PLEASE NOTE: Destruction of Evidence / Perverting the Course of justice was created on 23 March 2015 and is a work in progress. Last edited March 2019.
Former Supreme Court judge calls for investigation
The revelations have prompted Mr Whealy to call for an investigation.
“It looks like a very serious matter that requires investigation,” he says.
“This is damning material to suggest there’s been a breach of the duty of disclosure.”
Even if the recordings do not contain anything incriminating, Mr Whealy says they are still relevant material for the defence.
“The point is an obvious one: if someone is under surveillance to see whether their behaviour indicates some sort of guilty action, it’s equally important from a defence perspective to show they haven’t been doing anything that’s untoward,” he says.
“While the prosecution might want to seize on one incident or one conversation, the defence are entitled to say ‘let’s look at it overall and see what the behaviour of this person is’, and from that, to say ‘there is a lot of innocent behaviour’, so they are entitled to get that material part.
“But it seems the defence has been deprived of the opportunity to do this.”
I have used the wording by Judge Anthony Whealy of the Supreme Court of New South Whales who presided over the Keli Lane trial in 2010, because of the similarities of his statements concerning full disclosure of documents during litigation and those made by former United States Supreme Court Justice Felix Frankfurter (see Chapter One Destruction of Evidence where I have reported that Justice Felix Frankfurther is credited with having stated
“if one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny. Legal process is an essential part of the democratic process”.
Dr Hughes (arbitrator) did not demand to know why I was threatened, during my arbitration, with the withholding of my requested discovery documents, sought under the FOI Act. What is so disturbing about this, is that when Dr Hughes learned I continued to assist the Australian Federal Police’s investigations into Telstra’s unauthorised interception of my telephone and faxes – and that Telstra did carry out its threat and stopped releasing FOI documents – he also forgot his official promise to COT spokesperson Graham Schorer made during our pre-arbitration hearing. During this meeting, Graham raised Telstra’s previous unethical conduct towards the COT cases and Dr Hughes stated “as arbitrator, he would not make a determination on incomplete information” (see Telstra’s minutes from this meeting [page 3 – second line] My Story Evidence File No 14). It is now confirmed, throughout this website, absentjustice.com, that Dr Hughes did, indeed, make a determination on incomplete information. This is serious enough, but what about the most important document of the whole arbitration process, which was also concealed, i.e, the Portland and Cape Bridgewater telephone exchange logbook which AUSTEL used in order to prepare their own covert adverse findings against Telstra (see ? Dr Hughes was even advised the Commonwealth Ombudsman was unable to force Telstra to release this document (see Commonwealth Ombudsman’s letter below). Why did Dr Hughes ignore my pleas to access this most relevant log book?
Before I and the other three COT Cases signed for arbitration, Warwick Smith, Peter Bartlett and Dr Hughes all assured us the documents we required from Telstra would begin to flow through to us once our signatures were on the agreement. The Arbitration Agreement was secretly altered just 36 hours before we were told if we did not sign this altered agreement, Telstra would walk away. The inference was we could not afford to take Telstra to court so we had better sign it, or suffer the consequences of a long court and expensive legal battle. We signed it under duress, after being told if we did not sign the attached media release that stated we were happy little chappies then the same scenario applied. Almost crying with frustration and anger at having reached this gate which was half open we did what we were told.
By May 1994, one month before I had to submit my claim, the flow of documents had stopped before they had started to arrive and so I arranged to go to Melbourne on 14 May 1994 to look at some FOI documents that Telstra stated they would show me, in their offices.
On the 14 May 1994, I arrived at Telstra’s Exhibition Street FOI viewing room at 9:00 am as previously arranged, to view FOI documents that Telstra had sent me without schedules. I was introduced to Telstra FOI staff, including George Sutton and Rod Pollock. I was informed I had the room until 6pm. I also arranged this meeting so I could apply for other material I had requested, but not received.
Rod Pollock offers fabricated reasons to explain why documents Alan had received some days before were heavily censored by blanking out information. Alan receives some of the documents he should have received under his December 1993 and February 1994 FOI requests. Mr Pollock provides some heavily blacked out documents, including about 56 fax cover sheets, with attached documents. One of the documents refers to the MELU Exchange that caused Alan massive problems between August 1991 and March 1992, so he asks Mr Pollock if he could supply the document, without the blanking out. Mr Pollock leaves and Alan continues to check the documents provided.
I had some of the documents that Telstra had previously supplied with me. I noticed faxes that were only half received in the past were now not only incomplete, but they were attached to documents they had no connection to the attached information. Some of the 56 fax-cover sheets I had seen before, now had completely 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 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 and provided it to both the TIO and the arbitrator.
A TIO file note dated 16 May 1994, which I received late in December 2001 (under the TIO policy privacy Act), confirms my visit to the TIO’s office (two blocks from Telstra House) and my request for a witness to accompany me back to the Telstra viewing room to see the altered documents for themselves. In the last paragraph of this document the deputy TIO, Sue Harlow, refers to the proof I left confirming Telstra altered information on the supplied documents, noting, “He left an example of this with us (also attached).”
Courts need evidence
Courts need evidence to do justice in adjudicating disputes. Concerning the protection of evidence, its admissibility, and discovery/disclosure, it is ultimately for the courts, in a democracy, to decide what is and what is not admissible in evidence in a judicial proceeding. It does not fall on the parties to decide unilaterally for themselves to advantage themselves. The Executive may not unilaterally decide for itself what is or is not required by the Judiciary and be permitted to embark on a unilateral concealment exercise when a party to litigation.
Prologue Evidence File 1-A shows that Telstra’s lawyers spuriously advised Telstra exactly how to conceal documents from the first four COT claimants (which included me), even before we started our arbitrations. A comparison of Prologue Evidence Files 1-B and 1-C reveals that it is also blatantly obvious that the same lawyers actually drafted the first COT arbitration agreement that was then used for those first four arbitrations, even though the claimants, and also many Senators, were told that the agreement was drafted independently of Telstra. Then, even though the arbitrator (Dr. Hughes) advised the TIO (Warwick Smith) on 12 May 1995, that this original agreement was ‘not a credible document to use’ (see Open Letter File No 55-A), he used it anyway – to the detriment of the claimants but even this unethical conduct by the arbitrator is still covered by the confidentiality agreement signed by the parties.
COT Case Strategy
Although this COT Case Strategy has been raised in Chapter One of our Burying The Evidence page and elsewhere in our reporting it is just as important to raise it here because for want of a better word: this COT Case Strategy was the root of all evil and destroyed any chance that the COT Cases might have had if they had been afforded their basic right to discovery, something that is mandatory in most western democracies.
The Freehill Hollingdale & Page COT Case Strategy (see Prologue Evidence File 1-A) is dated 10 September 1993: six weeks before the named parties in this document, i.e., Graham Schorer, Ann Garms, Ann Gillan (Maureen) and Alan Smith (me), signed our Fast Track Settlement Proposals (FTSP), on 23 November 1993. In April 1994, the FTSP became the Fast Track Arbitration Procedure (FTAP).
The COT Strategy showed Telstra how to conceal technical documents, which were not privileged, from the four COT cases under Legal Professional Privilege: this was a predetermined strategy to use on us even before we signed our arbitration agreements. For AUSTEL, the then government communications regulator (now ACMA), who facilitated the FTSP, to have allowed this COT Strategy to stand without ever penalising the then fully government-owned Telstra Corporation, when a new arbitration process was introduced for the four COT cases, is most disturbing. For the Australian government to have allowed its endorsement of the FTSP to stand after it was alerted to this COT Strategy is just as alarming.
In June 2000, renowned Legal Professional Privilege expert, Associate Professor Suzanne McNicoll, provided the COT claimants (see Memorandum of Advice File 1-B) with the following legal opinion on page 17 of this 21-page Memorandum Advice regarding the Freehill’s ‘COT Case Strategy’ i.e. (Memorandum of Advice File 1-A)
“There is also some potential prima facie evidence of (4) i.e. knowingly making false or spurious claims to privilege. For example, there is potential structure set up for the possible abuse of the doctrine of legal professional privilege in the faxed document entitled “COT” Case Strategy, marked “Confidential” dated 10 September 1993 from Ms Denise McBurnie of Freehill Hollingdale and Page, Melbourne Office to Mr Ian Row, Corporate Solicitor, Telecom Australia.”
Telstra FOI document folio P03022 is an internal email dated 23 September noting:
“In the current climate Telecom needs to be particularly careful with its correspondence to the CoT customers. I have engaged Denise McBurnie from Freehills to participate on an “as required” basis in this matter and it is appropriate that all correspondence from the CoT (and near CoT) customers should be channelled through Denise for either drafting of the reply from Telecom or for the reply direct from Freehills as our agent.”
SENATE official Hansard – Parliament of Australia dated 25 June 1997, it shows Telstra employees rorted millions upon millions of dollars from Telstra shareholders in 1992/93: i.e., the government and Australian citizens, who then owned Telstra. The pressure Senators Alston and Boswell applied, for a Senate investigation into the Casualties of Telstra phone fiascos, was one of the reasons Telstra agreed to settle the COT cases’ issues in a proposed Fast Track Settlement Proposal, signed by Telstra and the four claimants in the third week of November 1993. Telstra, it seemed, could not afford a further investigation into its operation: New South Wales was not the only state where this rorting, among others, was taking place. The fact that both the Telstra CEO and all the board members had known, for some time, that millions upon millions of dollars were being unlawfully siphoned from the government coffers is astounding. In fact, figures running into the billions have also been quoted.
It is important to view Senate page 5163, SENATE official Hansard, because it provides similar information concerning systemic criminal conduct within the Telstra Corporation. It shows the corruption within this government-owned asset was certainly real and not a figment of our imaginations. It also supports the COT cases’ demand that all this corruption be abolished before our arbitrations commenced; it was not, and the COTs were forced into a process that was rife with corruption, as our evidence shows.
Page 5169 in this SENATE official Hansard confirms a number of senators discuss a legal firm and its strategy advising how Telstra can conceal technical information from the four COT cases under Legal Professional Privilege, even though the documents were not privileged. The COT strategy Prologue Evidence File 1-A to 1-C is worth a read on its own.
The author of this COT strategy is the same lawyer with whom I was forced to register each of my phone complaints, in writing, before Telstra would address these problems. NONE of the fault information I provided to this lawyer, concerning ongoing telephone problems and Telstra’s response to those problems, were ever released to me during my arbitration.
To add further insult to these injustices, on 12 September 1994, as part of the arbitration process, I was obliged to meet with Telstra’s consulting forensic psychologist in Portland’s Richmond Hotel so he could analyse my mental health as part of Telstra’s defence of the arbitration process. One of the most important issues I raised with him was the trauma I suffered at the hands of the legal firm that hired him. He appeared to listen carefully to what I described and he said being directed to register phone complaints, in writing, with Telstra’s lawyer, before they would be investigated, was most disturbing. I provided confirmation that losing six incoming calls in a single day was common. Writing to a lawyer, explaining lost calls, was more than just soul destroying, it just about broke my will power to carry on. He said he was shocked Telstra and its legal firm forced this on me and agreed this would certainly affect my mental state over the many months I had to do this.
However, when Telstra’s lawyers, which the government assured us would not be used in our arbitrations (see Prologue Evidence File No/2), provided this clinical psychologist’s witness statement to the arbitrator, it was only signed by a lawyer from this legal firm. It bore no signature of the psychologist and didn’t contain his concerns regarding me having to first contact this legal firm, in writing, before Telstra would address my telephone problems. The witness statement includes comments such as, “In my professional opinion his preoccupation has become a clinical obsession.”
The most alarming points about this unsigned witness statement are:
- Before the psychologist met with me, Telstra’s lawyers provided him with a copy of the Cape Bridgewater Bell Canada International (BCI) addendum report stating 13,590 test calls were carried out, over a five-day period, into the Cape Bridgewater RCM exchange, using the TEKELEC CCS7 monitoring equipment. This report stated the test calls had a 99 percent success rate.
- Neither the psychologist nor the arbitrator were told tests through the Cape Bridgewater exchange was impracticable: the nearest exchange that could accommodate the TELELEC CCS7 equipment was the Warrnambool exchange, 120 kilometres from Cape Bridgewater
Had the psychologist known the 13,590 tests calls, allegedly carried out by Bell Canada International Inc (BCI), could not terminate through the TEKELEC CCS7 monitoring system at the Cape Bridgewater exchange, his assessment of my mental state would have been somewhat different. He, too, might have been distressed if he had been aware Telstra misled and deceived him prior to him assessing my mental state.
On 24 June 1997, the day before the Senate Estimates Committee exposed the COT strategy ex-Telstra employee turned whistleblower, Lindsay White, advised a Senate estimates committee that, while he was assessing the relevance of the technical information requested by the COT claimants, two Telstra officials gave him instructions.
Mr White: “In the first induction – and I was one of the early ones, and probably the earliest in the Freehill’s [Telstra’s Lawyers] area – there were five complainants. They were Garms, Gill and Smith [me], and Dawson and Schorer. My induction briefing was that we – we being Telecom – had to stop these people to stop the floodgates being opened.”
Senator O’Chee: “What, stop them reasonably or stop them at all costs –or what?”
Four of the five COT Cases who Lindsay White advised the Senate Committee he was told; had to be stopped at all cost from proving their claims were Ann Garms, Maureen Gillan, Graham Schorer and me. These were the same four names that appear on the COT strategy?
In other words, Telstra and its lawyers were allowed to single out four fellow Australian citizens from the then-population of 18 million and determined that, even if we four COT cases spent hundreds of thousands of dollars in arbitration fees (which we did), we would never win our arbitration claims.
Senator Richard Alston’s statement, in the Senate on 28 October 1993 while he was Shadow Minister for Communications, shows he advised the Senate that the COT cases’ forthcoming arbitrations would be administered independently by one arbitrator to each claimant (See parlinfo.aph.gov.au/parlInfo/search). He stated:
“As I understand the proposal it would be based on the UK model. The process would be managed or facilitated by the Telecommunications Industry Ombudsman, who would then contract out arbitration responsibilities to one of a panel of arbitrators for each of the claims in order to enable all matters to be dealt with as expeditiously as possible.
“Both sides would then put written material before the arbitrator who would then hand down a judgment without taking submissions or hearing evidence. The UK experience suggests that complex cases can take up to three months before a decision is handed down but it could be anticipated that these matters would not take that length of time.”
In late October 1993, and again in January 1994, Senator Richard Alston and Senator Ron Boswell likewise advised the first COT cases – Ann Garms, Maureen Gillan, Graham Schorer and me – the same as he advised the Senate in October 1993; i.e. one arbitrator per arbitration. Senator Alston made these statements a month after Telstra and its lawyers, Freehills, decided to operate outside of the law and use the COT strategy to destroy any reasonable chance we had of proving our phone problems were not just historic/past problems, but were ongoing and continuing to affect the viability of our businesses. I do not believe for one moment that Senator Richard Alston, or any senators who were determined to ensure the COTs received the justice we were entitled to, would have allowed us to sign our arbitration agreements had they known what Telstra and their lawyers intended doing to prevent the COT cases from receiving our promised documents.
So, in 2018, the government, its minders, the communications regulator, and the previous COT arbitrator, consider it was reasonable for Telstra’s lawyers to advise a client on how to conceal technical evidence under the guise of Legal Professional Privilege, in order to prevent this evidence from being used by the COT cases to support our claims. Had the Establishment, which includes the arbitrator, believed it was spurious for Telstra and its lawyers to have embarked on this concealment process, then these Legal Professional Privilege issues would have been rigorously investigated when the COT Case Strategy document surfaced.
Threats by the TIO office
COT case spokesperson Graham Schorer and Ann Garms (now deceased) reminded Warwick Smith (TIO) that a number of senators advised us British Telecom had appointed a separate arbitrator from the Institute of Arbitrators for each arbitration during the UK process and, therefore, we wanted to remain in the current Fast Track Settlement Process (FTSP). We did not agree to Dr Hughes abandoning his commission as the assessor and taking a new role as arbitrator. Telstra made it clear it would walk away from the process altogether if we did not abandon the FTSP and this would mean we would have to take Telstra to court to honour its signed and agreed-to AUSTEL-facilitated FTSP. NONE of the four COT cases had the finances to take the government-owned Telstra Corporation to court and, with all four cases on our knees financially, we reluctantly agreed to abandon our already operating commercial assessment process.
However as a show of good faith, we allowed Dr. Gordon Hughes to conduct all of our four arbitrations after he advised us, on 17 February 1994, as recorded by Freehill Hollingdale & Page (Telstra’s arbitration lawyers) “…that as arbitrator, he would not make a determination on incomplete information”. (See Transcript-File-No-5). As our website shows the arbitration was not conducted even under the agreed ambit of the arbitration procedures and because Dr. Hughes could not possibly assess all the hundreds of thousands of claim documents submitted by the seven COT Cases. A secret deal was reached between Telstra and the administrator of the arbitrations (see Chapter Seven Arbitrator / Part Two) in which this letter from Steve Black Telstra’s arbitration unit states:
“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 this 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
Worse, NONE of the members in the arbitration unit were qualified lawyers or arbitrators, yet they were allowed to decide what Dr. Hughes saw or what he did not see. Eventually, 15 months after the conclusion of my arbitration, the resource unit admitted to previous-arbitrator Dr Hughes that they knowingly concealed relevant billing documents from him and me. Those actual five concealed documents can be accessed by clicking onto Open letter File No/46-F to 46-J. Because Dr Hughes did not address these vital and relevant billing documents even though Open letter File No/46-I and 46-J, were clearly addressed to him attaching the other three documents see Open letter File No/46- F, 46-G, and File No/46-H Telstra was given permission to address these civil legal issues covertly on 16 October 1995, without the arbitrator or me being present (see Open letter File No/46-L. As shown in Chapters Thirteen and Fourteen in Arbitrator / Part Three, by allowing only Telstra to address these arbitration issues, I was denied my legal right to challenge Telstra on its written response to the government.
Perhaps just as horrendous as the Government addressing civil arbitration claim document in secret with the defence was the lie sold to the COTs that, if they accepted the Government-endorsed settlement proposal (which eventually became the Telecommunication Industry Ombudsman-administered arbitration process) then they would need to access Telstra’s historic fault data that was associated with their individual complaints, under FOI, because that was the only way they could properly support their claims. What the Government failed to tell the COT claimants, however, was that Telstra did not retain that sort of data for more than twelve to thirteen months, as the following information shows, under the heading The Worst of the Worst. It is quite clear that, even as those Government representatives ‘explained’ the FOI situation to the COTs, they already knew full well that the COTs could never fully prove their claims because Telstra did not hold those old data records. This was a deliberate plot, set up to fool the COTs into believing that they had a decent chance of finding justice but which, instead, finally cost many Senators, the Commonwealth Ombudsman and the COT Cases themselves many years caught up in a futile exercise as they searched for documents that the Government already knew were no longer in existence.
The Worst of the Worst
The two attached emails dated 25 October 1993 (FOI folios A06537 and A01554), from Telstra’s Don Pinel to Telstra’s Corporate Secretary, Jim Holmes, and the third Telstra email dated 27 October 1993 FOI folio A01554, also from Don Pinel to Jim Holmes (see TIO Evidence File No 7-A to 7-C), are so significant. It is important to first understand that there appears to be a number of arbitration officials within the Establishment who were aware that Telstra knew, in advance, that they would not be able to supply any of their historic technical data (commonly referred to as Leopard fault data) before the COTs went into arbitration. What we are saying is that we believe, if the two Senators and Warwick Smith had known, before the COTs signed for their arbitrations, that Telstra would never be able to supply the FOI documents requested by the claimants regarding this very important historic faults data, then they would not have allowed the COTs to enter into a process that was so obviously going to be totally undemocratic.
Telstra’s Corporate Secretary at the time, Jim Holmes, was advised in all three emails (A01554, A06507, and A06508) that the Leopard Fault data (which was the technical data that Telstra kept regarding exchange faults) had been destroyed once it was more than twelve months old. Mr. Holmes was, at the same time as being Telstra’s Corporate Secretary, also a member of the TIO Board when the first four COT claimants (Gillam, Garms, Schorer, and Smith) formally signed their arbitration agreements, but it seems that Mr Holmes did not alert the Government to this destruction of records, even though, after all, the Government had endorsed the arbitration agreements; neither did he warn the TIO, who administered the arbitrations, that the claimants would not be able to support their claims effectively because Telstra had destroyed all the historical data, at least from 1992 on. Have Telstra, and The Hon Richard Alston, and his fellow Coalition Government Ministers ever stopped to consider what followed, once Telstra had managed to keep this serious matter secret? Have Telstra and the Australian Government ever considered the financial cost to each claimant (let alone the psychological stress) as they tried to access information that Telstra knew had already been destroyed, years before they went into arbitration? The costs that accumulated for each and every one of the COT cases ran into hundreds of thousands of dollars as they struggled to access this non-existence fault data (and other Telstra data) in support of their arbitration claims. Has the Senate ever considered the cost, not just in dollars but also in the eighteen months that various Senators spent between September 1997 and March 1999, assisting the COT Cases in their various attempts to access technical documents, when Telstra knew they had been destroyed years before any of the COT Cases went into arbitration?
The fact that Telstra’s Corporate Secretary, Jim Holmes, knew about this destruction of so-called ‘old’ data, for a fact, as emails A01554, A06507 and A06508 (see TIO Evidence File No 7-A to 7-C) show, and yet, on 18 November 1993, still he chose to sign all four FTSP agreements for the first COT Cases, while he was also a TIO Board member, and therefore attended the TIO monthly Board meetings, even when COT Cases arbitration issues were discussed, but he never passed on to the TIO exactly what he knew concerning these destroyed documents that the claimants were trying to access, has further made the COT arbitrations a mockery of the Australian legal system.
Have the ACMA Board, the TIO Board and the TIO Council fully understood how much it has cost taxpayers for Telstra to defend the COT Cases claim when Telstra was a fully-Government-owned corporation? The cost to the taxpayer included the hiring of the TIO-appointed arbitrator; the TIO-appointed Special Counsel; and the TIO-appointed Resource Unit – and all this money was spent as part of a process where the Government owned telecommunications carrier had already secretly withheld from the government who owned them and the Senate that the claimants would be wasting hundreds of thousands of dollars (and in most of the cases) borrowed money in their attempt to gain access to documents members of the TIO Board (the administrators of the arbitrations) and Telstra new had already been destroyed.
When Jim Holmes did not ensure the TIO board was notified that the COT cases may have problems trying to prove their historic phone complaints because Telstra had destroyed that data, he was partly responsible for the COT cases racking up thousands of dollars in wasted arbitration fees, including paying technical consultants for advice on what historic data was needed to support various claims, when that data no longer existed.
Mr. Holmes did not advise the TIO (the administrator of the COT arbitrations) that the arbitration agreement the claimants were signing should be revised because there was no historic Leopard fault data.
On 16 May 1994, 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.
We were promised that the Telecom documents we needed to support our claims would be made available to us if we entered into arbitration. Despite that promise, those documents were never made available, and we still do not have them to this day. An arbitration process might be our only chance of justice; of course, in a democracy like Australia, we could rely upon the arbitrator… or so we thought.
Break-ins and losses
From the sublime to the ridiculous. It was in March 1994 when Graham Schorer and another COT member suffered break-ins and lost arbitration related documents. That made all of us a lot more vigilant. I found no evidence of a break-in, but I did notice two diaries covering the period 1987 to 1989 were missing including all my single/social club booking information had vanished from my office, I decided to remove my official business diaries from my office, and from then on I transferred information to them on a weekly basis from my wall calendar and unofficial notebooks.
During his visit, Garry Ellicott ex-Queensland Detective who I commissioned to assist me with my forthcoming arbitration claims and I spent five nights trying to put a claim together. It was during his visit I discovered further losses: exercise books in which I kept official booking records; 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 arranged for him to take the work diaries with him for safe-keeping.
The fallout from all this became evident some weeks after my oral arbitration hearing in October 1994, when Dr. Hughes asked for my annual diaries for assessment so that Telstra’s forensic document examiner could view that material. Garry sent them directly to his office. Soon after that, Telstra submitted their defence of my claims. Then, two months later, in February 1995, Telstra advised Dr Hughes 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.
I have since explained how, and why, I had to copy fault complaint records into the diaries from the original exercise book records; I explained why this was sometimes done days after the actual booking or fault complaint; I explained why it sometimes took some weeks for a fault complaint to reach Telstra (because I had been directed to register all of them, in writing, with Denise McBurnie, a Telstra lawyer from Freehill Hollingdale & Page) and I explained that Telstra refused to send out a technician to investigate any of my complaints until after I had registered them with Ms. McBurnie. I went on to explain that, nonetheless, my chronology of fault events was true and correct and that Telstra’s lawyer could confirm the dates I registered those phone faults with them. I also reminded Dr. Hughes that, during my earlier oral arbitration hearing, I had practically begged to be allowed to submit these further fault complaints notebooks and reminded him that the transcript of that meeting records my multiple requests. Telstra, of course, immediately objected to my claims and the arbitrator asserted, without even looking at them, that they were irrelevant. It was Dr. Hughes’ statement that these claims were irrelevant that first led me to realise that he was not the independent arbitrator we COT Cases had been assured he was.
Nevertheless, when it came to his summary in relation to these diaries, the arbitrator stated:
“I have considered, and have no grounds to reject the expert evidence provided by Telecom from Neil William Holland, 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 have raised the issues above, in relation to Telstra’s Forensic Documents Examiner, Mr Holland, because, in April 1995, as recorded below, when I asked Dr. Hughes to arrange for Telstra to provide their TF200 EXICOM ‘sticky beer’ arbitration defence report to Paul Westwood, my Forensic Document Researcher, Dr Hughes simply refused to do so.
The discussed 11 October 1994 oral arbitration hearing transcripts (see below) show I alerted the arbitrator I was so concerned about the security of my singles club patrons names: some addresses were single women in their late-40s/early-50s. I had a moral obligation to protect their identities and all information about why they wanted to join my county getaway back to nature canoeing, caving, abseiling, horse riding and bushwalking. Therefore, I originally asked to submit this part of my claim as confidential and only to Dr. Hughes. The Australian Federal Police records show concern that telephone numbers of two Chilean women appeared on Telstra FOI documents as well as showing times I would be away from my business and when my office worker left for the night and documentation showing dates I would be away, weeks before those intended trips. The AFP had evidence this eavesdropping by Telstra started, at least, in September 1992. We were in arbitration in 1994 and Telstra records show their technicians knew I would be in Melbourne between the dates of 7 and 8 August 1994 (four months into my arbitration).
Unauthorised disclosure of AFP information during litigation
Back in February 1994, Superintendent Detective Jeff Penrose and Constable Melanie Cochrane of the Australian Federal Police (AFP) visited my business as part of their investigation into my claims registered with the then Minister for Communications, The Hon Michael Lee MP: claims that Telstra FOI documents suggested Telstra employees were intercepting my telephone conversations and faxes. When Superintendent Detective Penrose and Constable Cochrane asked me for information to support my suspicions that Telstra employees were monitoring my service lines, I provided them with two documents, dated in and around May and August 1993 – one I still have, but not the other.
The lost document shows someone within Telstra documented, on two separate occasions, four of my singles club female members’ names and phone numbers. This lost FOI document is dated May 1993. As well as monitoring my singles club patrons, Telstra also documented the times I left my business to go to Melbourne. These trips were to promote the activities my singles club, Country Get-aways, was providing, such as trips to the Coonawarra Wineries, Glenelg river cruises as well as canoeing on the Bridgewater lakes.
The AFP stated I could not provide the names and phone numbers of those singles club members, nor any existing private information concerning members’ personal information, to the then assessor (later the arbitrator) if Telstra (the defendant) had access to this information, while the AFP was investigating Telstra’s unauthorised interception of my telephone and fax lines. The AFP was also investigating how Telstra gained knowledge regarding who I was doing business within 1992 (AFP documents at hand confirm this) and how Telstra employees were able to positively identify at least one client who telephoned me from a different number.
Constable Cochrane stated I should not release the singles club members’ private information to Telstra and Superintendent Detective Penrose suggested I provide the private singles club information to the assessor under confidentiality and advise him the AFP was also investigating this same material that appears to have been hacked by Telstra.
Constable Cochrane also stated that as I had assured my singles club members their private information would not be disclosed without their consent, I also needed to discuss this with the assessor, Dr Hughes. I believe Superintendent Detective Penrose stated the assessor would be aware I could not divulge this private information via mainstream documents with Telstra, while the AFP was investigating.
It was due to these types of facts, and Superintendent Detective Penrose’s advice, that I sought a clearance, from the arbitrator, to allow me to have this information accepted under confidentiality
Transcripts from my 11 October 1994 oral arbitration hearing confirm Telstra advised the arbitrator they thought my singles club information was irrelevant and therefore should not be accepted into the arbitration process. This evidence supported that I had lost two businesses due to my ongoing telephone problems, i.e., the school camp bookings as well as the more-lucrative singles club bookings (see Chapter Two Prologue page. The transcripts, which I can supply the AFP if requested, show Dr. Hughes was badgered into accepting Telstra’s insistence that my singles club material be not assessed during the arbitration process. Why did Dr. Hughes allow Telstra to decide not to view my singles club evidence as a business loss, even though he had previously understood the advice given to me by Superintendent Detective Penrose and had agreed the singles club material could be submitted under confidentiality during the oral hearing? That he went back on his word.
Question 24, in the 20 September interrogatories shown in our Front Page Part Two File No/3 A to 3 C) link below shows I answered the following question 24 by stating to Telstra and the arbitrator:
“This matter is currently under investigation by the Federal Police. In the interest of fair justice I believe that I should not further comment apart from what I have already stated that it is true that I was told this by Detective Superintendent Penrose. It the Australian Federal Police are prepared to disclose the details of their investigations and of their conversations with myself, then Telecom will be able to obtain the same”
In our Front Page Part Two link 3-c for the date of 11 October 1994, during my five-hour, nonstop, oral-arbitration hearing, Telstra’s Mr Benjamin and Telstra’s other arbitration liaison officer, Steve Black, discussed along with the arbitrator and me my claims regarding Telstra’s unauthorized interception issues noting:
Mr Benjamin: “In respect of Detective Superintendent Penrose.”
Mr Black: “There has been an allegation that Detective Superintendent Penrose says that the Plummers’ telephone was allegedly unlawfully tapped” —
Me: “I believe Telecom is playing on words – the word “illegally tapped” – it’s like asking me – I’m not a —
Dr Hughes: “Sorry, if I can interrupt both of you, the issue here is that your answers – your answer to question 24, you indicate that you were told something by Detective Superintendent Penrose.”
Dr Hughes: “Is there any documentation to support that statement or is there any other light that you can shed upon that statement you have made in relation to Detective Penrose?”…
Me: “I have spoken to Detective Penrose on two occasions and he has stated that my phones had been listened to.”
I raise the interrogatories and the oral arbitration hearing (see Front Page Part Two File No/3 A to 3 C) because of the main question they raise: how could it possibly be ethical, or moral, for Dr Hughes to expect me to disclose further personal and private information about the female members of my Singles Club, for all to see, when the AFP were still investigating Telstra in relation to how they were able to separately record the names and phone numbers of various other female Singles Club members when that information had only ever been sent by fax or discussed over the telephone. NONE of my singles club lost revenue due to my ongoing proven telephone faults were ever recorded by Dr Hughes (arbitrator) or Ferrier Hodgson Corporate Advisory (arbitration resource unit) in their final Cape Bridgewater Holiday Camp findings as discussed below. It can be viewed from File No/3 C that I wanted Telstra’s unauthorisation of my telecommunications services investigated as part of my arbitration claim (see Chapters One to Three our in our Prologue page.
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. 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 unauthorized interception of his telephone conversations, was so severely disadvantaged during a civil arbitration process.
No third world country, let alone one that boasts of being democratic, should force claimants to enter into an arbitration process with a corporation like Telstra, while its senior management was under investigation by the Senate and the government, and its middle management were under investigation, by the Federal police. These investigations included the rorting of millions upon millions of dollars (possibly billions) from Telstra shareholders: i.e., the government and Australian citizens, who then owned Telstra. The same defendants were under investigation on two fronts for committing criminal conduct towards fellow Australians, including alleged criminal conduct towards claimants, who were forced out of their already operating government-endorsed Fast Track Settlement Proposal (commercial settlement process) into an arbitration agreement that the defendants were secretly allowed to draft in order to benefit their defence. And yet, when the arbitrator realised the arbitration agreement he allowed the defence to draft was not a credible document, he still used it anyway. How in the name of justice, as we know it to be in Australia, have these matters been allowed to remain unresolved?
The Threats Continue
My Melbourne lawyers, Michael Brereton & Co, received conclusive evidence that the agreed $250,000 liability caps, in clauses 25 and 26 of the arbitration agreement, were removed between 19 April 1994 (when the agreement was faxed from Dr Hughes’ office, see Open letter File No 54-C) and 21 April 1994, when we signed the agreement (see Open letter File No 54-D). Those removed clauses clearly stipulated the TIO-appointed arbitration resource unit shall be liable to any party during the COT arbitration process because they were acting in a professional manner.
On 21 April 1994, three claimants, Ann Garms, Graham Schorer and I, were threatened: we had to sign the altered agreement or there would be no arbitration. This threat was made regardless of the fourth claimant, Maureen Gillan, signing the agreement two weeks previously and thus being able to sue the arbitrator’s resource unit for negligence (see Arbitrator/Part Two, Chapters Five to Seven). Those two chapters discuss Open letter File No 54-D: Telstra’s official arbitration transcript, taken during an arbitration ex-parte meeting.
Point 6 notes Warwick Smith (official administrator of the arbitration and Telecommunications Industry Ombudsman)
“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”.
On 20 August 1997, Senator Ron Boswell’s son Steven, a lawyer in Sydney, was in Senator Ron Boswell’s Parliament House office when Michael Brereton & Co faxed through this two-page letter addressed to me “C/- Senator Ron Boswell.” It states:
“The conduct of the arbitration which followed was highly dubious and open to attack as inviting questions of bias since the arbitrator ruled out many relevant documents to the detriment of Mr Smith’s claim. … All these circumstances and the fact that the entire arbitration was conducted in a highly legalistic manner much in favour of Telstra on rules it forced into place suggest that Mr Smith was less than fairly dealt with by Telstra and the arbitrator.” (Open letter File No 54-G)
To say Steven (now deceased) and Ron Boswell were shocked is an understatement. My lawyers wanted to use the gross misconduct of the arbitration resource unit to appeal Dr Hughes’ award. However, although I was advised by a silk to challenge the agreement, it would have cost me dearly to base my appeal on this single altered agreement. And, at the time we received this advice, Michael Brereton & Co and I were not aware Dr Hughes (arbitrator), the defendants (Telstra) and the Peter Bartlett (TIO Special Counsel) convened this 22 March 1994 ex-parte meeting (without the COT cases having any representation, whatsoever). Had we a copy of Open letter File No 54-D and the knowledge that the removed $250,000 liability caps were replaced on the arbitration agreement by the TIO’s office for the remaining 12 COT cases, we would have appealed Dr Hughes award.
John Pinnock (the new TIO) wrote to me on 10 January 1996 after I requested he supply all correspondence held by his office concerning my Fast Track Arbitration Procedure. This letter shows he refused to assist me in this matter: “I do not propose to provide you with copies of any documents held by this office.” (See Open Letter File No 57-C to 57-D)
I use this $250,000 liability cap and ex-parte clandestine meeting issues as they are easy matters to prove, as I have done in Arbitrator/Part Two/Chapters five to seven. I believe that had Senator Ron Bowell and the then Minister of Communications Senator Richard Alston, in and around August 1997 when my lawyers provided this very limited evidence, been able to provide what we have here, then all three arbitrations where these clauses were removed would have been investigated. I likewise believe, had this investigation taken place, the Establishment would certainly not have awarded both Warwick Smith and Dr Hughes their Orders of Australia. I suggest any person reading Arbitrator Part One to Part Three and TIO Evidence File No 4-A to 4-B would be aghast what we COT cases have been forced to live with because we do not have the finances to challenge people like Dr Hughes and Warwick Smith.
Six months into the process and still no documents
In my own letter to Dr. Hughes, of the same date as the 11 November, 1994 letter discussed below, which discusses the concealment of the Portland Cape Bridgewater 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 insisted that I should not write to him in relation to my ongoing telecommunications problems to him, to the TIO or to Telstra, unless those letters related directly to my claim but, once I had signed the agreement, I certainly couldn’t send those documents to Telstra because they had already begun to threaten me in relation to my contact with the Australian Federal Police (AFP), so who was I supposed to raise these issues with? In fact, before we had even begun the arbitration process, Dr Hughes had been warned that the AFP were already investigating Telstra for unauthorized interception of my telephone conversations and, in some cases, for sabotage. So who was left for the COT Cases to register these types of complaints with, during their arbitrations, as the list of these ongoing problems continued to accumulate? In my case, the AFP directed me to take my complaints back to the TIO’s office but the TIO’s office told me I should raise any suspected phone and faxing interception in my arbitration claim, and so round and round it went, week after week, until after my arbitration was formally completed, and still no-one had investigated the interception of my telephone conversations or the loss of important arbitration-related faxes travelling both to and from my office. This raises at least a couple of questions: How was I supposed to address arbitration issues, raised by the arbitrator, and faxed to my office, when the fax did not arrive? And how was the arbitrator supposed to address the claim documents I faxed to his office if they did not arrive there either?
As discussed in Absentjustice Brief Summary Part 1, the pages on our menu bar were set up as part of the process of dividing our story into separate strands to cover the technical issues separately from the human-interest issues. You will find that Chapter Five has repeated much of the information already discussed throughout this website. Had we not repeated ourselves again here then the following segment i.e., The Domino Affect would have not seemed significant.
On 11 November 1994, John Wynack, Commonwealth Ombudsman’s Officer, wrote to Telstra’s CEO demanding to know where the information (18 sets of requested documents) had still not been supplied under FOI. I have listed below 7 of those 18 sets of documents sort. This letter (see TIO Evidence File No 2-A) states:
“At the request of Ms Geary [Telstra Senior Management], I am notifying you of the details of the complaints made to the Ombudsman by Alan Smith;.
- Telecom has delayed providing access to documents
- 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 claimed that documents given to Telecom by Mr Smith in 1992 had been destroyed or lost.
- Telecom delayed providing access to documents under the FOI Act while Telecom solicitors examined the documents.
- Telecom incorrectly informed Mr Smith that Telecom did not have in their possession ‘…any of the raw data and working papers to do with the Bell Canada testing and report’
- Telecom unreasonably refused to provide the Portland/Cape BridgewaterLog Book associated with the RCM at Cape Bridgewater for the period 2 June 1993 to 6 March 1994.
Had Telstra informed either John Wynack, Dr Gordon Hughes (the arbitrator) or me that the historic data I requested had not been retained, I would have spent neither time nor money trying to access the documents TIO Evidence File Nos 7-A to 7-C show no longer existed. We COTs – and Telstra – had already signed for a completely different, non-legalistic, commercial assessment process (FTSP), which was less costly and did not require us to provide fault data. Yet, suddenly, we were forced into arbitrations, which required evidence, by those who knew such fault data didn’t exist. Why?
As shown on our Manipulating the Regulator page, had the government communications regulators provided me with a copy of AUSTEL’s Adverse Findings (as they did with Telstra’s lawyer’s) before I started my arbitration, this could have saved me all the heartache and stress which I, and my partner Cathy, have suffered these past 24 years. This part of our lives can never be replaced.
Just as important as the withheld ‘Bell Canada Raw Data’, is the sworn statement (dated 10 August 2006) of an ex-Telstra senior protective service officer, because points 20, 21 and 22 in his statement support how important the missing Portland/Cape Bridgewater Log Book was to his investigation.
(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.” (See AFP Evidence File No 13)
Could this lost logbook 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? 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 lied about the ELMI monitoring machine NOT being connected to my service, when it had been. Like much of the Cape Bridgewater fault data that AUSTEL failed to obtain from Telstra during its investigations into my complaints (see Main Evidence File No 15), I was also unable to access the Cape Bridgewater/Portland exchange logbook – not even with the help of the Commonwealth Ombudsman. What was in the logbook that meant a government regulator, Telstra’s own protective service officer and the Commonwealth Ombudsman’s Office have been unable to gain access to it?
Now I need to jump ahead of myself here to 1999 and 2001, five years after the conclusion of my arbitration. During 1999, the Major Fraud Group Victoria Police asked me to supply any evidence I had of Telstra committing fraud to support its defence during my 1994/95 arbitration. It was common knowledge in government circles that Telstra, indeed, used fraud in defence documents, as well as submitted false information to the Senate in September and October 1997, concerning this same fraud. As I did during my 1994 arbitration, when I assisted the Australia Federal Police during its investigation into Telstra’s unethical conduct towards me (see Senate Evidence File No 31), I agreed to assist the Victoria Police in their 1999 investigations into similar acts of misconduct towards fellow Australian citizens.
I ask you to consider these two witness statements above, dated 8 and 10 August 2006, referring to the 1999 and 2001 Major Fraud Group investigations: one statement was prepared by a government public servant/ex-police officer and the other by an ex very-senior Telstra protective officer (later promoted to the principal investigator). Members of the current government were provided with copies of these witness statements, without redactions. Sadly, the information in these two witness statements, to date, has not been acted upon.
The Telstra ex-senior protective service officer’s witness statement discusses a then still senior detective sergeant of the then Major Fraud Group, Victoria Police. The ex-police officer’s witness statement also describes the anguish experienced by the senior detective sergeant while he was investigating alleged fraud within Telstra during the COT arbitrations and the fears he had after being subjected to intimidation. Consider this: if this feeling of being got at by the Telstra Corporation can reduce a fully trained senior police officer to the condition Telstra’s ex- senior protective service officer alleged, just think how this continued and unaddressed harassment, by Telstra officials, left the COT cases during and after their government-endorsed arbitrations. NONE of us were ever offered counselling or apologised to by the government, who still owned Telstra when this harassment commenced in 1992 (see Australian Federal Police Investigation File No/1) and continued well past the Major Fraud Group investigations of 1999 and 2001
Destruction of Evidence continues
Before the four Casualties of Telstra signed the arbitration agreement, the arbitrator, administrator and special counsel assured us that the documents we required from Telstra would begin to flow through once our signatures were on the agreement (see Crimes Act 1958 Evidence File No 9). By May 1994, one month before we had to submit our claims, the flow of documents had stopped so I personally arranged to go to Melbourne on the 14 May 1994 to look at some FOI documents that Telstra stated they would show me in their offices. (See Senate Hansard dated 20 September 1995 – Senate Evidence File No 1)
During the early part of my FTSP process I discovered that I could not locate a number of important Camp documents including:
A number of exercise books that recorded Camp bookings;
- A number of bank statements and pay-in books for 1992/93;
- Business diaries from 1988 and 1989, the two years my wife had spent at Cape Bridgewater before our marriage broke up, which I had specially kept because they were in her handwriting.
These documents and diaries have never been found and where they went is anybody’s guess
This meant that I was left with only my rough diaries for those dates plus the wall planners I used to register possible bookings as they came in, before they became definite bookings and were registered in the official exercise books. The lack of these records made it difficult to produce full and correct financial statements for my arbitration financial advisor and, in fact, I resorted to using information from the wall planners and those diaries that I still had, and compared that information to the bank statements I also still had.
Graham Schorer, the COT Spokesperson, found himself in a similar position. Thieves smashed a concrete pillar at the side of his office to gain access to his business and it is interesting to note that the only things stolen were Telstra-related documents. The North Melbourne police, who conducted an official investigation into this robbery, called it a ram-raid and were shocked that thieves would go to so much trouble and then only steal business-related documents. Once I learned that some of Graham’s Telstra-related documents had definitely been stolen, that confirmed my belief that I had not just misplaced my missing records, and so I decided to duplicate everything I could; from my office calendars and from annual notebook records of my phone faults, including my notes regarding various bookings, and even any defamatory remarks I had recorded against Telstra, so I copied everything into the appropriate business diaries, by hand, so that I then had two sets of records. Those diaries were then kept away from the office, as a precaution.
I am telling this part of my story here because, during my 11 October 1994 oral arbitration hearing, when I asked the arbitrator to accept those notebooks into evidence, he simply refused, as the transcripts of that hearing show (see Front Page Part Two File No/3-B).
The arbitrators award however simply noted that:The following year however, in April 1995, when Telstra’s Forensic Document researcher had finished assessing my claim documents and the copies of my diaries that I had freely supplied to the arbitrator months before, he warned the arbitrator that parts of some of the entries in the diaries had been added at a different time from when the original entries had been made. As I have explained above, this is quite true, because this is exactly what I did to ensure that I had two copies of everything.
“… in this context, I have considered, and have no grounds to reject, the expert evidence provided by Telecom from [named deleted], Forensic Document Examiner, who examined the claimant’s diaries and, because of numerous instances of non-chronological entries, thereby cast doubt on their veracity and reliability.”
This meant therefore that my valid claims were simply ignored.
I believe it should now be clear that the entire arbitration process was slanted in favour of Telstra, and that attitude was in place from the very beginning, back when the TIO and Arbitrator chose to use Telstra’s arbitration agreement instead of one that had been drafted independently.
Telstra’s Exhibition FOI Viewing Room – 14 May 1994
As discussed fully in Arbitrator Part One, I arrived at Telstra House and met two Telstra officials who provided me with some documents I should have received under my December 1993 FOI requests. One official provided approximately 30 heavily blanked out documents and approximately 56 fax coversheets with attached documents.
Some fax coversheets I had seen before now had different material attached. Nothing seemed to match. For example, documents relating to a fault in 1991 were attached to a 1993 fault record, which stated that no fault had been found. As Detective Superintendent Jeff Penrose suggested, I prepared a statutory declaration naming the Telstra officials (see Destruction of Evidence / Perverting The Course of Justice/Crimes Act 1958 File No/3) to provide to both the TIO and the arbitrator. Even though the TIO was the administrator to my arbitration, the TIO office refused to send anyone back to Telstra’s FOI viewing room with me. As noted in my Chronology of Events for this time period, Telstra’s arbitration liaison officer wrote to the TIO regarding both the TIO-appointed resource unit and AUSTEL censoring Telstra documents before the four COT claimants were able to use them to support their claims: Is this why the TIO’s office wouldn’t help investigate this discovery?
Like the issue of the diaries, the arbitrator refused to discuss Telstra’s conduct of destroying this evidence.
For the purpose of this Crimes Act 1958 segment, it is important to realise that some registered faults, recorded with Telstra before my arbitration, had been deleted/removed from some documents I viewed in Telstra’s FOI viewing room (see Destruction of Evidence / Perverting The Course of Justice/Crimes Act 1958 Evidence File No/1, File No/2 and File No/3). Many of the exhibits, which are part of the COT cases’ chronology of events and have since been provided the Australian prime minister’s office and the AFP, prove the existence of a list of faults I registered over the six years covered by my arbitration claim. Those documents appear to have never arrived at the arbitrator’s office.
The arbitrator supposedly assessed these heavily censored technical documents, which were undecipherable or incapable of identification. Even AUSTEL, in their secret findings recorded in the Cape Bridgewater report, refer to the many letters, diary notes and other evidence that I produced to support my claims. Perhaps the technical report and the final award lacked any reference to that evidence, including my diaries that had so horrified AUSTEL, because the arbitrator and the technical unit could not decipher or identify the heavily censored Telstra documents that proved my business was still suffering with ongoing telephone problems.
On 13 October 1994, the office of the Hon Michael Lee, MP Minister for Communications received a Telstra whistleblower’s letter (see Destruction of Evidence / Perverting The Course of Justice/Crimes Act 1958 Evidence File No/8). This letter makes allegations against one of the two Telstra executives who were involved in altering or deleting information on the documents I viewed at Telstra’s FOI viewing room. Someone has added a hand-written comment on the whistleblower’s letter, pointing to the Telstra executive’s name and noting the TIO “has been critical of [same Telstra representative] on same issue”. This letter, under the heading Concerns and issues, states:
“Steve Black [Telstra] 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 [another Telstra representative] and his senior executives have sought to influence and manipulate:
Remove or change clear information on the position of liability.
Diminish the level of compensation payable to COT customers.
Dismissive of breaches in relation to matters regarding customer Privacy.”
When this document surfaced some four years after my arbitration, it proved what the COTs claimed all along: their cases were crippled before they had even submitted their claims. This particular statement, by the whistle-blower, is telling:
“Steve Black’s approach to these customers has been one of manipulation and deception as in his dealings with the top four COT customers and subsequent eleven customers [name deleted] has lied and deceived these customers.” (See Crimes Act 1958 Evidence File No/8).
The Domino Effect
On the 8 November 2002, the Portland Observer newspaper printed the following:
“Holiday camp still plagued by phone and fax problems
“The telecommunications problems which plagued former Cape Bridgewater Holiday Camp operator Alan Smith have continued to beset current owner Darren Lewis”.
“Mr Smith is a founding member of the Casualties of Telstra (originally known as Casualties of Telecom) formed in 1993. Members of the group have been involved in a long-running feud with Telstra after having incurred income loss because of various phone faults”
The news article then goes onto to state that Mr Lewis has suffered phone problems from whence he took over the business last year.
Darren Lewis wrote to the TIO on 23 January 2003 noting:Within a fortnight of purchasing my business in December 2001, Jenny and Darren Lewis were complaining to our local Federal Member for Parliament the Hon David Hawker MP and the TIO about the many faxing and phone problems they had inherited (see Arbitrator Evidence File No/118).
“As well as speaking to David Hawker’s representative this morning, I also had a disturbing discussion with [name deleted], the Telstra fault technician assigned to my case. [name delete] informed me (in a round-about way) that he is reluctant to supply me with any more information in relation to our phone faults because he knows I am in contact with Alan Smith, the previous owner of the business. Apparently, Telstra is afraid that, when talking to Alan, I might bring up the phone problems and therefore provide him with information he could use in an attempt to reopen his arbitration.”
On the 28 January 2003, a letter from TIO officer Gillian McKenzie to Telstra states:
“Mr & Mrs Lewis claim in their correspondence attached:
“That they purchased the Cape Bridgewater Coastal Camp in December 2001, but since that time have experienced a number of issues in relation to their telephone service. Many of which remain unresolved.
“That a Telstra technician “Tony Watson” is currently assigned to his case, but appears unwilling to discuss the issues with Mr Lewis due to his contact with the previous camp owner, Mr Alan Smith.” (See Home-Page File No/76).
Was there a more sinister motive involved in Telstra’s technician refusing to help Darren Lewis with the ongoing phone/fax problems that, nine years before, Telstra and the arbitrator assigned to my case had failed to investigate transparently? Why was this Telstra technician still holding a grudge against me in 2002/03 because of something my 1994/95 arbitration should have addressed – i.e. the ongoing phone and facsimile problems that this same Telstra technician was now refusing to help Mr Lewis with, nine years later. Threats were nothing new to Telstra as our website shows.
On 4 September 2006, Darren Lewis provided the Hon Senator Helen Coonan, Minister for Communications, Information Technology and the Arts, with a two-page statutory declaration noting:
“Letters from us to our local Federal Member of Parliament, the Hon David Hawker, Speaker in the House of Representatives, led to Telstra visiting our business to investigate these continuing problems.
“After Telstra rewired the business including disconnecting a Telstra installed faulty phone alarm bell, we were informed Telstra had found other problems and believed who ever had installed the wiring had done an unprofessional job.
“Internal Telstra documentation provided to me by Allan Smith confirmed Telstra themselves had done the wiring.
“Jenny and I noticed that although our incoming-call rate had more than doubled once this wiring had taken place Telstra was still unable to provide a satisfactory reason as to why we were still having problems. …
“The technicians then in a hookup consultation with outside office guru’s [sic] did a fault graph reading on our 55 267267 line with the outcome that their office technical staff stated words to the affect [sic] the reading was impossible (couldn’t be correct). It was then that the local technician became quite annoyed when the technical guru insinuated that the equipment the local tech was using must be faulty. The local tech then informed the technical guru that there was nothing wrong with the equipment at all.” (See Main Evidence File No 13)
Most, if not all, of the COT cases suffered from sleep disorders and stress for years as a result of their battles, as Chapter One in Arbitrator Part One shows. On 23 February 2007, after Darren Lewis become suicidal following a confrontation with Telstra over ongoing telephone problems at the camp, a Psychologist from Portland Psychiatric Services visited my Cape Bridgewater residence. She was struggling to understand what Darren was talking about and why he felt suicidal. I provided this Psychologist with documents supporting Darren’s valid claims about Telstra’s defective services, adding that I was sorry that Darren had ended up this way. Post-Traumatic Stress
During this meeting with a Portland, I provided a letter dated 21 March 1999 and addressed to the Casualties of Telstra, C/- The Small Business Show, Channel Nine. This letter suggests that others who had run afoul of Telstra had suicided:
“I watched your show on Sunday morning carrying the piece on Telstra. I was interested to hear of Telstra’s lies under oath, destruction of evidence, etc, etc.
“I started a lawsuit 2½ years ago against Telstra for breach of contract during their cable TV rollout. They have placed every obstacle in our way and dragged the case out to try to bleed us dry. They sent dozens of contracting companies such as mine to the wall by manipulating markets and breaching contracts. Only 3 companies have had the resources to fight them. Unfortunately two company owners have allegedly committed suicide due to the loss of their homes and families as a consequence of Telstra’s actions, although this would be difficult to prove.
“As a direct consequence I have lost my home, separated from my wife, lost hundreds of thousands of dollars and a twenty year old business and fought a very dirty legal battle. My other partners have had to sell or re mortgage homes and one has retired without any of the security he should have had from ownng [sic] a business for over twenty years.” (See Home Evidence File No/7)
I also provided another letter to this Psychologist, dated 8 November 2002, from a man in South Australia, stating:
“I am writing to you following viewing the Channel 9 Sunday Program on 3/11/02. After viewing the Sunday program, I realised the similarities you [sic] business and others had with Telstra some ten years ago with the similarities our building business had, when we lived at Bridgewater.
“During this period of time I was on a call talking to a councilor [sic]. She believed that the conversation we were having was being bugged, or listened into, and we immediately ceased the call.
“Our phone problem had such a negative effect on our building business over a period of time that our work dried up and or [sic] business shut down.” (See Home Evidence File No/15)
I believe that Darren first became concerned about the possibility that his phone conversations also may have been illegally listened to when he discovered my accreditation file in the camp office, where I had inadvertently left it when handing the Camp over to Darren. This file included Australian Federal Police/Telstra intercept documents, including one dated 14 April 1994 from Telstra to the AFP, notifying them that Telstra had installed equipment in the Portland exchange so that a bell would ring whenever I received an incoming telephone call, so that the person on duty could then listen in on those conversations.After reading these two letters Ms Howard drew up a Risk Management Plan for Darren to use (AS 629), including a warning that, if Darren felt suicidal again, he should not only share those thoughts with his wife but also with me as well as with Portland Health.
And now, here was Telstra in 2002/2003 – nine years after my arbitration process – still having not fixed my original telephone problems and making sure that the Lewis’ ongoing telephone problems were also not transparently investigated, because to have done so would have proven just how delusive and undemocratic my arbitration process had been. The Lewis’ lives, as was my life and that of my partner, were insignificant as long as Telstra’s network deception remained protected … at all costs.
Article 12 of The Universal Declaration of Human Rights notes:
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
Up until 2008, I had been pleading for the government and the TIO to understand that, when I received my claim material back from the arbitration, 43 sets of faxed claim material and two spiral-bound volumes of BCI and SVT reports, similar to those that I had provided to Darren to support his case, were missing. I also advised the government that claim material sent by me during my arbitration by Australia Mail was not on the list of arbitrator’s lists of documents received. Neither the government, nor AUSTEL, nor the TIO would investigate why this important claim material never reached the arbitrator.
My letter dated 24 April 2008 and Darren’s letter of 23 December 2008 (see below), taken together, show that material went missing in December 2008, seven months after I wrote to the AAT on 24 April 2008, noting:
“I also hope that you understand why I used a friend’s name and address on the envelope when I first sent my submission, and my apparent paranoia won’t affect your assessment of my claim. As further support for my concern, please also read the last paragraph on page ten in my submission, which discusses Telstra’s [technician] and how he was reluctant to talk to the new owner of my business, Darren Lewis, because Darren was in contact with me. My submission’s Exhibit 4 is a letter from the TIO to Telstra, which also relates to this same issue.” (See Home-Page Evidence File No/42)
My statement in this 24 April 2008 letter regarding using a friend’s address on the back of the envelope so that the letter would not be linked to me, and what happened to Darren’s Telstra related documents on 23 December 2008, show I had good reason to write to the AAT concerning about the security of my mail.
Click on Burying the Evidence and read Chapter Six to learn what members of the Institute of Arbitrators Mediators Australia (IAMA) did (or rather, didn’t do) from 2009 to 2011, after the president of the IAMA, The Hon Michael Kirby AO, agreed to investigate this matter along with my other claims against Dr Hughes. I am sure you will be horrified that so many learned people of the IAMA allowed my submission to go unaddressed after calling for further evidence and advising me, in writing, that my claims were finally being investigated. The IAMA has refused to return my written submission or provide a finding on the material I provided.
Had Telstra and the government communications regulator not concealed the documents they did, as well as their true knowledge of the affect that the ongoing telephone problems were causing my business, I would still own my beloved holiday camp and the Lewses’ lives would not have gone through what they did.
The following segment below is still to be edited as Febraury 2019:- thank you
10 January 1996: Mr Pinnock wrote to Alan (AS 556-A) refused to assist Alan with any arbitration documents even though he knew Alan needed that information in order to launch an appeal noting:
“I do not propose to provide you with copies of any documents held by this office”.
Then, in his letter of 7 May 1996, Mr Pinnock contradicted his earlier refusal to provide documents by suggesting that Alan should “… seek legal advice on the availability of review or an appeal”. Mr Pinnock’s letter of 7 May 1996 does not reveal however that, on 13 February 1996 (AS 179), John Rundell TIO-appointed arbitration Project Manager had already admitted to Mr Pinnock that: “… I did advise Mr Ryan that the final report did not cover all material and working papers.”