 1999: after the Senate Estimates Committee Hearing into why Telstra withheld so many documents from the COT Cases had been concluded. The Australian Financial Review (an Australian weekly newspaper) reported that the Chairman of the Committee, Senator Alan Eggleston, had stated:

A Senate working party delivered a damming report into the COT dispute. The report focussed on the difficulties encountered by COT members as they sought to obtain documents from Telstra.

The report found Telstra had deliberately withheld important network documents and/or provided them too late and forced members to proceed with arbitration without the necessary information. Senator Eggleston said:

“They [Telstra] have defied the Senate working party. Their conduct is to act as a law unto themselves”.

Senator Eggleston’s statement that “The report found Telstra had deliberately withheld important network documents”, is quite clear. The TIO board and council definitely hid two important issues from the Senate Estimates Committee: (1) The board and council knew that the TIO-appointed resource unit ALSO stopped the COT claimants from receiving relevant documents during the arbitration process, and (2) The TIO and the defendants (Telstra) allowed this to happen by secretly placing the resource unit in charge of deciding what documents they thought were relevant for the arbitrator to view and which documents they thought should be withheld from the arbitration process. (See Chapter Seven, A Secret Deal, below)

The resource unit failed to disclose to the arbitrator, during my arbitration, the ongoing problems that my business was experiencing, with lockup faults on my 1800 service line preventing calls from coming in and incorrect charging for calls that arrived at the Portland exchange 20 kilometres away but never arrived at my business. As shown in Arbitrator File No/53, although the resource unit advised the arbitrator and TIO 15 months after my arbitration that they had withheld this vital information from the arbitration process, it was of little assistance to me, because the TIO failed to follow up on why this had been allowed to happen.

What might have happened, if the Senate Estimates Committee had been aware of these facts during their two-year investigation into the non-supply of documents to the COT claimants? Would the TIO have been officially brought before the Senate and made to explain why the TIO and defence via the resource unit had secretly been allowed to act as a secondary arbitrator, with the power to decide which documents reached the arbitrator and claimants, and which were withheld? Remember, there was no mention of this in the arbitration agreement we signed.

In mid-April 1994, the TIO (the arbitration administrator) knew that the four claimants had registered various FOI requests in November and December 1993, asking for discovery documents. All four, including me, had still not received anywhere near the amount of information needed to mount our individual claims. I, like Senator Eggleston, use the word forced because the TIO was very clear when he told the COT cases that if they did not sign for the TIO arbitration process (which, he said would allow the arbitrator access to the documents they were all asking for) then he would not continue to administer the already-signed Fast Track Settlement Proposal. If this sort of pressure applied by the TIO was not placing a claimant under duress to sign a document he or she does not want to sign, then what is? A Telstra internal email dated 2 March 1994 (Arbitrator File No/86) that discusses a number of proposed COT arbitration issues, between a number of Telstra’s executives, includes the comment:

“My course therefore is to force [the arbitrator] to rule on our preferred rules of arbitration.”

The rules referred to here are the very same Telstra-designed Preferred Rules of Arbitration the TIO’s office secretly used for the COT arbitrations, while at the same time telling various government ministers and the claimants that the rules they were about to sign had been drawn up by the arbitrator and the President of the Institute of Arbitrators Australia. Therefore, not only did Telstra get the structured legal arbitration process they wanted, but they also managed to force the arbitrator to use the arbitration agreement that was eventually branded ‘not a credible agreement to have used’. Of course, by then, he had used it anyway – for my arbitration.

Senator Ron Boswell made an astonishing statement in the Senate on 20 September 1995, raising his concern regarding Telstra’s statement: ‘My course therefore is to force [the arbitrator] to rule on our preferred rules of arbitration.’ Quite emotionally, Senator Boswell added that:

“These COT members have been forced to go to the Commonwealth Ombudsman to force Telecom to comply with the law. Not only were they being denied all necessary documents to mount their case against Telecom, causing much delay, but they were denied access to documents that could have influenced them when negotiating the arbitration rules and even in whether to enter arbitration at all”. (See Senate Evidence File No 1)

It now seems that no-one can explain, or perhaps no-one is prepared to explain, where the arbitrator was when the first four COT claimants were ‘forced’ to go to the Commonwealth Ombudsman in the hope that the Ombudsman would force Telstra to comply with the law. One of the hardest things to understand is that although the arbitrator was somehow forced to use Telstra’s proposed rules of arbitration instead of an independently drafted agreement, even though many senators on both sides of Australian politics were told that the agreement had been independently drawn up when it had not, those responsible for this deception have never been brought to account for what they did and almost as alarming is the way I, the first to go through arbitration, was discriminated against when the three claimants whose arbitrations followed mine received so much more time (years in one case) to submit their claims and answer Telstra’s defence of those claims than I had been allowed.

Documents Will Be Supplied?

The arbitrator, the administrator, and special counsel assured the four COT parties that the Telstra documents they required for their cases would begin to flow through to them once their signatures were on the agreement (see Crimes Act 1958 Evidence File No 9). This was stated before we signed the agreement. By May 1994, one month before the deadline to submit claims, the flow of documents stopped. (See Senate Evidence File No 1) Therefore, I personally arranged to go to Melbourne on the 14 May 1994 to look at some FOI documents that Telstra had stated they would show me in their offices.

These two officials supplied me with some of the documents that I should have received under my December 1993 FOI requests. One of these officials provided 30-odd heavily blanked out documents plus approximately 56 fax coversheets with attached documents. One of these documents referred to the MELU (Melbourne) exchange, which had caused me massive problems between August 1991 and March 1992, (see Crimes Act 1958 Evidence File No/1). I asked one of the officials if he could supply the document without the blanking out. This official went away for some time while I continued to check the documents provided.

I had some documents that Telstra had previously supplied with me, and while this official was away from the room, I examined some fax coversheets I had seen before. They now had different material attached. Nothing seemed to match. For example, documents relating to a fault in 1991 were attached to a fault record dated 1993 that stated that no fault had been found. I was so alarmed at this discovery that I phoned Detective Superintendent Jeff Penrose of the Australian Police and described the situation to him. At his suggestion, I prepared a Statutory Declaration (see Crimes Act 1958 File No/3), which I provided to both the TIO and the arbitrator. Even though the TIO was acting as the administrator to my arbitration, the TIO office refused to send anyone to accompany me back to Telstra’s FOI viewing-room. Considering that, as already noted in my absentjustice.com for this date period, Telstra documents show Telstra’s arbitration liaison officer wrote to the TIO regarding the TIO-appointed resource unit and AUSTEL censoring Telstra documents before the four COT claimants were allowed to use them to support their claims. We have to wonder, is this why no one from the TIO’s office would help to investigate this discovery further?
I needed to know how I could safely submit those records to the arbitration, while maintaining my patrons’ privacy. The TIO thought I should raise this matter with the arbitrator, who could make provisions to have this material viewed in complete security.

Transcripts from my arbitration hearing on 11 October 1994 (see Main Evidence File No 46) confirm that, under pressure from the defendants (Telstra), the arbitrator refused my request to submit this information. He claimed that it was not relevant. Two significant people thought that information was very relevant to my case; my original Fast Track Settlement Proposal claim advisor Selwyn Cohen, of Low Lipman Melbourne Accountants and my later Fast Track Arbitration Procedure claim advisor, Barry O’Sullivan (now Senator Barry O’Sullivan).In May 1994, accompanied by Ms Claire Allston, I met with the TIO in his office in Exhibition Street, Melbourne. I explained that I needed to submit records of my singles club patrons to the arbitration, to support my claim regarding revenue losses I sustained from that part of my business. This was on top of the revenue losses from the holiday camp patronage – all as a direct result of phone and fax problems. I told the TIO I was extremely concerned about the burglaries and break-ins at the premises of COT members Graham Schorer and Garry Dawson, plus an unexplained loss of relevant claim material from my own business. I was also anxious about the security of names and addresses for my singles club patrons and apprehensive they may be made public. If that did occur, I might be held responsible.

It is important to note that some of the registered faults recorded with Telstra, before my arbitration, were deleted/removed from some of documents I studied in Telstra’s FOI viewing room (see Crimes Act 1958 Evidence File No/1File No/2File No/3 and File No/4). I have since provided many exhibits (part of the COT cases chronology of events) to the Australian Prime Minister’s office and the AFP, which prove the existence of the faults that I registered over the six years covered by my arbitration claim. Those documents, however, appear to have never arrived at the arbitrator’s office.

We signed our arbitration agreements on the 21st of April 1994.  It was that same day that we became aware that Peter Bartlett had completely exonerated himself, his company, and the author of the arbitration agreement from all legal liability.  Graham Schorer, Ann Garms and I therefore challenged Mr Bartlett about those changes, reminding him that, just two days earlier, the arbitration agreement had definitely included him, his company and the two resource units ‘in the frame’ to be sued if any of them committed any acts of negligence that would go against us (the claimants). Mr Bartlett’s response included words to the affect that ‘it was a minimal change to the original agreement and would not affect the administration of the process’.  This left us with two choices: either sign the documents as they had been presented to us that day or, as Mr Bartlett informed us, he would follow the instructions he had received from Warwick Smith and the TIO would cease to administer our Fast Track Settlement Proposal.  It was clear that, if that happened, we would be left with only one avenue – to go through the courts. So, like lambs to the slaughter, we signed the agreement.

What we did not know at the time, of course, was that just three months later, in June, AUSTEL, the TIO and Telstra would secretly agree to reinstate the $250,000 liability caps related to both resource units, which meant that those resource units could be challenged by the COTs for negligence, but Peter Bartlett and Minter Ellison still remained exonerated.

So this raises a very important question:  why have the TIO’s Office, Board and Council all ignored Peter Bartlett’s threats and how, in the end, did Mr Bartlett, as the TIO’s Legal Counsel, end up in a situation where he had absolutely no reason to be the least bit concerned about being sued for misconduct, i.e. he would bear no liability, regardless of what he might or might not do in relation to our arbitrations?  Something just does not add up.

In March and April of 2006, during the assessment process carried out by the Department of Communications, Information Technology and the Arts (DCITA) and organised by Senator Barnaby Joyce and Senator Helen Coonan, I wrote to the DCITA to explain that, for the previous ten years, I had been told, a number of times, by various Government departments, that I should take this particular complaint back to the TIO’s office, even though I had also explained that this action was futile because it was just like asking a criminal if they should be charged for theft when they had been caught robbing a bank!  So what did the DCITA do about these issues after they had received this information?  They never even responded. However, what we do know is that the law does not permit any individual, or any organisation, who has been accused of fraud, misconduct or collusion to investigate themselves. So why have so many members of COT been told to take their claims about the seriously faulty conduct of their TIO-run arbitrations back to the TIO?

22 April 1994:  This fax from AUSTEL to me, which is dated the day after I signed the arbitration agreement, explains that AUSTEL had received three blank faxed pages (from my fax line – 55 267 230. AUSTEL determined these three faxes had come from my office by checking their fax journal. On this occasion all three pages had a very small outline of a square at the top left side of each page. AUSTEL’s fax journal shows transmission times for these blank page of 01.40, 02.13, and 2.22 minutes and my fax account includes charges for these pages, even though there was no identification on the pages that AUSTEL received to show where they had come from. It was important to discuss this blank-page episode at the beginning of my arbitration because I continued to report, to the arbitrator, the ongoing problems I was having with faxes and my suspicion that faxes I had sent to the Arbitrator had never arrived.

I faxed Dr Hughes further claim material

23 May 1994: This fax billing account confirms I made five attempts from my office to fax this information to Dr Hughes failed. Telstra’s B004 defence document stated the fax couldn’t get through because Dr Hughes’s fax machine was busy. If this is so, why was I charged for the five calls?

MISSING FAXES

After numerous faxes sent from my office to Dr Hughes did not get through, I became more and more agitated. I had no idea where these faxes might be disappearing to, or why.

Documentation obtained from Ferrier Hodgson Corporate Advisory (FHCA) and the TIO-appointed arbitration resource unit confirm numerous documents forwarded to Dr Hughes’ office did not appear on their list of documents as being received.

COMMENTARY:

Between me signing the Fast Track Settlement Proposal, 23 November 1993, and realising Dr Hughes’ office was not getting all of his transmitted faxes, I participated in these official inquiries and investigations:

  • The AFP investigation, which was still in progress.
  • The AUSTEL investigation into my matters.
  • The Commonwealth Ombudsman investigation into my FOI matters, which was not completed until May 1997, two years after my arbitration was deemed finalised.

Question

How could anybody believe that it was reasonable to expect the COT Cases to successfully prepare their claims while they were involved in the above investigations?

27 May 1994: Trying to produce a claim in some readable form when the story was so complex, multi-layered and further complicated by long-delayed access to necessary information, was extremely difficult. My phone and fax lines became lifelines to Garry Ellicott in Queensland. When Garry attempted to ring me on 27 May 1994 on my 1800 service, he twice reached a recorded announcement telling him my number was not in service, before he was finally connected. When Garry rang the Telstra fault centre to complain about the recorded messages, the operator told him she could not register the fault because the complaint had to come from the customer. Garry’s response was understandably blunt. How, he asked, can the customer complain if he doesn’t know I’m trying to reach him? How can he complain if he is not aware that his incoming callers believe he’s no longer trading? When my telephone account arrived I had, of course, been charged for both failed calls. These 27 May 1994 recorded voice messages were quietly investigated by the government regulator AUSTEL (now ACMA) instead of the arbitrator.The arbitration process appears to have been set up to investigate only some issues, with the more important ones addressed in camera. Of course, the claimants were never advised of these facts, before they signed for the arbitration.

15 June 1994: In the claim I lodged with arbitrator, I made it very clear that:

  • The FOI documents Telstra supplied, had not been supplied with the required schedule FOI numbering system;
  • It was extremely difficult to compile and submit a complete claim when Telstra provided so much documentation without schedules and heavily censored;
  • Because of these problems, I would be submitting further documents to support my original claim submission; and
  • George Close, my technical advisor, had not yet received the relevant technical data I had requested under FOI in December 1993 and so his report would be delayed.

The arbitration agreement states quite clearly that the arbitrator would pass the claim to Telstra once it has been completed. Then, he was to allow Telstra one month to submit their defence. George Close (my technical advisor) wasn’t able to submit his report until late in August 1994. Various documents indicate that Telstra had received my interim claim by 21 June 1994. However, since it was only an interim claim and my formal claim wasn’t complete until George’s report had been submitted, this meant that the arbitrator allowed Telstra at least three months in which to prepare their defence. The timing obviously began when they received my interim claim. Telstra did not submit their defence until 12 December 1994, almost six months after receiving my interim claim. The arbitrator allowed them that extra time. None of the claimants knew that the arbitrator was not a properly graded arbitrator, but that he was actually in the process of attaining his grading, while he was arbitrating on the extremely complex COT cases. Unfortunately, the arbitrator failed his grading exams on this occasion. Then-president of the Institute of Arbitrators Australia (Mr Nosworthy) wrote to me on 10 April 2002 noting:

“Dr Hughes  has written to me expressing uncertainty as to whether he was a member of the Institute of Arbitrators Australia at the time of the arbitration. Although our records indicate that he was a member, he was not at the time a graded arbitrator within the Institute, and was not included on the Register of Practising Arbitrators until well after he delivered the award in your matter on 11 May 1995.” (See Arbitrator File No/87)

So why have the TIO (the process administrator) and the government (who endorsed the first four COT arbitrations) never held the arbitrator to account for misleading all parties involved in the arbitration into believing that he was a properly qualified arbitrator? This is particularly pertinent when it is examined in the context of a letter dated 28 September 1996, from Mr J.J Muirhead, as president of the Institute of Arbitrators Australia, to me (see Arbitrator File No/88). He commented that not appointing an arbitrator from the Institute means “there is always a risk in these circumstances”. How can an arbitrator write to the president of the Institute of Arbitrators Australia, expressing uncertainty as to whether he was a member of the Institute of Arbitrators Australia at the time of the arbitration”? Why have the TIO and the person who appointed this ungraded arbitrator never been brought to account for not ensuring he was fully graded.

Chapter Seven

Reinstated liability Clauses

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

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

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

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

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

Furthermore, as the next installment of the story shows, this control extended to the arbitrator and the TIO-appointed resource unit.

In summary, Senators Alston and Boswell took up COTs’ cases with Telstra and AUSTEL in August 1993 and stated that if they were not swiftly resolved there would be a full Senate Inquiry. Telstra agreed to co-operate, and AUSTEL was authorised to make an official investigation into our claims. As a result of their investigation, AUSTEL concluded that there were indeed problems in the Telstra network and the COT four had been diligent in bringing these issues into the public domain.

Because we were all in such difficult financial positions, AUSTEL’s chairman, Robin Davey, recommended that Telstra appoint a commercial loss assessor to evaluate our claims. These claims had already been found generally valid in AUSTEL’s report. All that remained was for an assessor to determine an appropriate settlement, based on the detailed quantification of our losses. This Fast Track Settlement Process was to be run on strictly non-legal lines. This meant we would not be burdened with having to provide proof to support all of our claims. We would be given the benefit of the doubt in the quantification of our losses. This was the process AUSTEL specified as appropriate for our cases. Telstra was to give us prompt and speedy access to any discovery documents we needed to enable us to complete our claims as quickly as possible. It is quite likely that neither the current government, nor any government before them, has yet contemplated that:

The Australian Government owned the Telstra Corporation outright when the COTs first began the claim process;

AUSTEL conducted their investigation into my phone complaints under section 335 (1) of the Telecommunications Act 1991;

Section 342 of that Act directs that, after concluding such an investigation, AUSTEL was legally required to prepare a report and provide it to the Minster for Communications and the Arts, and that report was to cover:-

the conduct of the investigation; and

any findings that AUSTEL made as a result of their investigations.

There were seven individual COT arbitrations running simultaneously and AUSTEL had problems with acquiring documents from Telstra in relation to each one of them. However, they did not even warn the Minister for Communications that Telstra’s reluctance to provide them with the requested, relevant documents was seriously hampering their investigations, even though these documents were essential to the proper investigation of these cases. As Open Letter File No/4 File No/5 File No/6 File No/7, show (point 43, page 20; point 48, page 22; point 71, pages 28-29; point 140, page 49; point 160, page 55), in my case alone, AUSTEL made five separate attempts to acquire documents from Telstra but they were unable to complete their findings because Telstra would, or could, NOT supply the material AUSTEL needed to fully report on all the facts. This meant even though AUSTEL knew where Telstra stored their files, and had the power of government legislation to demand Telstra supply these documents, they were still not provided.

If a government communications regulator could not obtain the documents they needed to successfully investigate the COT Cases allegations, what hope did the COT cases have? Surely AUSTEL had a moral obligation, if not a statutory obligation, to fully report these facts to the government (as endorser of these arbitrations) before the COT cases spent many hundreds of thousands of dollars, as they did, in arbitration fees trying to access documents that AUSTEL knew the claimants had NO chance of obtaining.

A Secret Deal

Telstra’s Arbitration Liaison Officer Steve Black wrote to Warwick Smith the TIO on 11 July 1994 (see My Story Evidence File/16) stating:

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

The statement in Telstra’s letter “if the resource unit forms the view that this information should be provided to the arbitrator confirms that both the TIO and Telstra were aware that the TIO-appointed resource unit had been assigned to vet most, if not all, the arbitration procedural documents en route to the arbitrator. If the resource unit decided a particular document was not relevant to the arbitration process, it would not be passed on to the arbitrator or other parties. This particular secret deal has been linked to further clandestine dealings and is discussed further elsewhere on absentjustice.com. Could this secret deal be directly related to the very important 24 January 1995 arbitration letter which is discussed below under Telecommunication Industry Ombudsman

The Telecommunications Industry Ombudsman (TIO) is an Australian National Telecommunications Industry Regulator, which seems like a good idea except that this Ombudsman is funded by the telecommunication carriers themselves, which means that it can hardly be called impartial, on any level, but particularly when they are involved in an arbitration, and their wages are actually paid by the defendants in that arbitration! Evidence available at absentjustice.com shows that, during the COT arbitrations, the TIO allowed Telstra employees (the defendants in the arbitration) to be present at all TIO board meetings, and all monthly TIO council meetings, including any that involved discussions about COT arbitration issues.  So were any of the COTs (the complainants in this legalistic arbitration process) allowed to attend those same meetings, or even invited to attend those meetings?  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 discriminated against in the most deplorable manner.

On 24 January 1995 I responded to Dr Gordon Hughes’ very important 23 January 1995 letter (see but 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 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 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 fax machine footprint identified across the top of the document.

If Dr Hughes had replied to my 24 January 1995 letter, I could have proved Telstra knowingly used fraudulent documents as arbitration defence documents as the following link > Telstra’s Falsified BCI Report shows.

As shown in File 10 above, the TIO did NOT have the authority to introduce a separate deal into a process being conducted according to a written legal agreement. On page 5 of the Commercial Arbitration Act 1984, under Part II – Appointment of Arbitrators and Umpires, (see Open Letter File No/21

6. An arbitration agreement shall be taken to provide for the appointment of a single arbitrator unless –

(a)  the agreement otherwise provides; or

(b)  the parties otherwise agree in writing.

The fast-track arbitration procedure agreement I signed, mentions only one arbitrator. There is no written agreement in existence, seen by me, that allows a second arbitrator to determine what information the first arbitrator will see. It is interesting to collate a number of covert situations set up by key players in the COT arbitrations and mischievously concealed under the arbitration agreement confidentiality clauses, even though those events took place before the confidentiality agreement was signed. In their 2 August 1996 communication to the arbitrator (copied to the TIO), the resource unit admitted to concealing relevant documents pertaining to my billing issues from the arbitrator during the course of my arbitration. This serious matter has never been addressed by the TIO or arbitration.

1427773867000[1]

3 October 1994: Telstra’s Steve Black writes to Graham Schorer stating:

“…Subject to the confirmation of the consent and availability of the Arbitrator I confirm my agreement to meet with him, Mr Smith, Mrs Garms and yourself on Wednesday 5 October 1994, or such other date as the Arbitrator is available. The purpose of the meeting is to address the means by which these Arbitrations may be progressed promptly. In particularly the meeting will focus on issues relating to the production of documents both by Telecom and between the parties.”(AS 100)

Even though Graham Schorer and Alan had continued to raise the production of document issues with Dr Hughes (including providing evidence confirming Telstra had deleted information on received FOI documents) between February 1994 and the meeting of 5th October 1994, this meeting never took place. It is interesting to note that in Dr Hughes’ letter to Warwick Smith, dated 12th May 1995 (see below) Dr Hughes actually blamed the poor time frame in the Arbitration Agreement (for the production of documents) as one of the reasons that the Arbitration Agreement was not credible.

Apart from Dr Hughes not convening this meeting to discuss the production of documents are we to assume some sought of favouritism by the arbitrator was in progress?

3 October 1994, As Alan has noted earlier, during the AUSTEL COT Report period in April 1994, Cliff Mathieson, a technical advisor to AUSTEL, asked him to keep AUSTEL informed of any evidence that Alan found during his arbitration, which might assist AUSTEL in their investigations into 008/1800 billing and short-duration call problems.   Because of AUSTEL’s request that Alan keep them up to date, he wrote to them on 3 October 1994, providing evidence, using Telstra’s own data, which showed that they had charged Alan for two non-connected recorded voice faults (RVA) on 27 May 1994.  Alan’s evidence was supported by the fact that the person who complained about these two faults was his arbitration claim advisor, Gary Ellicott, ex National Crime Detective, and he was not a man to stretch the truth in any way.

This letter to AUSTEL on 3 October 1994 later became pivotal to Alan’s increasing anger, particularly when he then received the following information from Dr Hughes in a letter dated 15 November 1994 (AS 118):

“As I have indicated previously, I believe it would be inappropriate for me to order the production of documents in connection with the preparation of your claim, until Telecom has submitted it defence.  I will then understand the parameters of the claim.”

Alan’s frustration is clear from his response dated 27th November 1994, part of which is reproduced here (AS 119):

“I refer to your letter dated 15 November, 1994.

In paragraph three you have noted that, if newly released F.O.I. material is made available by Telecom, and if that makes it necessary for me to amend my claim, I should advise you accordingly.

I have continually corresponded with both yourself and Telecom about my concerns with regard to the conduct of Telecom Management; Simon Chalmers; Freehill, Hollingdale & Page and their delaying tactics.  Their drip feeding procedure, where the release of these F.O.I. documents is some twelve months late, has disadvantaged me in the preparation of my submission under the Fast Track Arbitration Procedure.

Newly released documents on their own may only show limited evidence, painting a small picture.  However, had this newly released F.O.I. material been released some twelve months ago, as it should have been under the F.O.I. Act, this material, when combined with documents already released, would have helped in many instances to further the point made on certain issues.

Telecom Management, by using this destructive system, has disadvantaged C.O.T. and its members throughout this Arbitration Procedure.  By not allowing all the evidence to be viewed by C.O.T., Telecom has stopped us from substantiating all our claims with all the available material.  “A Jigsaw Puzzle Can Only Be Finished When All The Pieces Are Tabled”:  and didn’t Telecom Management play this to a break!”

And, later in the same letter:

“So, in response to your letter of 15th November, 1994:  How can I amend my claim?  Telecom have already had five months to view my first submission as presented in June, 1994, and three months to view my second submission presented in August, 1994.  I am already living on borrowed time, in more ways than one, and each delayed week is having an effect, particularly where advertising for next year is concerned – this has already been disadvantaged.”

Finally, at the end of the third page, Alan noted:

“I do not have the resources to have a professional team view these additional F.O.I. documents which have just been released by Telecom.  I have spent time writing reference to these examples and enough is enough.  All future F.O.I. that has not been provided will have to stay put.  I am today mentally exhausted and unable to continue taking part in Telecom’s façade, their Merry Go Round.

I thank you for your time, and that of the Resource Team.”

This letter was sent the following day, 28 November and that evening, totally overcome with anger and frustration, Alan smashed a single barrel shotgun that had been given to him by his father-in-law, Noel Wagner, some sixteen or seventeen years earlier.

LODGEMENT OF ARBITRATION CLAIM

Although the first part of Alan’s FTAP claim was lodged with Dr Hughes on 15th June 1994, Alan was still submitting sections of his claim in October / November 1994 only partly finished due to Telstra’s unethical conduct of supplying Alan only anecdotal documents.  It is important to note that on 15th June 1994 when this anecdotal information was supplied by Alan to Dr Hughes he immediately supplied this claim material to Paul Rumble, of Telstra’s Customer Response Unit even though the Arbitration Agreement states quite clearly that the arbitrator should pass the claim on to Telstra WHEN THE CLAIM IS COMPLETE.

Dr Hughes also knew that George Close (Alan’s technical advisor) could not submit his report until late in August 1994 and this meant that the document Alan submitted in June 1994 was an interim claim only.  On 15th June 1994 Dr Hughes passed Alan’s interim claim on to Telstra, which gave Telstra a three month head start to begin preparing their defence – because Alan’s complete claim would not be submitted until George’s report was included and that would not happen until at least the end of August.  The arbitration agreement allowed Telstra only one month for the preparation of their defence in reply to the claimant’s submission.  In fact, flaunting the arbitration rules even more, Telstra did not submit their defence until 12th December 1994, almost six months after they received Alan’s interim claim.  How much more one-sided could this process have been?

Exhibit (AS 103) is derived from a thirteen-page document dated 30th March 1995, prepared by Ferrier Hodgson Corporate Advisory for Warwick Smith.  The two attached pages from this report confirm that FHCA knew that Alan’s claim was not complete until at least November 1994 including explaining that Alan had been forced to drip-feed claim material to Dr Hughes because of the way Telstra had been drip feeding FOI documents when Alan was attempting to prepare his claim, and because Telstra did not supply the bulk of his FOI document (24,000) until after they had submitted their defence, by which time Alan had only a month to respond to their defence.  This is the ‘poor time frame’ that Dr Hughes was aware of and which he overcame for the next three claimants by allowing them between thirteen months and four years in which to submit their response to Telstra’s defence and their responses to the TIO-appointed technical consultant’s report as well as allowing them this extra period in which to amend their claims.  This is the ‘poor time frame’ that Dr Hughes alerted Warwick Smith to on 12th May 1995, and which Dr Hughes said had meant that the arbitration agreement was ‘not a credible document’ for use in the remaining arbitrations (see below).

11 October 1994: AUSTEL (now called ACMA) wrote to Telstra’s arbitration SVT engineer regarding the deficient verification testing and asked what Telstra intended to do about this deficiency (see Arbitrator File No/97).

Between 1992 and 2002, starting with the lead-up to my arbitration, there were times when I was concerned about the possibility I was under surveillance. I found it difficult to explain, even to myself, why I felt so on edge. In hindsight, I know understand various odd events, each apparently quite trivial on their own, were actually part of a bigger picture of lies and deceit that started from the formation of the COT group in 1992 and continued right up to Telstra’s threat in relation to documents I provided to the Australian Federal Police.

I spent over 20 years at sea and nearly as many years in various industrial catering jobs at mining camps. Those who know me well agree I was someone who would never walk away from an old-fashioned ‘stoush’. For a few days after receiving that particularly blatant threat, I felt uncharacteristically anxious. I actually contemplated not providing the FOI documents that Telstra had warned me about – before I realised this was just another ‘stoush’, like many others I had weathered over the years, and so, I continued to assist the AFP with their inquiries.

All this stress, however, eventually generated a trip to hospital in an ambulance, with a suspected heart attack. The final diagnosis was that it was a stress attack, which I believe was brought about by the accumulated pressure of no-one listening; not even during my arbitration, when I described the unlawful conduct of various Telstra employees and the control they apparently had over the arbitrator and the TIO. I was not the only COT who could see what was happening YET the arbitrator and the TIO stood by, neither taking action nor investigating my claims.

If the arbitrator had responded to just one of my letters, perhaps by demanding that Telstra prove

that they had carried out the SVT according to the agreement reached with AUSTEL, the TIO and Telstra (before the claimants signed their individual agreements), I could have proved the SVT process at the holiday camp failed, as we were claiming. No one would investigate this failed SVT process.

11th November 1994, confirmation Alan had not received all his relevant requested FOI material. John Wynack, Director of Investigations at the Commonwealth Ombudsman’s Office, wrote to Frank Blount, Telstra’s CEO.  This letter was copied on to Dr Hughes and Warwick Smith – it indicates how desperate Alan was becoming.  Alan believes that Mr Wynack made it quite clear to Mr Blount that he would be more than a little concerned if Alan’s allegations were proved to be correct in regard to Telstra knowingly blanking out information on documents previously supplied under FOI; and/or knowingly withholding relevant documents from Alan.  Mr Wynack’s concerns were justified see (AS 114).

Please note: the fax imprint at the top of this letter – 036148730 was Dr Hughes’ office fax number which confirms his office did receive this information.

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, (AS 115).

What is amazing about this draft award inadvertently provided to Alan by the TIO office in 2001, 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 FOI issue see exhibits (AS 114 to AS 116), 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 (AS 114), 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.”  

On page 4, of John Pinnock’s report to the Senate Estimates Committee dated 26th September 1997, he states:

“…In the process leading up to the development of the Arbitration procedures the Claimants were told that documents would be made available under the Freedom of Information Act” (AS 117)

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’.  The letter dated 13th October 1994 (Exhibit AS 443, above and immediately below) provides further testament to claims that Dr Hughes should have abandoned all the COT arbitrations until Telstra could be made accountable for their illegal behaviour in relation to the claimants.

Dr Hughes plays Arbitrator

21 November 1994: After sending his letter of 15th November but before Alan’s reply had been drafted, Dr Hughes wrote to Alan again, with the following statement: (AS 120)

“If I form the view, or if the Resource Unit forms the view, that there are relevant documents in the possession of either party which have been deliberately or inadvertently withheld, I shall make an appropriate order for production.”

13 October 1994: A letter sent by a Telstra whistleblower to Parliament House Canberra and received by the Office of the Hon Michael Lee, MP Minister for Communications, includes allegations against one of the Telstra executives involved in altering and removing information on documents I requested at Telstra’s FOI viewing room. Someone has added a hand-written comment on page one, pointing to this person’s name and noting [the TIO] “has been critical of [same Telstra representative] on some issue”

The deputy TIO passed this letter to the TIO, together with my statutory declaration (see Destruction of Evidence / Perverting The Course of Justice/Crimes Act 1958 File No/3) showing I had named this same Telstra representative as one of the employees who had removed information on requested FOI documents and/or had not provided the correct documentation. The TIO must have told someone – either in the government or in a regulatory position – that this Telstra representative was named by two different sources. The whistleblower’s letter (see Destruction of Evidence / Perverting The Course of Justice/Crimes Act 1958 Evidence File No/8) states under the heading Concerns and Issues

“Telstra’s Steve Black ‘Group General Manager of Customer Affairs, who has the charter to work to address and compensate Telecom’s ‘COT’ customers as well as the management of other customer issues related to Telecom, is involved in and initiates conduct and work practices that are totally unethical…

There are three main areas in which this second Telstra representative and his senior executives have sought to influence and manipulate.

1.Remove or change clear information on the position of liability.

2.Diminish the level of compensation payable to COT customers.

3.Dismissive of breaches in relation to matters regarding customer Privacy”.

When this document surfaced some four years after my arbitration, it further proved what the COTs had been claiming all along: their cases were crippled before they even submitted their claims. One particular statement on the first page of this letter caught my eye however, i.e. the whistleblower’s comment naming the same Telstra employee that I named in my statutory declaration as being part of the FOI unit that provided me altered documents in Telstra’s Melbourne office on 13 May 1994.

11 November 1994, John Wynack, Commonwealth Ombudsman Office wrote to Telstra’s CEO noting:

“At the request of (name deleted), I am notifying you of the details of the complaints made to the Ombudsman by Alan Smith;

  • Telecom claimed that documents given to Telecom by Mr Smith in 1992 had been destroyed or lost.
  • Telecom has lost or destroyed a number of files relating to his contacts with Telecom prior to 1991.
  • Telecom unreasonably delaying providing access to many documents.
  • Telecom unreasonably refused to provide the Portland/Cape Bridgewater Log Book associated with the RCM at Cape Bridgewater’ for the period 2 June 1993 to 6 March 1994″

While sworn statement one (dated 10 August 2006) by an ex-Telstra protective service officer has been addressed elsewhere in absentjustice.com (see Main Evidence File No 30), I again raise this statement here because points 20, 21 and 22 support how important this withheld Portland/Cape Bridgewater Log Book was:

(20)”…I had cause to travel to Portland in western Victoria in relation to a complaint involving suspected illegal interference to telephone lines at the Portland telephone exchange.

(21) As part of my investigation, I first attended at the exchange to speak to staff and check the exchange log book which was a record of all visitors to the exchange and a record of work conducted by the technical officers.

(22) When I attended at the exchange, I found that the log book was missing and could not be located. I was informed at the time by the local staff that a customer from the Cape Bridgewater area south of Portland was also complaining about his phone service and that the log book could have been removed as part of that investigation”.

Could this perhaps, be linked to my first disclosure to AUSTEL, in June 1993, when I explained that at least two other businesses in Portland were having considerable 008/1800 problems? In addition, I told AUSTEL that it was impossible for so many short-duration calls to have come into my business, even though that was what my telephone account showed. Telstra’s local technician had lied about the ELMI monitoring machine NOT being connected to my service, when it had been.What was in the logbook that a government regulator, Telstra’s own protective service officer and the commonwealth ombudsman’s office have been unable to gain access to it? Like much of the Cape Bridgewater fault data that AUSTEL failed to obtain from Telstra during their investigations into my complaints (see Main Evidence File No 15), I was also unable to get my hands on the Cape Bridgewater/Portland exchange logbook – not even with the help of the Commonwealth Ombudsman.

Could this be the reason why the log book vanished? Perhaps Telstra feared a class action lawsuit in the future. All I wanted was to prove my case and get on with running my business.

In my own letter to Dr Hughes, of the same date, regarding the concealment of this logbook (which I continued to seek through the arbitration process) I noted:

“I believe the following fax from the Commonwealth Ombudsman’s Office, is relevant to my claim, and not contrary to the instructions outlined in your letter dated 10th November, 1994.

“In defence of these letters and faxes I would like to state that I believed at the time of writing that I was showing both the reluctance of Telecom to assist me with the Arbitration Procedure and their efforts to inconvenience me in this Procedure. However, I understand the legal reasons you have put forward as to the inappropriateness of forwarding literature back and forth where it may be seen by parties as compromising the confidential undertakings I agreed to abide by.” (See Home Page File No 10 -A)

Dr Hughes stated I should not be sending letters to him, the TIO or Telstra unless the letters related directly to my claim. I received threats from Telstra after the signing of the agreement. Telstra refused to supply requested FOI documents and forced me out of their Melbourne Exhibition Street head office after I discovered some of my requested FOI documents were defaced while I was at lunch. Yet Dr Hughes and Warwick Smith would not approach Telstra on my behalf and demand Telstra explain those threats. The Australian Federal Police were supposed to investigate these threats and did not. It seemed Telstra controlled the whole arbitration process. This is why I stood out, alone, asking what the #$?* is going on! Where was the Portland Cape Bridgewater exchange logbook? This one document, amongst thousands, on its own would prove my case: my ongoing telephone problems and those of other Cape Bridgewater and Portland residents were true, as the daily recording of those faults, penned into the log book each day by the various technicians, would have shown. I was on my own, as were the other COT cases. Of course, later the Senate uncovered that Telstra withheld most, if not all, of the relevant, requested documents. However, the Senate’s findings, regarding this withholding, were tabled three years after my arbitration over. This was three years too late: Telstra had won and concealed that my ongoing complaints were real.

The AUSTEL report confirms they initiated the SVT process so the arbitrator to the COT process had a guide as to whether all phone and faxing problems registered by the COT claimants had been located and rectified. The arbitrator was unable to hand down his final decision until Telstra demonstrated that they had carried out the specified SVTs and proved to AUSTEL’s satisfaction that both phone and fax services to various COTs’ businesses were up to the expected network standard.AUSTEL supplied the quarterly COT Cases Report (see Arbitrator File No/100) to communications minister, the Hon Michael Lee MP, on 13 April 1994; sections from the report are also relevant to the following 11 November 1994 segment above. Points 5.31 and 5.32 in this AUSTEL report, highlight the continuing phone and fax problems encountered by the four original COT claimants’ businesses, AUSTEL directed Telstra to carry out Service Verification Tests (SVT) at claimants’ premises using AUSTEL specifications, to verify that claimants’ phone services were brought up to a proper working standard, but this did not eventuate. (See Open Letter File No/22)

16 November 1994: AUSTEL wrote to the Telstra arbitration liaison officer under the heading Service Verification Test Issues, outlining their concerns regarding the deficiencies in the testing process conducted at the Cape Bridgewater Holiday Camp (see Main Evidence File No/2). Telstra’s CCAS data for the day (29 September 1994) testing took place at my premises confirms that not one of the incoming tests connected to any of my three business lines met the regulator’s mandatory requirements.
In the technical report Brian Hodge, BTech, MBA (B.C. Telecommunications) prepared on 27 July 2007, after viewing the Cape Bridgewater Holiday Camp (SVT) CCAS data for these tests he states:Even though AUSTEL expressed serious concerns about the obvious deficiencies in this SVT, Telstra still used these test result to support their arbitration defence.

“It is my opinion that the reports submitted to Austel on this testing programme was flawed, erroneous, fictitious, fraudulent & fabricated, as it is clear that no such testing has taken place as Telstra’s own call charge system DOES NOT record any such activities. Therefore the results are flawed or did not occur” (See Main Evidence File No 3)

By the time I received this AUSTEL Telstra letter in 2002, the statute of limitations allowing me to use this information in an appeal had expired. It is clear from Main Evidence File Nos/2 and 3 that the SVT process at Cape Bridgewater Camp was not performed according to the regulator standards.

The AFP issue, recorded in Australian Senate Hansard records of 29 November 1994, has also been addressed on this website in the Senate link, and is just as important to raise here too, in the same way that the 14 May and 13 October 1994 issues have been included above.

Both the May and October sections discuss the way Telstra destroyed evidence. More details related to these issues are also available on the Destruction of Evidence / Perverting The Course of Justice. link. It is impossible to discern which of these three events was worst; partly because all three are linked to the same topic, i.e. Telstra’s withholding and/or destroying of evidence during litigation. Neither the arbitrator nor the TIO moved to assist me in their capacity as government regulators to help me resolve any of these three major issues. In addition they did not offer to help me in relation to the threats Telstra made. It is now perfectly clear that these three issues were never addressed. It is obvious that there was something radically wrong with the way the arbitrator and TIO administered my arbitration process, but there is much more to come and the story gets even better.

Even a hardened senior Victorian police officer (who was once a police prosecutor and a qualified lawyer) could not believe that an arbitrator stated, in writing, that he and his resource unit read through 24,000 documents even though he never accepted them into the arbitration. In fact, when I first tried to submit some of them, he refused point blank to accept them. How could he, then, have the gall to tell the president of the Institute of Arbitrators that all 24,000 of them had been assessed?

How could such a well-respected learned man, an arbitrator, write such a letter to the Institute of Arbitrators Australia, knowing my claims were under investigation?

If he had told the president the truth, which was that Telstra sent the 24,000 documents to me too late for me to collate, assess and include in my reply to Telstra’s defence; (because I only had 12 days in which to do so), then the government might have investigated these matters at that time.

In response to AUSTEL’s letter noting Telstra’s SVT process conducted at my premises was grossly deficient (refer Arbitrator File No/2 letter), the Telstra SVT specialist who performed the tests – and who was also part of the management team – replied. However, the defendants demanded that the government not release any documents associated with the SVT process, without prior authorisation from them. In this 28 November 1994 letter to AUSTEL, Telstra states:

“As agreed at one of our meetings and as confirmed in your letter of 16th November 1994, attached please find the detailed Call Delivery Test information for the following customer. This information is supplied to AUSTEL on a strict Telecom-in-confidence basis for use in their Service Verification Test Review only and not for any other purpose. The information is not to be disclosed to any third party without the prior written consent of Telecom.” (See Arbitrator File No/98)

In the 16 November 1994 letter, AUSTEL warned Telstra that the Cape Bridgewater Holiday Camp SVT process at my premises had been deficient. By what legal authority could Telstra Australia insisting on confidentiality? The only legal authority behind such a request would be the Crimes Act 1914.

Later changes to Australian law render this authority irrelevant, so how can Telstra require confidentiality from AUSTEL employees working for the government communications regulator? Arbitrator File No/110 is one of two SVT testing documents discussed in the 29 November 1994 letter from Telstra to AUSTEL. These two Call Charge Analyses System (CCAS) data print-outs clearly show there were not 20 mandatory SVT tests calls generated into each of my three service lines: 03-055 267 267, 03-055 267 230 and 03-055 267 260 on the 29 September 1994. That day, this particular Telstra engineer’s SVT monitoring equipment malfunctioned. The 60 test calls that would normally be required to check faults on these three service lines, were not carried out; the lines were not held open for the 100-120 seconds required to fully test their functioning capabilities.

In October 2008 and May 2011, the Administrative Appeals Tribunals (AAT) heard my two Melbourne FOI matters. The government communications regulator (AUSTEL/ACMA) was the respondent on both occasions. I had still not received my promised discovery arbitration documents from 1994.

Arbitrator File No/110, Main Evidence File No 3 and the letter of 28 November 1994 (see Arbitrator File No/98) supported my claims against certain public servants, employed by AUSTEL, who assisted Telstra to pervert the course of justice during my arbitration. Mr Friedman, senior member, after hearing my claims, found them neither frivolous nor vexatious and supported my quest for justice.

The current ACMA chairman and lawyers were given proof that the author of the 28 November letter dictated what government regulators could or could not do during my government-endorsed arbitration, and that the writer swore under oath (12 December 1994) in his witness statement that the SVT tests met and exceeded AUSTEL’s specifications. The ACMA chairman has failed to act on this incriminating evidence.

This same Telstra employee was named in the Senate Estimates Hansard of 24 June 1997 as advising Telstra employees that the five COT cases (including me) had to be “stopped at all costs” from proving the validity of our claims (see Open Letter File No/24). As part of my AAT submission, I provided both AAT and ACMA with a 156-page Statement of Facts and Contentions, plus a CD containing some 440 supporting exhibits.

Between 24 February 2008 and 14 January 2009, more than 15 letters addressed to various ACMA lawyers and the chairman of ACMA show the contradictions in Telstra’s SVT reports and their sworn witnesses’ statements. These documents, provided during my arbitration process (which was known to be grossly deficient), were handed to both AAT and ACMA as part of the AAT submission. I also included the proof that another set of tests – the Bell Canada International Inc. (BCI) tests – submitted as evidence by Telstra during my arbitration, were also impracticable (see Telstra’s Falsified BCI Report ‘masked identities‘ and Main Evidence File No 3).

This matter was not investigated in conjunction with the deficient Cape Bridgewater SVT process. Two reports – one dated 10 November 1993, the other October 1994 – were both proved grossly inaccurate yet; the arbitrator relied solely on them and furthermore, accepted them as factual evidence. The senior executives of AUSTEL have been shown to be clearly negligent of their duties and this has had grave repercussions for all COT cases, particularly mine. It has further repercussions for the general public and the integrity of the organisation he represents.

29 November 1994: On page 180 ERC & A from official Australian Senate Hansard, it is reported that Senator Ron Boswell asked Telstra’s Legal Directorate::

‘Why did Telecom advise the Commonwealth Ombudsman that Telecom withheld FOI documents from Alan Smith because Alan Smith provided Telecom FOI documents to the Australian Federal Police during their investigations?’ (Senate Evidence File No 31)

In my original letter of 4 July 1994 to Telstra’s arbitration liaison officer I stated:

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

At the time of writing this letter I had no intention of providing the AFP with any more FOI documents. However, the AFP came to Cape Bridgewater on 26 September 1994, asking a number of questions concerning this Telstra official. On page 12 of the AFP transcript of my interview at Question 57 (see full AFP transcripts, Australian Federal Police Investigation File No/1), the AFP state:

The thing that I’m intrigued by is the statement here that you’ve given (name deleted) your word that you would not go running off to the Federal Police etcetera’.

Between July and December 1994, I informed the arbitrator numerous times that Telstra was refusing to supply me with any more FOI documents because I had given sensitive FOI documents to the Australian Federal Police to assist their investigations into Telstra’s interception of my telephone conversations. This was when I realised that the arbitrator was far from independent. I received not one single response concerning these threats – from neither the arbitrator nor the TIO.

Thus, the threats became a reality. What is so appalling about the withholding of relevant documents is that no one in the TIO office or government has ever investigated the disastrous impact this had on my overall submission to the arbitrator. Material, which could further support my claims before the arbitrator, was denied me.

Furthermore, when Telstra carried out these threats, Dr Hughes covered up this up, as well as the withholding of these discovery documents, when writing to Laurie James, president of the then Institute of Arbitrators Australia, on 16 February 1996. Dr Hughes stated my not-received 24,000 FOI documents were received and read by either him or the arbitration resource unit. There was no mention in that letter that Telstra had not supplied the requested Portland/Cape Bridgewater telephone exchange logbook, which was requested under FOI and through the process of discovery. The truth surrounding these 24,000 not-viewed FOI documents can be obtained by clicking onto our Prologue page. Dr Hughes was aware Telstra had not released this important document – namely the Portland/Cape Bridgewater telephone exchange logbook, which had all the working notes of all my telephone complaints and those of other local Telstra subscribers for the period of my claim. This logbook could not be refuted, yet Dr Hughes would not request this document for me. Even though the Commonwealth Ombudsman’s office also requested this logbook to be supplied, it was unable to obtain it. (See Home Page File No 10 -A to 10-B)

The logbook in any telephone exchange has all entries by technicians who are appointed on a daily basis to locate and fix problems in the region. Not supplying this document under the legal request of discovery, by the opposing side, should have been investigated by the arbitrator: why would Telstra not release it, even to the arbitrator under confidentiality?

It is blatantly obvious the ‘establishment’ that controlled my arbitration process, also denied my rights as an ordinary citizen – an equal before the law – and ultimately deprived me the right of having justice run its due course. The arbitrator and the government (who at the time fully owned Telstra) should have initiated an investigation into why an Australian citizen, who assisted the AFP in their investigations into unlawful interception of telephone conversations, was disadvantaged during a civil arbitration process.

The Log Book

A second maters pertaining to the logbook which we have discussed above is also linked to the billing issues which AUSTEL allowed Telstra to address after the arbitration process. Had this logbook been received during the arbitration process it would have also exposed Telstra had a systemic billing problem linked to the lockup problems affecting my service and other services routed off of the Portland AXE Ericsson exchange.

p100[1]

It has now been established (see below) AUSTEL allowed Telstra to address the lockup problems and other faults in secret, five months after my arbitration was declared over. This meant that it was outside the legal arena of the arbitration process, and therefore denied me the legal right to challenge Telstra. Although the resource unit told the arbitrator and the ombudsman about the ongoing problems on 2 August 1996, they were never investigated during my arbitration. These ongoing problems held both my fax and free-call lines open after I hung up. Therefore: (1) when the line did not release, I was wrongly billed for call time I didn’t use and (2) with the line in lockup mode, customers could not ring in. This problem almost drove the new owner of my business to suicide in 2007 – more than 12 years after 16 October 1995. The regulator allowed Telstra to address these faults outside the arbitration process (see Main Evidence File No 23 Part 1 and File No 23 Part 2). Is this why Telstra wanted us locked down into a legal structured path, because they had friends within the government who would allow Telstra to address the more important documents in private?

Chapter Eight

An Honest Arbitrator?

Doesn’t a truly independent arbitrator investigate the personal integrity of a claimant and whether the version of events he or she presents is a truthful and valid account of such? Why would an arbitrator ignore letters he received from the government communications regulator referring to concerns raised in their correspondence to the arbitrator? In essence: if the claimant was correct in his assessment, then others would also be suffering similar problems. A qualified arbitrator should at least investigate one of the many billing problems logged by the claimant. For example, one of those faults, not only locked up service lines after every terminated call, but as stated, those calls were billed for even though they never connected.

It is clear a letter from the regulator to the arbitrator, dated 8 December 1994, indeed did raise those issues of concern (see Arbitrator File No/94). The reason why the arbitrator did not respond to that letter, or others similar, is because the arbitration resource unit concealed those letters from the arbitrator, as Arbitrator File No/53 shows. Has not one of the most undemocratic situations been allowed to take place? Citizens being forced to undergo an intense legalistic arbitration process that addresses the worst of the claimants’ evidence with the government communications regulator in secret, despite it being supposedly conducted according to the rule of law? What other situation could possibly be as corrupt as an Australian arbitration process conducted in this manner?

12 December 1994: Telstra submitted their defence of my claims, a defence that relied on reports known to be fundamentally flawed and evidence that had been fabricated. The main defence document appears correct to the casual, uninformed observer; but much of the information that the arbitrator accepted was, at best, inaccurate and, at worst, deliberately fabricated. The arbitrator, together with whoever helped him to prepare the technical findings in his award, knew they were making a determination based on information manufactured with the intent to pervert the course of justice.

Once again, this is fact, supported by many exhibits on absentjustice.com. In his arbitration witness statement, a technician swore under oath that his SVT tests at my premises had achieved a 98.8% success rate, even though AUSTEL had informed him that the tests were deficient (see Main Evidence File No/2) and therefore could not have reached the 98.8% call completion rate required by the government communications regulator. The arbitrator, being aware of these deficiencies, was duty bound to note in my award that Telstra had not been able to complete their mandatory testing process at my business.

This one fact alone – an invalid testing process – would have changed the whole outcome of my arbitration process.

Conspiracy to pervert the course of justice continues 

It is also important to note that False Witness Statement File No 17-A, a letter dated 16 January 1995, that I wrote to the arbitrator, was sent with a page from my Telstra telephone account attached, and two particular incoming calls highlighted, both to my 008/1800 number on 13 January 1995.  These two calls indicate that the first call recorded as starting at 11:50 am, could not have continued for the 9:49 seconds with the next call coming in at 11:57 seconds and lasting for 42 seconds. This means, of course, that I could not have answered the 42-second call at 11.57. This is the same example documented by Darren Kearney (see above) in his mini-report at False Witness Statement File No 17-b at Example 22, and it is also the actual account that I provided to the arbitrator at

False Witness Statement File No 17-C is a three page Telstra file note dated 16 January 1998, that was prepared by Telstra’s Lyn Chisholm and Phil Carless.  It discusses an investigation that was carried out at my holiday camp in Cape Bridgewater on 14 January 1998 (Thirty-Three Months) after my arbitration and which was the first time that any Telstra-organised testing took place after the end of my arbitration on 11 May 1995; for that matter, this was also the first time any interview took place after the end of my arbitration in relation to my claims of ongoing RVA, 008/1800 billing. Paragraphs 5 to 9 on the second page of this document discuss examples that I had provided to Telstra, which indicated where Telstra’s own Call System Analysis System (CCAS) data records showed that Telstra was still incorrectly charging my 008/1800 account for calls that were not answered, a fault that is clearly acknowledged in Paragraph 9, which states:

“I note that the examples given by Alan Smith at the meeting spanned the period of the Arbitration and after the conclusion of the Arbitration.”

In simple terms, here is a document, prepared by Telstra, thirty-three months after the official end of my arbitration, admitting that my evidence shows that the billing/008/RVA faults that should have been addressed before my arbitration concluded on 11 May 1995 had, instead, continued to occur long past that date.

False Witness Statement File No 17-D includes two separate letters, both dated 10 February 1999 and both from John Pinnock (the TIO and administrator of my arbitration), one addressed to Mr David Hawker MP, my local Member of Parliament, and the other addressed to Mark Dunston, Department of Communications Information Technology and the Arts, advising them both that the 008/1800 billing issues I had raised in my arbitration were still under investigation.  I have, however, still not been provided with the results of that investigation. What I can say with certainty, however, is that, if Telstra’s ‘Jokers’ had not lied under oath during my arbitration, the ongoing 008/1800/RVA/billing problems would have been addressed as part of that arbitration, way back in 1994/95.

I ask the reader to take into consideration the following statement made by the arbitration technical consultants which stated in their official completed report regarding these 008/RVA billing non-addressed faults (see Prologue page Chapter One which 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’.”

How can you have a completed arbitration process when the main arbitration claim (a recorded message wrongly telling the caller that the business they are calling is not connected to Telstra’s network? Why did DMR & Lane the official arbitration technical consultants NOT diagnose the fault causes for Telstra telling callers to my business that my number was not connected?

One does not have to be a Rhodes Scholar to be able to calculate the difference between callers to a business hearing a recorded message stating, “the number you are calling is not connected” over a 16-day period, and the immense damage caused to the same business by callers hearing this message over a number of years. These types of complaints, raised during my arbitration, were ignored and, in most cases, NEVER investigated.

Clearly, if just one of those SEVEN Telstra employees, or one of AUSTEL’s bureaucrats who helped to prepare AUSTEL’s adverse findings against Telstra (see Manipulating the Regulator), had come forward back then, and admitted to the arbitrator that the faults that had brought me to the arbitration were still affecting the viability of my business, the arbitrator could not possibly have come to the conclusions he recorded in his findings without including a provision regarding the ongoing problems.  My arbitration was, after all, covered by the Victorian Commercial Arbitration Act 1984, see link > [PDF] Commercial Arbitration Act 1984 which includes a clause that allows for such flow-on problems, if they could not be fully arbitrated on at the time.

False Statements Continue 

A sworn witness statement is supposed, to tell the truth. The statement made by Telstra’s most senior managers in charge of my 1992 commercial settlement (see Front Page Part Two 2-A) who we shall call Joker Four’ includes the statement:

“During the negotiations, Mr Smith provided various letters and documents in support of his position and made claims as to the extent of the financial loss which he had allegedly suffered to his business. Although my own opinion was that the claims Mr Smith was asserting against Telecom and the effect on his business were exaggerated it was determined to resolve all matters involving Mr Smith on the basis of the offer made and to be accepted by him.”

Yet, the following statement, taken out of FOI folios C04007 and C04008 and headed Telecom Secret, which this person had in her possession on the day of the settlement, states:

“Legal position, Mr Smith’s service problems were network related and spanned a period of 3-4 years. Hence Telecom’s position of legal liability was covered by a number of different acts and regulations. … In my opinion, Alan Smith’s case was not a good one to test Section 8 for any previous immunities – given his evidence and claims. I do not believe it would be in Telecom’s interest to have this case go to court. (See Front Page Part Two 2-B)

The handwritten statement on the bottom of folio C04008, which is signed by this person (I have masked the signature of ‘Joker Four, states:

“These are the pre prepared notes recorded at the time of settlement.”

What this person’s witness statement confirms, i.e., “These are the pre-prepared notes recorded at the time of settlement,” is that on the day of the settlement she had documents C04006, C04007 and C04008 in her possession. These three documents confirm my phone service suffered for several years and yet her witness statement states quite the opposite; she knowingly supplied the arbitrator false information on 12 December 1994.

What is so disturbing about this witness statement is, at points 3.3 (a) and 7.14 in his award on this particular matter, the arbitrator states in words to the effect that Telstra conducted this 1992 settlement in a proper and just manner. Yet, AUSTEL’s adverse finding on this same settlement at points 31 to 34, 47 and 183 and 202 to 206 condemns Telstra for the unethical manner in which it conducted that settlement process.

Had AUSTEL not concealed its adverse report, but rather told the relevant communications minister and the arbitrator the truth concerning its knowledge of that settlement then the arbitrator’s award would have been substantially higher than it was.

In other words, even though SEVEN false witness statements do not coincide with AUSTEL’s Adverse Findings the government who endorsed my arbitration has so far refused to order Telstra to withdraw those seven witness statements.

15 December 1994: Due to the many complaints raised by Alan and various other  COT Cases concerning the many deficiencies in Telstra’s SVT process AUSTEL appointed Dr Rumsewicz’s a prominent technical consultant in which he notes in his report Exhibit SVT 38-a that:

 [P5] It is important to note that these dropout rates refer only to switch related causes and do not take into account the possibility of transmission facility failure (for example, due to high error rates or cable cuts). Such factors would need to be considered in the final specification of call continuity grade of service targets.”

[p12]We believe that given the stated purpose of the Service Verification Tests supplied in the Telecom Australia Customer Fault Procedures document (000 8410 and that of the AUSTEL Cot Cases Report, the statistical test being applied to the collected data is inappropriate. We believe that the analysis of collected data should be expanded to include an examination of call failures broken down by originating exchange, time of day and type of failure. In the event that correlations in the failures are found, further investigations, as appropriate, should be undertaken”.

IMPORTANT ISSUE

The COT arbitrations were facilitated by the Government Regulator AUSTEL.  Before the COT arbitrations began AUSTEL had already confirmed in the AUSTEL Cot Cases Report (Telstra Falsified SVT Report – SVT 33-b) that when previously dealing with COT claimants, Telstra’s conduct had been “…less that which might be expected of a model corporate citizen.” Therefore, AUSTEL should never have allowed Telstra during their arbitration procedure as the defendants (under any circumstances), to provide Dr Rumsewicz with the raw SVT data before it had been scrutinised by either the TIO-appointed technical consultants and/or arbitrator.

PLEASE NOTE 1: , Garry Dawson is another of the COT Difficult Network Fault (DNF) customers used by Mr Rumsewicz to determine the validity of Telstra’s Service Verification Testing process, yet (Telstra Falsified SVT Report – SVT 39) admits that Telstra and Bell Canada International had to abandon the SVT process at Garry Dawson’s premises because of equipment failure. The same equipment failure at Alan’s business on 29 September 1994.

Mr Benjamin’s letter to Graham Schorer, was in response to Graham’s previous letter to Steve Black on 15th December 1994, (see Telstra Falsified SVT Report), which notes on page 2 that:

“…I was aware that Telecom/Bell Canada International had abandoned tests on Garry Dawson’s telephone service last Friday, 9 December 1994, and the official reason given was that this new equipment does not like Australian conditions.”

PLEASE NOTE 2: Mr Rumsewicz’s report is dated 15 December 1994. Telstra and Bell Canada International abandoned the Dawson Service Verification Tests six days earlier, on 9 December. In his letter to Graham Schorer refer (Telstra Falsified SVT Report), Telstra’s Ted Benjamin admits that the Dawson tests were abandoned but does not refer to any repeat testing being undertaken between the 9 December (when the first test was abandoned) and 15 (when Mr Rumsewicz completed his report).  The 10 and 11 December – the first two days after the abandonment of the Dawson SVT process – were a Saturday and a Sunday, not normal working days, so it would have been inappropriate to run the testing on those days.  These leaves only three days – the 12 to the 14 – for Telstra and Bell Canada to locate SVT equipment that was compatible, carry out a second round of testing, and collate all the testing information from complex data, in time to provide it to Mr Rumsewicz, so he could include the test results in his report, which was submitted on 15 December.

It seems quite clear that the Dawson SVT process, like the SVT process carried out at Alan’s business, was fundamentally flawed.

The disappearance of the 24 January 1995 letter was no magic trick. My official arbitration request to the arbitrator on 23 January 1995 was directly related to the impracticable Cape Bridgewater Bell Canada International Inc. tests (see Telstra’s Falsified BCI Report ‘masked identities’). I had 24 hours to respond and did, with my request the following day 24 January 1995, asking for a copy of the Cape Bridgewater/Bell Canada information to be provided from Telstra, through the arbitrator. On 28 June 1995, the TIO stated, regarding the first (23 January) letter, “Our file does not indicate that you took the matter any further.” (See Home Evidence File No 4)

CENTRALEDELLARTE-cantodinatale4[1]However, Home Evidence File No/5),shows that, when my letter of 24th January 1995, returned to me three months after my arbitration was concluded. The fax footprint on page 2 (24-01-1995 15:12   FROM CAPE BRIDGE HDAY CAMP TO 036148730) indicates it was received at the arbitrator’s fax machine (number 036148730). So why did the TIO advise me his office records did not show that I send this most relevant letter? Was this information actually provided to the arbitrator? Did he fall asleep on the job? ?

As has been shown below in Chapter Sixteen, had the arbitrator followed up on my requests for the Cape Bridgewater/Bell Canada test information from Telstra, and had Telstra supplied the information I was legally entitled to through the arbitration process, I could have proved, as I have now shown in our Telstra’s Falsified BCI Report ‘masked identities‘ Bell Canada International could not possibly have generated the alleged 13,590 tests calls through the Tekelec CCS7 monitoring (testing) system at the Bridgewater RCM exchange.

This system that Bell Canada and Telstra allege was installed at the Cape Bridgewater RCM exchange specifically to filter those incoming tests calls, did not exist at the Cape Bridgewater exchange at that time in 1993. Telstra technicians currently stationed at Portland can confirm that the nearest Telstra exchange that could facilitate a Tekelec CCS7 Monitoring System back in November 1993 was the Warrnambool exchange (a rural town in Victoria), which is 116 kilometres from Cape Bridgewater. A 29-year-veteran Telstra technician and renowned Telecommunications expert, Brian Hodge BTech. MBA (B.C. Telecommunications), in his report on 27 July 2007 (see Main Evidence File No 3) also confirmed that no such testing was ever undertaken at the Cape Bridgewater RCM exchange as recorded in the BCI report. Had the arbitrator accessed this vital one piece of evidence, it would have given credence to my claims that the phone and faxing problems were ongoing. However, the arbitrator found in favour of Telstra. He only investigated older anecdotal fault complaints and by doing so, allowed the ongoing problems to continue for more than a decade after my arbitration was declared over.

The government communications regulator, AUSTEL, in its April 1994 COT Cases Report, at point 1.19, states:

“An agreed standard of service against which Telecom’s performance may be effectively measured is being developed by Telecom in consultation with AUSTEL. Such standard together with a service quality verification test which can be applied to any case subject to settlement are essential.” 

Warwick Smith (administrator to the arbitrations) advised the four COT cases that if they signed for the TIO-administered arbitration, then the arbitration appointed technical consultants, DMR Group Australia Pty Ltd, would ensure all arbitration technical issues, such as the arbitration service verification tests (SVTs), was conducted according to the government communications regulatory requirements. After all, what was the point of the government-endorsed arbitration process if the faults were not fixed as part of the process?

What then transpired would have been laughable, if the results didn’t have such serious consequences. When the SVT arbitration process commenced at the premises of various COT cases, the TIO-appointed arbitration technicians were not party to the SVT tests: the arbitrator and AUSTEL allowed Telstra (the defendant!) to perform the SVTs with NO umpire from the arbitration process to judge whether the SVT tests took place or were performed according to the mandatory SVT process. The defendant asked the arbitrator to trust it and that is exactly what the arbitrator did – even though the COT cases were in arbitration precisely because Telstra lied to the government, for years, concerning just how bad the copper-wire network really was. What the four COT claimants did not know then however was that although DMR Group Australia Pty Ltd was not available during the first eleven months of the COT arbitrations, even though the official arbitration agreement that all four claimants signed in April 1994 clearly stipulated that DMR Australia Group Australia Pty Ltd had been appointed as the arbitration independent technical consultants. It was not until five months after Telstra had, they claimed, carried out the arbitration SVT process at my business premises, on 29 September 1994, that DMR Group Canada was commissioned (on 9 March 1995) as the newly appointed technical arbitration consultants for the four COT arbitrations. So was this eleven month delay in finding a technical consultant deliberately orchestrated perhaps, so that there was NO independent consultant around while Telstra fudged their SVT process?

As has been shown in our Prologue Chapter One DMR (Canada) and Lanes Telecommunications (Australia) who agreed to assist DMR knowingly allowed their draft incomplete Cape Bridgewater Holiday Camp technical report to be used by Dr Hughes (arbitrator) as the final technical report even though I had been complaining that no investigation into Telstra’s SVT process had been conducted and my phone problems that had brought me to arbitration was still apparent. As our Prologue shows regardless of these pleas Dr Hughes allowed the still incomplete DMR & Lane report to be disguised as a completed document after having removed the wording the my billing claim documents had still not been investigated.

If you view both Arbitrator Part Two Chapters seven to nine and Telstra Falsified SVT Report ‘unmasked identities’, you will find that even though I demanded that the Arbitrator investigate Telstra’s falsified SVT process at my premises, he ignored my evidence.  When I exposed these deficiencies to the Government Regulator on 2 and 10 October, 1994, AUSTEL wrote to Telstra asking what they intended to do regarding these deficiencies? Telstra’s response was to sign under oath, on 12 December, 1994 a statement attesting to performing all the Government Communications Regulatory requirements and stating the SVT process at my premises had exceeded those requirements.

SVT – Deception at its worse 

2 February 1995: AUSTEL’s letter and the attached COT Cases AUSTEL third quarterly report to the Hon Michael Lee, Minister for Communications and the Arts states:

“Service Verification Tests have been completed for seven customers. Reports have been completed and forwarded to six of the customers, and the seventh report is in preparation. All six of the telephone services subjected to the Services Verification Tests have met or exceeded the requirements established “. (See Open Letter File No/23 and  Open Letter File No/4 File No/5 File No/6 File No/7

It is also extremely important to link how AUSTEL withheld their findings from the Hon Michael Lee, MP, on 2 February 1995, regarding the deficient SVT conducted at my business with the way they also withheld information from the same minister regarding adverse findings (see Open Letter File No/4 File No/5 File No/6 File No/7) concerning my business losses. The faults that brought me into arbitration on 13 April 1994 were still affecting my service.It is important readers consider this quarterly report to the minister in light of the service verification letter. AUSTEL had already written to Telstra’s arbitration liaison officer on 16 November 1994 (see Main Evidence File No/2) advising that the SVTs conducted at the Cape Bridgewater Holiday Camp were deficient. AUSTEL asked Telstra what they intended to do regarding this deficiency in the testing procedure.

15 February 1995: This letter of mine, to the arbitrator, again raises the SVT problems:

“My previous letters to you in January 22nd and 26th also confirmed we were still experiencing problems with our service lines.

“As you are aware the verification testing was prepared in consultation with Austel and was to form the basis for determining whether the CoT cases individual telephone service was operating satisfactory at the time of our arbitration. Our previous statutory declarations confirmed the testing was not conducted as they should have under the agreed testing process.” (See Arbitrator File No/101)

I did not receive any response to this letter, nor did I receive any response to other documents faxed to the arbitrator that day. My fax account records a fax transmission that included either one or two pages, faxed from my office to the arbitrator’s office. Given the ongoing transmission issues, I rang ahead and asked that the arbitrator confirm when my fax was received. There is no arbitration record of the arbitrator sending me a letter concerning any document faxed to him that day. Like most of the submission documents that I faxed or sent by mail, this one was also just not answered. This leaves a lingering doubt: did it just not arrive?

I also discussed these lost claim documents issues with various senators when I was at Parliament House in Canberra, before I gave evidence regarding the Interception Amendment Bill, and Senator Barney Cooney was particularly shocked at what he heard. When that amendment bill was being discussed in Parliament, the 15 February 1995 letter was just one of many that I had received no response to.

The SVT process that Dr Hughes ignored

Sadly, Dr Hughes (arbitrator) ignored the promises AUSTEL (the then government communications regulator) made one week before we signed our arbitration agreements on 21 April 1994. The arbitrator went against an official government document, which states, under the heading Settlement and agreement on standard of service:

“As part of the general approach to settlement, Telecom sought AUSTEL’s agreement to, and assistance in, the development of a defined status for a telephone service. The intention is to obtain an agreement on the operational performance of the service against which parties might sign off once a financial settlement has been finalised.”

Both my partner Cathy and I provided individual statutory declarations to Dr Hughes, plus I provided three separate letters between 2 October 1994 to 15 February 1995, advising Telstra’s arbitration Service Verification Tests (SVT), conducted on 29 September 1994 at my holiday camp, were aborted as neither the local exchange nor my customer access network could accommodate the SVT equipment. (See absentjustice.com/Introduction File No/4-A to 4-K contain copies of the statutory declarations Cathy and I made on 3 and 4 March 2004. Introduction File No/4-L  and File No/4-M show faxes sent from my office to Dr Hughes’ office and the list of arbitration documents Dr Hughes received. My two statutory declarations, faxed to Dr Hughes’ office, are not listed as being received, regardless of the fax account showing they were sent.

Introduction File No/4-A to 4-B confirm that even though AUSTEL acknowledged, in its correspondence to Telstra’s Peter Gamble (dated 11 October 1994) and Steve Black (dated 16 November 1994), the SVT tests at my business were not performed according the mandatory SVT process. AUSTEL demanded answers, but no follow up testing was conducted. Introduction File Nos/4-C to 4-D confirm the SVT process was set up between Telstra and the government regulator in order to give the assessors and/arbitrators a view of the efficiency of COT cases’ telephone services.

Despite my pleas, and my technical consultant George Close’s evidence showing my business was suffering with a 49 per cent unavailable service on one phone line and a 52 per cent failure rate on the other, Dr Hughes still disallowed his technical consultants the time they required to investigate these still unaddressed faults (see Introduction File No/4-D).

Letters from AUSTEL to Telstra, prior to the SVT process, alerted Telstra that testing equipment set up at the local exchange and routed through to my business caused even more problems to my business (see Introduction File No/4-F).

The concealed Cape Bridgewater investigation report, conducted during my FTSP, by AUSTEL between January and March 1994 (see Open Letter File No/7) and prior to arbitration, even states, at point 212, that

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

The Call Charge Analysis System (CCAS) data in Introduction File Nos/4-F, dated 29 September 1994, shows the printout of the SVT tests generated through my three service lines 055 267267, 267230 and 267260. It is clear, to any telecommunications consultant, that the required 20 incoming test calls to each service line were not generated: not one of the mandatory 60 tests calls held the lines open for the required 120 seconds.

The attachments accompanying my reply to Telstra’s arbitration defence, which I provided to Dr Hughes in person and were never returned to me after my arbitration, confirm I challenged Telstra arbitration engineer Peter Gamble’s witness statement of 12 December 1994, in which he states he conducted the Cape Bridgewater Holiday Camp SVT testing and exceeded all of AUSTEL specifications. (See Telstra’s Falsified SVT ‘unmasked identities’) Dr Hughes’ award findings made NO comment on my challenge stating Mr Gamble perverted the course of justice when he submitted his report. Introduction File No/4-A and File No/4-B, the CCAS data (File No/4-F) and the falsified SVT information all confirm Mr Gamble mislead and deceived the arbitration process concerning the not-tested Cape Bridgewater Holiday Camp services.

The Senate Hansard (see Introduction File No/6) of 24 June 1997 confirms ex-Telstra employee, turned whistleblower, advised a Senate committee, under oath, that Peter Gamble was one of the two Telstra employees who told him the first five COT cases (and naming me as one of the five) had to be stopped at all cost from proving our claims.

The fact that Dr Hughes disallowed his own technical consultants the extra time they required to investigate my complaints of ongoing telephone problems, including my claims the SVT process was aborted, suggests Dr Hughes was clearly biased. My arbitration lawyers also thought the same (see Open Letter File No/51-C).

The Senate Hansard for 24 June 1997 (see Introduction File/No 3) shows Senator Schacht criticised Telstra for spending $18.8 million dollars, while it was government-owned, to defend 11 COT cases. He exclaimed this was a disgusting waste of taxpayers’ money, and implied something was unjust when the lawyers, arbitrators and mediators involved, all with reliable phone services, received that amount. In comparison, the COT cases received only $1.74 million, combined. My own arbitration forensic accountant valued my losses for the six-and-a-half- year period of my claim at more than the total figure the 11 COT cases received.

An arbitration letter, dated 21 September 1995, from Dr Hughes to the defendants (Telstra) shows he was working to a ‘terms of reference’ that was not included in the official arbitration agreement I and the other claimants signed.

It appears the arbitrators and mediators had an agenda worked out for them determining how much to pay out in damages, regardless of what the true value of the COT cases losses were. Chapters one to three in our Prologue page show the more lucrative of my two businesses – my over-40s singles-club losses – was never assessed. This evidence supports Senator Schacht’s Senate statement.

On 9 March 1995, after the Telstra Corporation had offered DMR (Australia), the arbitration technical consultants, an offer they could not possibly refuse and they pulled out of the COT arbitration process – leaving the COT cases stranded with no one in Australia left who they believed Telstra would not compromise. We four COT cases wanted to amend our claims and at the same time call for a halt until an honest technical broker could be found: impossible in the current situation with Telstra commanding power over most, if not all, of the technical consultants in Australia.

As a compromise, to avoid delaying the arbitration process, the TIO wrote to the four COT cases advising us Paul Howell of DMR Group Inc in Canada had agreed to be the principal technical advisor to the resource unit if we accepted Lane. David Read of Lane was ex-Telstra and therefore the COT cases should never have been placed in a position of having to accept Lane. We received many telephone calls and correspondence from the TIO, promising us that DMR (Canada) would be the principal consultants and assuring us our concerns would be looked after in this matter. Eventually, we accepted Lane as assistants to DMR,

It is quite obvious from the varying draft findings by Lane Telecommunications and the comparing of the DMR (Canada) and Lane Australia final report dated 30 April 1995, that Lane was secretly allowed to do all of the assessment to my arbitration claim material as well as conduct all site visits to the Portland and Cape Bridgewater telephone exchanges and my business premises. In effect, the TIO, those who took orders from him and the arbitrator, sold us out.

It is shown in Arbitrator Part-Two that  letter from the arbitration project manager dated 18 April 1995, advised the TIO, the arbitrator, and the TIO special 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.”

The four COT claimants were never told about these forces at work nor were we warned that, under the noses of the TIO, his legal advisor and the arbitrator, these un-named forces were allowed to infiltrate and manipulate the arbitration process. When these three legal experts, namely Dr Gordon Hughes, Warwick Smith and Peter Bartlett, allowed this very important 18 April 1995 letter to be concealed from the four COT cases, they directly assisted those “forces at work” to carry out their intended disruption of the four COT cases’ arbitrations. Had John Rundell copied his letter to the four COT cases, as he should have, we four would have had a reasonable chance of approaching the Federal Government, as the endorser of the first four Fast Track Arbitration Procedures, and, using this letter as evidence, to have the process reviewed and amended.

On 26 September 1997, John Pinnock, the second-appointed TIO, alerted a Senate estimates committee that “most significantly, the arbitrator had no control over the process because it was conducted entirely outside of the ambit of the arbitration procedures”. Had the COT cases received John Rundell’s 18 April 1995 letter and also been informed our arbitrations were being conducted entirely outside of the ambit of arbitration procedures, because 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 process abandoned.

The Senate was warned I received threats from Telstra because I assisted the Australian Federal Police. That Telstra carried out those threats should have been enough for the government to instruct the TIO that enough is enough. ((Senate Evidence File No 31)

The arbitration process was administered under the auspices of the Supreme Court of Victoria; it would have been appalled at the way Dr Hughes and Warwick Smith allowed Telstra to introduce these forces at work and manipulate the process.

Also in this 18 April 1995 letter the arbitration project manager states:

Any technical report prepared in draft by Lane will be signed off and appear on the letterhead of DMR Group Inc.” (See Arbitrator File No/17)

In 2002, I finally received a copy of this letter. It had a one-word, handwritten note in the margin, beside the instruction to imply the Canadian company had been involved in the investigation into my claims. Apparently, whoever wrote the note was startled at the skullduggery – the single word was “What?” The annotator recognised the technical resource unit should not have performed the investigation… but still allowed this cover-up to stand.

Worse if that is at all possible, in the 9 March 1995 letter from Warwick Smith (TIO) to me he noted:

“Messrs, Read and Souter will assist Mr, Paul; Howell of DMR Group In (Canada) in technical assessment under the Fast Track Arbitration Procedure. Mr Howell the principal technical advisor to the Resource nit will be in Australia within two weeks. The technical enquiries will commence on Thursday 16th March, 1995.

However, John Rundell, the arbitration project manager also advised the TIO that the director of the Canadian technical consultancy firm, appointed by the TIO as the Principal technical consultant and who was supposed to take charge of the technical side of the arbitration, arrived in Australia on 13 April 1995, not in March 1995 as promised by the TIO in his 9 March 1995 letter. Mr Rundell’s true colours were exposed when he stated any reports prepared by Lane (who we didn’t trust, as David Read was and ex Telstra employees ) would be signed off and appear on the letterhead of DMR Group Inc (the Canadian technical consultancy that we were sure we could trust).

In simple terms, all of the technical assessment of my claim had already been assessed by the time Paul Howell had arrived in Australia.

Back to the (Interception) Amendment Bill 1994.

21 March 1995: The Legal and Constitutional Reference Committee and Legislation Committee requested Graham Schorer, another COT member (name withheld) and I, to submit evidence confirming Telstra had intercepted our telephone conversations, at Parliament House, Committee Room 2S1, in Canberra. This submission by the COT cases formed part of the Telecommunications (Interception) Amendment Bill 1994. Just prior to my providing this evidence to the committee, I had a conversation with a Detective Superintendent (Jeff Penrose) of the AFP who was attending this meeting as an observer. I asked this AFP officer if my provision of this interception evidence to the committee would interfere with the present AFP investigations into my interception issues. This AFP officer advised it would not. During this committee meeting, the visibly distraught [COT member] told of how he became aware that Telstra technicians had intercepted his telephone conversations while he worked as a consultant providing confidential, highly personal, counselling. My evidence and proof concerning interception is on record and confirms at least one Portland technician monitored and listened to my phone conversations.

30 March 1995: Page two of a report prepared by the arbitrator’s own resource unit (FHCA) for the TIO includes:

“Smith continued to ‘drip feed’  lodgement of his claim documents based on the fact that Telecom ‘drip fed’ his FOI requests (this culminated in a complaint to the Commonwealth Ombudsman and a subsequent FOI review by Telecom). …

On 13 December 1994, Telecom delivered its defence to the Arbitrator.

“Smith 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 the ability to examine these documents and add to his claim.” (See Arbitrator File No/45)

FHCA also states:

“Most of the allegations are unsubstantiated and many are not verified by statutory declaration. …

“The magnitude of faults complaints reported is unsubstantiated and appears overstated.”

Had AUSTEL not concealed their more adverse findings against Telstra, FHCA would not have considered that most of my allegations were unsubstantiated or appear overstated. These statements were entirely incorrect, as AUSTEL knew:

“Cape Bridgewater Holiday Camp has a history of service difficulties dating back to 1988. Although most of the documentation dates from 1991 it is apparent that the camp has had ongoing service difficulties for the past six years  which has impacted on its business operations causing losses and erosion of customer base” (See Point 209, Open Letter File No/7). 

The FHCA statement that my “faults complaints reported is unsubstantiated and appears overstated” is one of the more sinister statements to come from them. My comprehensive log of fault complaints, which my claim advisors Garry Ellicott and Barry O’Sullivan (now Senator Barry O’Sullivan) attached to my principal submission, was supported by more than 70 separate testimonials from various clients and tradespeople, who had personally experienced the ongoing telephone and faxing problems still haunting my business. Had AUSTEL actually investigated some of these testimonials, as discussed in their 69-page covert report (refer Open Letter File No/4 File No/5 File No/6 File No/7,) they would have found these complaints more than substantiated. As we show in Part Two of the Arbitrator, TIO-appointed technical consultants advised the arbitrator on 30 April 1995 (refer Part Two ) that: “A comprehensive log of Mr Smith’s complaints does not appear to exist.”

FHCA concealed the comprehensive log of my fault complaints and prevented it from being investigated during my arbitration process; that act of deceit effectively sabotaged any chance I had of restructuring my business. This part of our story continues

Chapter Nine

A Comprehensive Log Of Fault Complaints

A letter 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.”

. . . .

Any technical report prepared in draft by lanes [the Australian technical consultants that the COT Cases mistrusted] will be signed off and appear on the letterhead of (See Arbitrator File No/17)

In 2002, I finally received a copy of this letter. It had a one-word, handwritten note in the margin, beside the instruction to imply the Canadian company had been involved in the investigation into my claims. Apparently, whoever wrote the note was startled at the skullduggery – the single word was What followed by an question mark. Well we might all ask, What? The commenter recognised that the technical resource unit should not have performed the investigation… but still allowed this cover-up to stand.

NONE of the four COT claimants were ever told about these forces at work nor were we warned that, under the noses of the TIO, his legal advisor and the arbitrator, these unnamed forces were allowed to infiltrate and manipulate the arbitration process. Three legal experts appeared to note nothing out of the ordinary or any illegalities, while the lives of the four COT cases were held to ransom by these STILL unnamed forces.

In this 18 April 1995, letter the Project Manager advised the TIO (see Arbitrator File No/17) that the Director of the Canada technical consultancy firm appointed by the TIO as the Principal technical consultants who was to take charge of the arbitration technical-side of the operation arrived in Australia on 13 April 1995. He worked over Easter Holiday period, particularly on the Smith claim where the Project Manger’s true colours were exposed when he noted:  Any technical report prepared by draft by Lanes (the TIO-appointed Australian consultants) will be signed off and appear on the letterhead of DMR Group Inc [the Canadian technical consultancy the COT Cases trusted].

Prior to Arbitration

The COT cases were fully aware of Telstra’s corporate power over most of the Technical Telecommunication Consultants in Australia.  Our research showed that DMR Australia were possibly the only organization within Australia (because of their affiliation with off shore telecommunication services) that would handle our matters independently.  We agreed to accept DMR Australia as the independent arbitration Technical Consultants.  For reasons unknown to the four COT Cases, at the last minute (ten months into the arbitration process), the COT Cases were informed in February 1995, that DMR Australia could not assist the Arbitrator in assessing the COT claims.

Lane Australia was then offered to the four COT Cases.  After our research, it was uncovered at least one of the Senior Partners were ex-Telstra and that Lane had worked on Government Projects – therefore, they were considered inappropriate. Under pressure from the TIO, the COT Cases accepted DMR Inc. Canada (only if they were the principal Technical Consultants).  Warwick Smith’s 9 March, 1995 letter to the COT Cases Introduction File No/1-A to 1-G shows we were promised DMR Inc. Canada would be the principal Consultant

All the official draft Lane technical report findings, shown in their report of 6 April 1995, were prepared seven days before Paul Howell of DMR Inc Canada came to Australia on 13 April 1995. The same findings were used in the final DMR and Lane formal report of 30 April 1995. Lane was the principal consultant and DMR Canada was brought to Australia to sign off the Lane report, which didn’t investigate any ongoing problems still affecting my business. The RVA (recorded message fault), advising customers they had dialled the wrong number, was never investigated.

Dr Hughes only addressed anecdotal historic fault complaints – not faults still affecting my business. Garry Ellicott, who prepared my arbitration claim, is an ex-senior Queensland police officer as well as an ex-National Crime Authority officer (with credits). Mr Ellicott reported his own RVA issues when trying to contact my business while preparing my arbitration claim. Letters from AUSTEL to Telstra, dated 4 October 1994, Telstra’s response, on 11 November 1994, and AUSTEL’s letter to Dr Hughes, on 8 December 1994, all concern Garry’s problems in trying to reach my business on 27 May 1994 (See Open letter File No/46-A to 46-l). Telstra’s letter to Dr Hughes, dated 16 December 1994 (Open letter File No/46-J to 46-l), asks how he wishes to address these ongoing problems. Resource unit member Sussan Hodgkinson sent a memo, on 2 August 1996, to Dr Hughes (copied to the TIO office) admitting to the existence of these letters (see Open letter File No/45-A to 45-I).

Five months after my arbitration was prematurely concluded, without having addressed any of my ongoing billing claim documents, the government communications regulator, AUSTEL, wrote to Telstra (copied to John Pinnock), on 2 October 1995, advising the Cape Bridgewater Holiday Camp billing issues remained unaddressed (see Open letter File No/46-K). On 16 October 1995, AUSTEL allowed Telstra to address the RVA faults, which, in turn, became billing problems, that Garry Ellicott originally raised on 27 May 1994. Allowing Telstra to address these arbitration issues, outside of the arbitration, denied both Garry and I the legal right to challenge Telstra’s response. If this is not democracy gone horribly wrong then what is?

The arbitrator’s draft award, on page three, states:

“…pursuant to paragraph 8 of the arbitration agreement, I had power to require a ‘Resource Unit,” comprising of FHCA, and DMR Group Australia Pty Ltd, to conduct such inquires or research as I saw fit;

On 21 February 1995, by the time I was satisfied that the submissions of all relevant material by both parties was complete, I instructed the Resource Unit FHCA (and, through them DMR) to conduct certain inquiries on my behalf’ (AS 164).

The Arbitrators’ final award modifies these points so that they read:

“…pursuant to paragraph 8 of the arbitration agreement, I had power to require a ‘Resource Unit’ comprising FHCA Accountants, and DMR Group Australia Pty Ltd, to conduct such inquires or research as I saw fit. By consent of the parties, the role of DMR Group Australia Pty Ltd was subsequently performed jointly by the Canadian technical consultancy group and the Australian consultants;

“On 21 February 1995, by which time I was satisfied that the submissions of all relevant material by both parties was complete, I instructed the Resource Unit FHCA to conduct certain inquires on my behalf(AS 165).

Summary of document (AS 160) to (AS 165):

The technical findings in both the draft and final awards (except for the removal of the billing issues, which needed weeks to investigate) are mirror copies of each other. However, in the draft award, the writer states he called on the DMR Group Australia Pty Ltd to conduct inquiries by 21 February 1995. DMR Group Australia Pty Ltd resigned from the arbitration process months prior to this date.This Canadian consultancy firm and the TIO-appointed consultants were not officially appointed by the TIO until 9 March 1995 and/or officially accepted by letter of consent (see Arbitrator File No/24).The Canadian company did not receive any of the technical claim and defence material until 21 March 1995 (see Arbitrator File No/22).

So who provided the arbitrator with the technical information he used in determining my award? Why did he only address anecdotal or historic phone problems, rather than the ongoing faults provided by my claim advisors Garry Ellicott and Barry O’Sullivan (now Senator Barry O’Sullivan) to the arbitrator in their comprehensive log of my fault complaints?

Two Conflicting Reports, Both Dated 30 April 1995

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.

old_book_2-t2[1]

The arbitrator states, in his 12 May 1995 letter: “…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” (See Open Letter File No 55-A)

Could the loss of my comprehensive log of my fault complaints have anything to do with the arbitrator deciding not to proceed with my matters any further? Was the arbitrator aware of the existence of the log? The arbitrator allowed the next three claimants between 13 and 36 months longer than he had allowed me, in which to finalise their claims.

This failure to supply the technical resource unit with a comprehensive log of my fault complaints severely disadvantaged my whole claim. I approached my claim advisors, Garry Ellicott and Barry O’Sullivan, during my designated arbitration appeal period and asked them to itemise their cost for sending so much material from Queensland to the arbitrator in Victoria, but they were unable to do so. I had hoped an itemised breakdown of those costs, this revision of the facts, could have provide some proof as to what documents were freighted from Queensland to the arbitrator’s Melbourne office.

Although today, we now have proof that such a comprehensive list of my fault complaints was sent by my claim advisors – it was later provided to me by the arbitrator’s office in August 1995 – the special appeal period had well and truly expired.

Consider:

  1. Why did the TIO-appointed arbitration technical unit state in their 30 April 1995 report that “A comprehensive log of Mr Smith’s complaints does not appear to exist” when my claim advisors Garry Ellicott and Barry O’Sullivan submitted a full chronology numbered as evident on pages 11, 12 and 22 in their reply to Telstra’s Interrogatories (see Arbitrator File No/91).
  2. Why did the TIO arbitration resource unit advise the new TIO on 15 November 1995, six months after my arbitration was over, that the billing issues I raised were not addressed in arbitration because they were not submitted until April 1995 (see Arbitrator File No/34A)? Yet, their correspondence to the arbitrator (and copied to the TIO on 2 August 1996) show these billing issues discussed by the resource unit in December 1994 (see Arbitrator File No/53).
  3. Why did the research unit arbitration project manager, in this 15 November 1995 letter, also state: “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.”? Yet this letter proves beyond all doubt these ongoing unaddressed billing faults were left “open”.

Canadian and Australian consultancy report 

The 23 findings included in the TIO-appointed technical consultants report draft report (inadvertently provided to me three months after the end of my arbitration) are exact duplicates of the findings in the final 30 April 1995 Canadian and Australian consultancy report provided to me by the arbitrator, but that so-called ‘final version’ had NOT been signed off.

Why did I have to wait until 16 August 1996, 15 months after the end of my arbitration, before I finally received a copy of a covering letter apparently provided by the Canadian consultancy firm to the arbitration project manager, on 30 April 1995, in relation to the final version of the 30 April 1995 draft report? And I only received that covering letter from the TIO who advised me that:

“…the Arbitrator was not obliged to forward a copy of this covering letter to you, as it did not, strictly speaking, form part of the Technical Evaluation Report. However, in the interest of alleviating your concerns, I now enclose a copy of [Canadian consultant]’s covering letter”. (See Arbitrator File No/25)

Neither the arbitrator, the TIO, nor the arbitration project manager have ever explained why the formal technical report supplied to the arbitrator and then copied to me was not signed off, or why the covering letter, allegedly written by this Canadian technical consultancy firm, was not produced until 15 months after my arbitration was declared. Unbeknown to the TIO, the Canadian consultant had already spoken directly to me, on 31 May 1995, (see my partner’s diary note, Arbitrator File No/26) advising that he didn’t sign off on the report because it was NOT FINISHED at the time it was submitted to the arbitrator, myself and Telstra for their official comments. My statutory declaration dated 23 February 2006 to Liberal Government Department of Communications, Information, Technology and the Arts (DCITA) assessors in February 2006 advised them of this phone call. It also advised them issues surrounding the two conflicting technical reports, which we have discussed above and below.

The Book Of Shadows[1]

How can two identical technical reports with the same twenty-three technical assessments, both dated 30 April 1995 and both apparently 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” and the other without any mention of it still being open and needing weeks to complete?

There are two conflicting lists of the technical and defence arbitration material received by the TIO-appointed technical consultants to assess during my arbitration (see Arbitrator File No/31 & 32). The lists are almost identical, except that the arbitrator’s version does NOT refer to the billing claim documents that my claim advisors sent from Queensland. Page 27 from the arbitrator’s version lists less than a third of the material my claim advisors Garry Ellicott and Barry O’Sullivan submitted to the arbitrator.

Arbitrator File No/32 is page 40 from the final version of the report that I received during my arbitration – it includes 14 more sets of claim documents than what is on the list contained in Arbitrator File No/31.

Garry Ellicott and the Hon Barry O’Sullivan

I am sure, even after the misunderstanding I had with my two arbitration claim advisors, Garry Ellicott and Barry O’Sullivan, that these two fine gentlemen will now understand why it was so important for me to have an itemised record of the various costs involved in sending documents from Queensland to Victoria, throughout my arbitration.

What would have happened in August 1995 if I had been able to prove, not only the actual existence of a detailed, chronological list of all the ongoing telephone fault complaints that I had lodged with Telstra, but also the exact date that it was mailed to the arbitrator! That would have meant that all my claim documents would have to be examined and investigated before the end of my arbitration. What would the arbitration project manager have done then?

The following information, under the heading Important Comparisons, is just one example from a long list of crimes connected to my arbitration, and it is the combination of those criminal activities that has destroyed the last 20 years of my life and that of my partner.

Important Comparisons

The list of documents (see Arbitrator File No/22) the arbitration resource unit sent to Canada for assessment does NOT include a comprehensive log of my fault complaints, although it does include 10 volumes of Telstra’s defence documents to address the three bound volumes of my claim documents (instead of the 17 that should have been sent).

Arbitrator File No/31 also confirms that no comprehensive log of my fault complaints was assessed, either in Canada or in Australia. None of the numbered claim documents that Garry Ellicott and Barry O’Sullivan submitted were assessed either.

 Arbitrator File No/32 is a list of claim documents numbered SM2, SM16, SM 17, SM20, SM21, SM45, SM46, SM47, SM48, SM49, SM50 and SM53. These documents are missing from Files No 22 and 31. This document illustrates Barry and Garry’s numbering system and shows that, on my behalf, they sent the arbitrator another seven folders that included documents numbered 1-200, 200-400, 400-600, 600-800, 800-1,000, 1,0001289 and 2,0012,158, i.e. a total of 2,158 documents, further to the other documents labelled as SM.

Both of these almost-identical reports are dated 30 April 1995. However, one was supposed to be a draft version and the other was supposed to be the final version. How can one include a list of 17 bound submissions, examined by the technical consultants, while the other lists only three; but both versions state that the same 4,000 documents were examined? These reports indicate that every single one of the extra 3,000 documents were apparently assessed on 30 April 1995, the day that both the reports were dated, which is clearly not even remotely possible.

An Exercise in Logic

If one version of the report shows that there are 14 sets of claim documents (3,000 more documents to be assessed as well as the other version) apparently produced on the same day, and notes that those documents were properly assessed, how could the resource consultants have assessed 3,000 extra technical documents in the space of one single day?

einsteinshow[1]

As an exercise in logic, let us assume consultants from the Canadian and Australian consultancies were able to assess, collate and understand the relevance of those 3,000 technical documents in the one day available. Where are the results of that phenomenal assessment? There are no references to assessments of the billing documents in the so-called ‘final’ version of the report and/or draft report. The only reference to billing issues in the arbitrator’s version indicates the need for extra weeks to assess my billing claim documents – making it blatantly obvious that the Canadian and Australian consultants were not able to magically assess, collate and understand the relevance of those 3,000 billing claim documents at all.

Obviously, it is not humanly possible to read all 3,000 documents even briefly, let alone check complex calculations too.

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 or more 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.

There is no mention, in any correspondence provided to the Canadian or Australian consultants, of Telstra’s threats or the carrying out those threats by not providing me with the FOI documents I requested because I assisted the AFP’s investigation into Telstra’s unauthorised interception of my telephone conversations. This decision seriously disadvantaged the whole preparation of my arbitration claim.

Why didn’t the arbitrator and TIO initiate an investigation into how an Australian citizen (me) could be so disadvantaged during a civil arbitration process, simply for carrying out his civil duty; assisting the AFP with their investigations into Telstra’s unauthorised interception of my telephone conversations?

None of the important claim documents in those 14 folders were assessed or defended by Telstra in Australia, or assessed by DMR Inc. in Canada. As noted above, my sincere hope now is that the senator will now see why I was so angry when neither he nor his colleague seemed able to provide records to show the arbitrator that the arbitration technical unit’s comment that: “A comprehensive log of Mr Smith’s complaints does not appear to exist” was actually incorrect.

The truth of what was done to me by the arbitrator and technical consultants is firmly embedded in these two conflicting reports. All that is needed is for one government official to start asking questions upon reading absentjustice.com so the truth surrounding these two conflicting reports will finally be revealed.

The Deception Continues

oldbaileydeath[1]

It seems, from the many inaccuracies in the conflicting technical reports that the arbitrator based his findings on, that a second and possibly even a third party was involved in preparing these reports and it certainly seems that the draft and final versions of the award were prepared by someone who heavily favoured the defence. The hand-written notes in the draft version indicate that the findings did not come from the arbitrator. So, who was the mystery person (or persons) who supported Telstra and provided these inaccurate pieces of information to the arbitrator? Who was really in charge of the arbitrator?

Upon reading the arbitrator pages and attachments, one has to ask why. Why would an arbitrator, a lawyer who is internationally recognised as a specialist in his field, two TIO’s (also highly respected in their chosen professions) and the arbitration project manager, allow all that has been revealed here on absentjustice.com to have happened?

And to think that this man still advises the Australian government on legal matters! No wonder the government will not properly or honestly investigated my matters.

Chapter Ten

It is well documented that I continued to complain about phone and fax problems throughout and after my arbitration, including complaints to local technicians regarding the phone alarm system and associated wiring installed by Telstra during ELMI monitoring of my service lines in 1991-1992.

During a site visit on 6 April 1995, the arbitration technical consultant, Telstra’s chief engineer and I, inspected the exchanges at Cape Bridgewater and Portland and met with the local technician (who denied a local farm agent also had problems with his phone, although the FOI documents exposed the agent’s complaint records).

With the technical team in Cape Bridgewater, I asked the TIO-appointed arbitration technical consultant and Telstra’s engineer to look at the wiring issues and some of the evidence I had proving there was incorrect billing on all my phone lines. The arbitration technical consultant made it quite clear that the arbitrator had ordered him not to assess any new evidence or claim material during his site visits. (The arbitrator later confirmed these orders in a 17 February 1996 letter to the president of the Institute of Arbitrators.)

Naturally, I was irate because most of this late received FOI documentation on 23 December 1994 and early 1995, had originally been requested in December 1993. This was a complete turn-around by the arbitrator who had assured me that if I discovered any new information among late received FOI documents, that information could be presented to the technical resource unit when they came to the camp. I had burned the midnight oil night after night to have this evidence prepared before the technical team arrived and it was clear that all this new information would further support my allegations of ongoing problems. I was so angry. I managed to have the arbitration technical consultant look at one document while the Telstra official was still there. This was a copy of part of my 1800 call account. How, I asked, could I be charged for a 9.49 minute call on 13 January 1995 at 11.50 am, and then for a 42 second call at 11.57 am? It is certainly not possible to have two calls overlapping on the same line at the same time.

Incorrect charging was running rampant through Telstra’s 008/1800 network, just as my telephone account showed. Neither Telstra’s engineer or the TIO consultant were prepared to comment on this evidence at the time, although I was assured that the matter would be taken up and addressed as part of the arbitration.

Both these two left shortly after this. Of particular note, they travelled to and from my premises together, jeopardising ethical transparency. What private conversations took place between these two? The answer to that question is probably only known to the participants themselves (and perhaps the arbitrator?).

By the end of April 1995 (see below), the resource units were now preparing their reports and I had a gut feeling that the COT members had been deceived. I felt as if I had been crucified by the very person who was supposed to be delivering justice, the arbitrator. He had not once investigated my questions regarding why my fax and phones continued to create so many problems. By this time, Telstra’s SVT had given the Cape Bridgewater network the green light even though AUSTEL had condemned the testing as grossly deficient (refer Main Evidence File No/2). I was now convinced that the arbitration was just a sham, instigated with the single aim of ‘shutting me up’ by providing a finding that favoured Telstra. I was soon to find out how right I was.

Chapter Eleven

Pressure Applied To Arbitrator

28 April 1995: The TIO special counsel wrote to the TIO noting:

“Attached is a draft letter to [arbitrator]. It is in reasonably harsh terms.

“Could you please consider whether a letter in this form or an amended form, should go to [arbitrator]. (See My Story Evidence File/15)

The draft letter to the arbitrator states:

“However, I understand you are to present a paper in Greece in mid May.

“I would expect that the Award would be delivered prior to your departure.

“It would be unacceptable to contemplate the delivery of the Award being delayed until after your return.”

And accordingly, the arbitrator handed down his award the day before he left for Greece, despite the two arbitration technical consultants notifying him, on 30 April 1995, that their technical report was weeks away from being completed.

What needs to be clarified is why the TIO special counsel would make a statement in a draft letter advising the arbitrator that “It would be unacceptable to contemplate the delivery of the Award being delayed until after your return,” especially considering the technical consultants report was incomplete. Who had the power to direct the arbitrator?

arabic-220541176060a[1]

It is clear from the statement made by the TIO during a Senate Estimates hearing on 26 September 1997 (see Arbitrator File No/11) that: “…the arbitrator had no control over that process because it was a process conducted entirely outside the ambit of the arbitration procedures”. The statement made by the TIO special counsel in his 28 April 1995 draft letter clearly suggests that the arbitrator took orders from others as to when he could or could not complete his findings. For the TIO special counsel to be able to dictate to the arbitrator (through the TIO) as to when the arbitrator can bring down his award is a very serious matter indeed, particularly in light of the incomplete report and ongoing investigations into billing faults.
Even though the arbitration technical consultants’ 30 April 1995 draft report included a formal request for the arbitrator to allow them extra weeks to investigate and address my ongoing billing claims, this was not granted. We can say this with certainty because the request for extra weeks was removed from the draft report, and the arbitrator then sent  an amended report without the request for extra time. This was presented as the final, official version, as is stated above.

5 May 1995: The arbitrator wrote to me, noting:

“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.”

And he reiterated his previous instructions:

any comments regarding the factual content of the Resource Unit reports must be received … by 5.00 p.m. on Tuesday 9 May 1995″. (see Arbitrator File No/48)

The phonecall and faxes referred to by the arbitrator relate to my attempts to submit two small reports that I had compiled from 24,000 FOI documents that Telstra had been delinquent in supplying. I had informed the arbitrator that both my technical consultant (George Close) and my main claim advisor (Garry Ellicott) were emphatic that a comprehensive log of my fault complaints had been sent from Queensland to his office in June 1994.

The arbitrator did not acknowledge the existence of such a document or even attempt to investigate to where it could have vanished. Furthermore, he refused to allow the submission of those two reports; as his letter states, he considered them “new evidence”. A number of events followed, which all relate back to the arbitrator’s refusal to discuss the ramifications of the missing log of my fault complaints. This refusal has serious consequences for my case and its outcomes.

Just seven days after he refused my request to search for the missing log, the arbitrator informed the TIO that these types of document issues were contributing to the arbitration rules being unworkable. Despite that fact, he still used those ‘faulty’ rules all the way through my arbitration process (see Open Letter File No 55-A). The next three complainants (who had all signed their agreements on the same day as I signed mine, in April 1994) were allowed at least 13 months longer than I had been, to amend their claims and convene a hearing to discuss the same issues that I had asked to discuss.

Lastly, the arbitrator also ignored the fact that Telstra had deliberately withheld those 24,000 documents until it was too late for me to use then in my arbitration process. This was their way of punishing me for helping the Australian Federal Police with their investigations. If the arbitrator had allowed the technical consultants enough time to search for the missing list of fault complaints and to assess my claims of serious billing faults properly (see  Arbitrator File/No 29 & 30), it is possible the technical consultants and I would have uncovered the causes of the ongoing telephone problems. If complete technical and financial reports had been provided to us during the arbitration process, instead of incomplete versions by the TIO or arbitrator (or if the 12 May 1995 letter discussed below had been provided during my designated appeal period), the outcome would have been more in the interests of natural justice. These unsolved problems not only finally forced me to sell my business, but later contributed to the new owners being declared bankrupt in August 2009. A lot of unnecessary suffering for my family and others could have been avoided.

It is most important to note that the ‘Rule of Law’ has NO time constraints. So why was the TIO special counsel trying to force a time constraint against the arbitrator correctly and lawfully allowing me reasonable time in which to prepare my case? He allowed the other three complaints between 13 months and three years to prepare their cases.

Arbitration Agreement Not Credible

Although exhibit  Arbitrator File No/34 A  and Open Letter File No 55-A is discussed in both the Senate and Hacking – Julian Assange? pages it is again necessary to link it with the following segment.

I was entitled to receive this well-concealed letter during my designated appeal period, but I did not receive a copy until 2002 (and outside the statute of limitation period). The arbitrator wrote to the TIO on 12 May 1995 stating:

“…as far as I could observe, both Telecom and Smith co-operated in the Smith arbitration

In the same letter, the arbitrator made the following comments, which would benefit from being explained by the TIO’s office

“…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”. (see Open Letter File No 55-A)

In the arbitrators’ draft award (inadvertently provided to me by the TIO office in 2002) point 2.23 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.”

What has not been revealed to-date is, ‘who hand wrote the statement at the side column at point 2.23: Do we really want to say this?

No point 2.23 is in the final award!

A_Pecoud_bw-7[1]

The failure of the arbitrator to grant the technical units the extra weeks they had officially requested to investigate and fully assess my ongoing telephone billing claim documents is addressed elsewhere in absentjustice.com, as well as in my manuscript Ring for Justice. If completed technical and financial reports been provided to us during the arbitration process, instead of incomplete versions by the TIO or arbitrator (or if the 12 May 1995 letter had been provided during my designated appeal period), the outcome would have been more in the interests of natural justice and a lot of unnecessary suffering for my family and others  could have been avoided.

In this letter, the arbitrator’s statement that: “as far as I could observe, both Telecom and Smith co-operated in the Smith arbitration”, is particularly important because it blatantly contradicts two other important pieces of information directly related to the running of the arbitration.

Firstly, it contradicts the resource unit’s reference to the “forces at work they claimed were destroying the very fabric of this legal arbitration process. Secondly, it contradicts the information I passed on to the arbitrator, the TIO’s special counsel and the TIO – in November and December 1994 and in January and March 1995 – in relation to how Telstra had carried through their threat and withheld documents I had requested through FOI. Because I had assisted the AFP with their investigations into Telstra’s unauthorised interception of my telephone conversations, this was the consequence. So what would have prompted the arbitrator’s statement about witnessing co-operation?

Why didn’t the arbitrator and the TIO contact the Victoria Police about this crime? Or more appropriately, why didn’t they report the matter to the AFP who were partly, although quite innocently, to blame , because I had helped them with their investigations? Who actually wrote the arbitrator’s final award, because it certainly does not match the draft version that included a question from an unidentified person asking what was allowed to be included and what should not be included in the final award? Had the arbitrator also been threatened?

medieval-torture11[1]

It is difficult enough dealing with an arbitrator pulling one way by deliberating on my claim and using an arbitration agreement that allowed the process to be conducted outside the ambit of the arbitration procedures. But to have the TIO pulling the other way, by concealing the arbitrator’s letter from me during my designated arbitration appeal period, was really the last straw. This prevented me from putting these criminal acts out of my mind: the TIO and the arbitrator may just as well as had us all hung, drawn and quartered for good measure.

This same arbitrator eventually moved on to advise the federal government on a number of legal issues, including telecommunications matters.

And, a few months after the TIO concealed this vital letter from me, he sat on the front bench, advising the federal government in the newly elected John Howard Liberal/National Coalition government, even though less than two and a half years earlier, while wearing his ombudsman hat, he was providing confidential Coalition party room COT case information to Telstra executives.

When people in government choose to act unethically, as happened in the COT cases, and those with power completely ignore or trample the rights of ordinary citizens, then lives are ruined.

A transcript prepared by Telstra’s arbitration lawyers, records both the future arbitrator and the TIO’s special counsel as present when Telstra’s questionable conduct towards the COTs was first raised at our pre-arbitration hearing on 17 February 1994. In fact, that transcription records the TIO’s counsel saying:

“… if evidence indicated illegal tapping and unfair means had been used, then there may be some “moral” duty on the party to go forward . 

And, “That there may be a duty to disclose to the police criminal matters”. (See Arbitrator File No/35)

I provided a CD of evidence to the office of the Hon Tony Abbott, then-prime minister of Australia; the Hon Malcolm Turnbull, Minister for Communications; the Hon Barnaby Joyce, Agriculture Minister; The Hon Dan Tehan (my local Federal Member of Parliament) Senators Scott Ryan and Barry O’Sullivan; and the AFP, in 2014. The CD shows that the office of the arbitrator was provided with conclusive proof that Telstra had not only destroyed relevant information on my requested documents, but that they had also tampered with my TF200 telephone after it left my business and created a report that was even in conflict with their own technicians’ findings.

So why weren’t the State Police and/or the AFP contacted, as the pre-arbitration hearing on 17 February 1994 advised the claimants they would be, if illegal tapping and unfair means had been used against the COT

If the handwriting in this draft award is the arbitrator’s, then why is he asking permission what he can or cannot not say in his 11 May, 1995 award? If this handwriting belongs to someone other than the arbitrator, then why is that person querying what can or cannot be exposed in the arbitrator’s award?

To further prove how undemocratic our arbitrations was conducted, we only have to view Dr Hughes’ letter of 12 May 1995 to Warwick Smith, the day after Dr Hughes handed down his award. In this letter, Dr Hughes condemns the arbitration agreement (set of rules) as not credible, after using it anyway (see Absentjustice Introduction File No 2-E). Not only did I not get a copy of this letter during my designated appeal period, I likewise did not get a copy of Warwick Smith’s letter to Telstra’s Steve Black, dated 24 May 1995, which advises:

“Other matters relating to liability will be dealt with separately. Dr Hughes is in his office from 30 May 1995…

“I have to hand your letter of 19 May 1995 to AUSTEL’s Carrier Monitoring Unit which refers to the Smith decision and the reconciliation of the Arbitrator’s comments on Telstra’s legal liability.” (SeeAbsentjustice Introduction File No 2-F)

The 19 May letter, showing the arbitrator’s official findings on Telstra’s legal liability to me as the claimant were concealed from me during my arbitration, is bad enough, but to also conceal both this letter and the 12 May 1995 letter, totally condemning the arbitration agreement, is beyond belief.

Senator Ron Boswell’s discussion in the Senate, on 29 November 1994, concerns my document issues: issues that Dr. Hughes knowingly mislead Laurie James, president of the Institute of Arbitrators Australia, about in his correspondence of February 1996 (see Prologue Evidence File No/8-E).

Why should high-profile lawyers have a different set of rules applied to them, with any investigation into their alleged misconduct put on hold for more than 30 years? Whether Mr Murphy was guilty or innocent, this issue should have been put to rest years ago. The claims made by the COT Cases, their legal advisors as well as the six following Senators (see ) should have been investigated two decades ago. Why should the legal fraternity in Australia and Telstra’s executives who allowed the COT crimes to flourish be covered up as they have been to the detriment of victims who suffered badly because of those crimes?

continued on Arbitrator Part-Three