It is clear from AbsentjusticeBrief Summary Part 1 – that Telstra and the TIO should never have installed Grant Campbell (seconded from Telstra) as the Deputy TIO while Telstra were the defendants during the COT Fast Track Settlement Proposal / Arbitration procedure.
The Telstra internal memo dated 30 November 1993, FOI document folio D01248, from Telstra’s group manager – customer affairs and TIO council member, to Telstra’s, customer projects executive office. Subject: TIO AND COT were written after I and the other three COT cases had signed our TIO-administered Fast Track Settlement Proposal. This document clearly states:
“At todays [sic] Council Meeting the TIO reported on his involvement with the COT settlement processes – It was agreed that any financial contributions made by Telecom to the Cot arbitration process was not a matter for Council but was a private matter between Telecom, AUSTEL and the TIO.
“I hope you agree with this.”
At the bottom of this memo, the recipient has added a hand-written comment addressing another Telstra executive: “Seems ok to me. When I spoke to Warwick [TIO] I suggested that at least for this first group …” (see TIO Council Conflict of Interest 30 Nov 1993).
Telstra FOI folio document folio D01248 states that:
“It was agreed that any financial contributions made by Telecom to the Cot arbitration process was not a matter for Council but was a private matter between Telecom, AUSTEL and the TIO. I hope you agree with this”.
This TIO Council Conflict of Interest 30 Nov 1993 exhibit shows that, this particular member of the TIO Council, openly discussed COT case in-confidence arbitration issues with Telstra’s executives. NO decent, law abiding citizen can argue that it was acceptable for Telstra, the defendants, to be represented on the TIO council, when ongoing discussions about COT issues could be relayed back to them by this TIO official who was also Telstra’s FOI officer and in charge of deciding which discovery documents were sent out, when, or even IF.
On the 24 May 1995, two weeks after the arbitrator had deliberated on my claim, this same Telstra group manager – customer affairs and TIO council member released 745 FOI documents under the heading “Your FOI Request of May 1994″ i.e.; twelve months after I had originally requested that information. As a TIO Council member as well as being in charge of Telstra’s defence of my arbitration claims he was fully aware when he released these 745 FOI documents that my arbitration had been concluded.
Senate Hansard dated 26 September 1997 (see http://www.aph.gov.au/binaries/hansard/senate/commttee/s1325.pdf), confirm from pages 109 and 110 that a Senate Estimates Committee was advised that this same Telstra arbitration officer never disclosed his conflict of interest during the periods he attended TIO Council meetings when COT arbitration issues were discussed.
Prior to Arbitration
TIO Evidence File No 3-A is an internal Telstra email (FOI folio A05993) dated 10 November 1993, from Chris Vonwiller to Telstra’s corporate secretary Jim Holmes, CEO Frank Blount, group general manager of commercial Ian Campbell and other important members of the then-government owned corporation. The subject is Warwick Smith – COT cases and it is marked as CONFIDENTIAL:
“Warwick Smith contacted me in confidence to brief me on discussions he has had in the last two days with a senior member of the parliamentary National Party in relation to Senator Boswell’s call for a Senate Inquiry into COT Cases.
“Advice from Warwick is:
- Boswell has not yet taken the trouble to raise the COT Cases issue in the Party Room.
- Any proposal to call for a Senate inquiry would require, firstly, endorsement in the Party Room and, secondly, approval by the Shadow Cabinet. …
- The intermediary will raise the matter with Boswell, and suggest that Boswell discuss the issue with Warwick. The TIO sees no merit in a Senate Inquiry.
“He has undertaken to keep me informed, and confirmed his view that Senator Alston will not be pressing a Senate Inquiry, at least until after the AUSTEL report is tabled.
“Could you please protect this information as confidential.”
Exhibit TIO Evidence File No 3-A confirms that two weeks before the TIO was officially appointed as the administrator of the Fast Track Settlement Proposal FTSP, which became the Fast-Track Arbitration Procedure (FTAP) he was providing the soon-to-be defendants (Telstra) of that process with privileged, government party room information about the COT cases. Not only did the TIO breach his duty of care to the COT claimants, he appears to have also compromised his own future position as the official independent administrator of the process.
Perhaps the advice the TIO gave to Telstra’s senior executive, in confidence, (that Senator Ron Boswell’s National Party Room was not keen on holding a Senate enquiry) later prompted Telstra to have the FTSP non-legalistic commercial assessment process turned into Telstra’s preferred legalistic arbitration procedure, because they now had inside government privileged information: there was no longer a major threat of a Senate enquiry.
On 3 June 1993, because of my constant complaints to the regulator, including incorrect charging, Telstra’s network investigations department was finally involved and, for the very first time, Telstra investigators were sent to Cape Bridgewater. At last, I thought, I would be able to speak directly to people who knew what they were talking about and find the underlying cause of the issue. However, the two Telstra senior technicians from Melbourne told me nothing I hadn’t heard before. With nothing resolved, they finally prepared to leave and head back to town.
The important documents left in that briefcase provided evidence that discussed the manner in which they settled with me in December 1992. Telstra had known that major faults still existed in their network at the time of the settlement (see Main Evidence File No 26 for example) but they did not disclose this to me during the settlement process. The documents quickly exposed that Telstra were fully aware their inadequate service and the major communication problems were affecting the viability of my business endeavours.
Senator Richard Alston (Shadow Minister for Communications) discussed the Problem 1 document on 25 February 1994 during a Senate Estimates hearing. Another previously unseen document, dated 24 July 1992 and provided to Senator Richard Alston in August 1993, includes my phone number and refers to my complaint that people ringing me get an RVA “service disconnected” message. Yet another document, dated 27 July 1992, discusses problems experienced by potential clients who tried to contact me from Station Pier in Melbourne. (See Arbitrator File No 60). Some of these hand-written records go back to October 1991, and many of them were fault complaints that I had not recorded myself. Telstra, however, has never explained who authorised the withholding of these names (those who had complained to Telstra) from me. If I had known who had been unable to contact me, I could have contacted them with an alternate contact number for future reference. Has the withholding of these names and the unavailability of my past historic fault documents related to the Jim Holmes issues mention below i.e. (see documents (A01554, A06507 and A06508 –TIO Evidence File No 7-A to 7-C)?
On 27 August 1993, Jim Holmes, Telstra’s corporate secretary (also TIO Board Member) wrote to me about the same ‘briefcase’ documents, noting:
“Although there is nothing in these documents to cause Telecom any concern in respect of your case, the documents remain Telecom’s property and therefore are confidential to us.”
Later in the letter:
“I would also ask that you do not make this material available to anyone else.”(See Open Letter File No/2)
Telstra’s FOI document dated 23 August 1993 and labelled as ‘folio R09830’ with the subject listed as ‘The Briefcase’ is alarming to say the least. This document, which had been copied to Jim Holmes, notes:
“Subsequently it was realised that the other papers could be significant and these were faxed to (name deleted)but appear not to have been supplied to Austel at this point.
“The loose papers on retrofit could be sensitive and copies of all papers have been sent to.”(See Arbitrator File No 62)
Jim Holmes continues
Telstra’s corporate secretary Jim Holmes was advised in three emails (A01554, A06507 and A06508) that the Leopard Fault data – Telstra’s technical data regarding exchange faults – was destroyed after 12 months. Mr Holmes was a member of the TIO board when the first four COT claimants, Gillan, Garms, Schorer and I, signed our arbitration agreements, but it seems Mr Holmes did not warn the government (which, after all, endorsed the arbitration agreements) or the TIO, who administered the arbitrations, that claimants would not be able to support their claims effectively because Telstra destroyed all historical data, at least from 1992 on. Have Telstra and The Hon Richard Alston and his fellow coalition government ministers ever considered what followed, after Telstra kept this serious matter secret? Have Telstra and the Australian government ever considered the financial cost to each claimant as we tried to access information Telstra knew was destroyed years before we went into arbitration? Each COT case accumulated costs that ran into hundreds of thousands of dollars while trying to access this non-existent fault data (and other Telstra data) to support our arbitration claims. Has the Senate ever considered the cost – not just in dollars – of the 18 months many senators spent from 1997 to 1999 assisting the COT cases in attempting to access technical documents that Telstra knew were destroyed years before? Telstra’s corporate secretary Jim Holmes knew this, as emails A01554, A06507 and A06508 show (see TIO Evidence File No 7-A to 7-C) , and he signed all four FTSP agreements for the four COT cases on 18 November 1993, while he was a TIO board member attending monthly board meetings where COT cases’ arbitration issues were discussed. Yet he never advised the TIO of what he knew concerning the destroyed documents we were trying to access. This situation is an example of why the COT arbitrations were such a mockery of the Australian legal system.
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 fault data.
Further, the Commonwealth Ombudsman, Ms Phillipa Smith, and her director of investigations, John Wynack, were not told about this destroyed data when they commenced their investigation into the four COT cases’ FOI issues in January 1994. They were still investigating these FOI issues in January 1999: FIVE years wasted in searching for documents that were destroyed years before. The extent of the costs involved, as a direct result of Telstra concealing this destruction of documents, is phenomenal.
In 2006, when Trevor Hill was the Chairman of the TIO Board, and after he had received all three of these emails, if he had just notified the Government then, about the problems that Telstra’s destruction of all historic fault data had created for the COTs, there may have been a very different outcome to Senators Joyce and Coonan’s March 2006 Government evaluation of whether there was merit in the COT claims against Telstra. If nothing else, at least the Government bureaucrats would then have known that the allegations made by the COT Cases in relation to their FOI problems did have merit and some of those fourteen COT Cases might have been reopened by the Department of Communications, Information Technology and the Arts (DCITA).
When the truth about a particular citizen is deliberately hidden, that often results in exactly the sort of situation that occurred, not just during the COT arbitrations in 1994 and 1995, but which festered on for another eleven years and which brought to a complete halt any proper assessment of my DCITA March/April 2006 claim that the Hon David Hawker MP, Speaker of the House of Representatives, helped me to present to Senator Coonan, a claim that clearly advised the DCITA assessors that I had experienced serious FOI problems that disrupted my 1994/95 arbitration.
Jim Holmes, Chris Vonwiller and Ted Benjamin
If any party reading today’s affirmation researches Chris Vonwiller, they will uncover that at the time of this document he was under investigation by various senators for misleading the Senate concerning two COT cases and the telephone exchange their businesses were connected to. It has now established that Mr Vonwiller did mislead the government in this regard.
Both Jim Holmes and Chris Vonwiller were on the TIO board at that time with Jim Holmes regularly attended TIO monthly meetings through to at least June 1994, when COT arbitration matters were discussed.
The Senate Hansard of 26 September 1997 shows Telstra’s Ted Benjamin, a member of the TIO council, agreed with the second TIO, John Pinnock, that COT arbitration matters were discussed at TIO council meetings. The Senate slammed this conduct of the TIO allowing the defendants (Telstra) to be present during these meetings when no COT members were present, as possibly the most undemocratic situation for any ombudsman to have allowed.
Further, this affirmation shows Ted Benjamin waited a full 12 months before releasing to me, on 23 May 1995, my original FOI request of May 1994. I presume he gained knowledge that Dr Hughes would bring down my award on 11 May 1995 through his attendance at these TIO council meetings, and therefore waited until after the 11 May 1995, before releasing the most explosive three documents of the whole arbitration process.
Three documents, N00005, N00006 and N000037 (which were part of the late-released FOI documents) are discussed on page six of my BCI report on this matter (see Telstra’s Falsified BCI Report. Had Ted Benjamin released this information in May 1994, during my arbitration instead of after, Dr Hughes’ award would be vastly different: he could not have possibly brought down a finding until Telstra gave good reason why they knowingly submitted false information to at least one of their witnesses, Mr Ian Joblin, concerning the Cape Bridgewater BCI tests.
This collusion and undemocratic situation, of the first TIO Warwick Smith and second TIO John Pinnock allowing the defence to be present during arbitration discussions, does not stop there.
Every six or so months in our Australian parliament, inside party-room leaking of government-privileged information surfaces and the person responsible is held to account. Warwick Smith giving in-confidence COT case coalition government-privileged information to Telstra is one thing, but for Warwick Smith to be appointed the administrator of the COT FTSP within 13-days of this 10 November 1993 email and then to allow both Telstra’s Jim Holmes, Chris Vonwiller and Ted Benjamin to be present at the TIO monthly meetings is a matter of grave concern especially as one of those TIO members misled and deceived the Senate about the telephone exchanges of COT cases Ann Garms and Maureen Gillan.
The TIO office has never answered whether other telephone exchanges were discussed at these TIO council and board meetings, when COT cases’ arbitration claim material discussed the poor performances of exchanges. The COT cases will never know what deliberate wrong advice these three Telstra executives gave to the TIO, at TIO council and board meetings, which then trickled back to the arbitrator and the TIO-appointed resource unit. How can you have only the defendants present at these monthly council and board meetings (two meetings per month) without one claimant present?
Telstra’s own internal email (I masked Ted Benjamin’s name) shows Ted Benjamin was providing Telstra’s Ian Campbell with TIO council-privileged COT case information. (See following link > Arbitrator File No/70 A, FOI folio D01248)
How can the Australian government disregard that Warwick Smith crossed the floor, by discussing government-privileged information with Telstra and then allowing three of its executives to be present at the monthly TIO council and board meetings? This placed all of the COT case arbitration processes into disrepute.
Open Letter File No/56-A to 56-D show Telstra’s Grant Campbell was associated with my settlement/arbitration in the very early days. This facsimile cover sheet (File No/56-A) from Mr Campbell to Warwick Smith concerning Allan [sic] Smith – Cape Bridgewater Holiday Camp, and the expression of interest by Ferrier Hodgson, discusses my ongoing faxing problems.
When these documents came to light, they confirmed Grant Campbell was officially signing off correspondence on behalf of Warwick Smith, including official FTSP correspondence.
Neither Warwick Smith, nor anyone from the TIO’s office, ever informed me that Grant Campbell was temporarily seconded from Telstra to Warwick Smith’s office, where the TIO gave him the power to scrutinise my claim material. And, without any checks by anyone, including Dr Gordon Hughes (then appointed assessor) or Ferrier Hodgson Corporate Advisory (the resource unit). Like Telstra council and board members Ted Benjamin, Chris Vonwiller and Jim Holmes, Grant Campbell had free range at the TIO office and was allowed to formally classify my ongoing telephone and fax problems as ‘new’ problems and therefore not connected to my FTSP claim, despite Warwick Smith and Mr Campbell being fully aware, at the time, that this was not the case.
Open Letter File No/56-E to 56-G record my ongoing telephone and faxing problems from at least October 1993. These documents were supplied to Warwick Smith as the official administrator, on 27 January 1994, to forward to Dr Gordon Hughes, Mr Peter Bartlett and Mr John Rundell. An interim claim dated 27 January 1994 is available at Open letter File No/46-A
I continue to demand answers as to why Dr Hughes and John Rundell never addressed this first part of my FTSP claim and, as of January 2017, I have not received advice as to why it was not discussed in the arbitrator’s written findings. Are we to presume that, like many of my unaddressed claim documents, this information never reached the assessor/arbitrator because Telstra’s Grant Campbell and the arbitration resource unit had first access to which documents would be submitted to the arbitrator (in a secret deal arrangement entered into by Telstra, Warwick Smith and the arbitration resource unit)?
FOI documents were provided to Australian Liberal/National Party executives, including the previous prime minister, Tony Abbott. These documents prove I was not told Mr Campbell was seconded from Telstra during my FTSP: I believed Mr Campbell was a TIO employee. I did not know that, when I presented him with various 008/1800 billing FTSP claim exhibits, proving Telstra had a national network 008/1800 billing problem, I was helping the defence and severely damaging my claim.
These same FOI documents also show that, after Mr Campbell returned to Telstra, he began addressing the same 008/1800 billing problems he previously assessed in connection to my case while wearing his TIO hat, only now he was making those assessments while wearing his Telstra hat in relation to another COT claimant from Brisbane, Queensland.
To have allowed the defendant access to the opposing side’s claim material, before the claimant decided which information to submit to the assessor and/or arbitrator and which to keep back in order to answer the defendant’s defence, was highly undemocratic conduct: how can a Western democracy allow this to happen?
In most Western democracies, if such conduct during a litigation process is brought to the attention of the authorities, then those responsible for that conduct and those who allowed it to flourish, are held accountable for the damage they caused. The TIO’s office and Telstra have never assisted me to resolve this issue, and this confirms what I say on absentjustice.com: there is one law in Australia for the bureaucrats and another for the man on the street. Grant Campbell signed a letter to Telstra, dated 9 February 1994, while wearing his TIO hat and on behalf of Warwick Smith. Regarding my loss of fax capacity, he states:
“I spoke with Alan Smith on 9th instant following on the 8th instant [sic].
“He has agreed that this is a new matter and whilst it may be indicating some ongoing problems, it is not a matter that relates directly to the preparation of his material to be presented to the Assessor.” (See Open Letter File No/56-B)
This comment however does not correlate with the many problems I continued to experience and record, throughout my FTSP, nor the 31 January 1994 account for my dedicated fax line, including the following exhibits.
A letter, dated 21 January 1994, that I received from my FTSP accountant, Selwyn Cohen, states:
“I refer to your facsimile of 10.42 a.m. on 17th January 1994. The fax cover sheet refers to 7 pages being sent. Unfortunately, I only received 2 pages.
“Please forward the remaining 5 pages to enable me to begin the required work.” (See Open Letter File No/56-D)
A letter from Stedman Cameron, dated 2 February 1994, states:
“We note that you did not receive two pages at all and only the number 2 from the third page and the signature from the last page of the facsimile sent to you at approximately 2.23 p.m. on the 1st February, 1994.
“It was successfully sent approximately two hours later.” (See Open Letter File No/56-E)
Open Letter File No/56-F is a letter, dated 25 February 1994, from the minister for communications’ office, detailing the ongoing telephone and faxing problems I was experiencing. My interim letter of claim, dated 27 January 1994, addressed to Dr Hughes, Warwick Smith, Peter Bartlett and John Rundell (see Open Letter File No/ 46-A) had a 37-page report attached to it showing massive ongoing faxing problems beginning in January 1993, at the latest.
I gave two pages of data from Telstra’s Call Charge Analysis System (CCAS) Grant Campbell and Warwick Smith. These printouts (see Open Letter File No/56-H) are particularly interesting because a handwritten list on them indicates Telstra secretly monitored and recorded people I spoke to on the phone or faxed in connection to my FTSP.
Not so amazing is the fact that none of the information I document above, concerning loss of faxing capacity, is mentioned anywhere in Dr Hughes’ award or the DMR and Lane reporting, which suggests that Telstra’s Grant Campbell thought it important to misinform all interested parties concerning my settlement/arbitration faults in order to minimise Telstra’s liability.
Open Letter File No/56-C shows my faxing problems were still continuing in October 1993. This also contradicts Mr Campbell’s statement, on 9 February 1994 (see Open Letter File No/56-B), that I advised him these faxing faults were new problems.
Open Letter File No/56-G is a Telstra two-page internal memo, dated 3 March 1995, for the attention of D Campbell, T Benjamin, S Black and G Campbell. Ted Benjamin and Steve Black were, in March 1995, Telstra’s arbitration liaison officers to my arbitration and Grant Campbell was well situated in Telstra’s arbitration unit. Doug Campbell was Telstra’s group general manager of operations, possibly the worst of Telstra’s “dirty-tricks departments” (so named in the Senate Hansard of 26 September 1997). All four employees were firmly involved in my arbitration. How is it possible that Warwick Smith allowed Grant Campbell anywhere near my claim documents? My FTSP claim documents that were originally addressed to Dr Hughes, Peter Bartlett, Warwick Smith and John Rundell (see Open letter File No/46-A) have never been returned to me.
Telstra FOI documents show that, after Mr Campbell returned to Telstra, he began addressing the same type of problems he had previously assessed in connection to my case while wearing his TIO hat, only now he was making those assessments while wearing his Telstra hat in relation to another COT claimant from Brisbane, Queensland.
The fact that Grant Campbell, signed off known-false information he had conjured in his letter to Telstra concerning my faxing matters is alarming to say the least. That Warwick Smith, the then Telecommunication Industry Ombudsman, appears to have allowed a seconded Telstra employee to sign off letters, on his behalf and without checking the authenticity of what Mr Campbell stated concerning my FTSP arbitration issues, is beyond contempt when you consider Telstra was the defendant in that arbitration.
To have allowed the defendant access to the opposing side’s claim material, before the claimant decided which information to submit to the assessor or arbitrator and which to keep back in order to answer the defendant’s defence, was highly undemocratic: how can a Western democracy allow this to happen? Did The Establishment consider this – and that Dr Hughes wrote to Warwick Smith, on 12 May 1995, to advise the arbitration agreement used on my arbitration the day before (see Open Letter File No 55-A) was grossly deficient and needed to be revised, but used it anyway and concealed this letter from me during my appeal period – when awarding both Warwick Smith and Dr Hughes The Order of Australia?
Not only did Warwick Smith allow Grant Campbell access to my claim material, but he then allowed his own resource unit to also have first access to Telstra arbitration procedural information, in a secret deal concocted with the defendants, which allowed the resource unit to decide what documents THEY believed the arbitrator should see and which should be discarded (see Arbitrator / Part Two, Chapter Six to Chapter Nine). This is why the other COT cases and I are still fighting for our right to a fair, properly conducted, transparent, arbitration process.
We have raised the issue of this Grant Campbell fax capacity issue here because Dr Hughes’ technical Resource Unit never provided me with the results of their investigations into the lost faxes, even though it cost me close to $200,000.00 to participate in the arbitration process; and even though clause 11 in the official Arbitration Agreement notes: ‘The Arbitrator’s reasons will be set out in full in writing and referred to in the Arbitrators award, the lost fax issues were not referred to: ‘in full in writing’ in the Arbitrators award. Or were my complaints that because I assisted the Australian Federal Police with their own investigations into Telstra’s unauthorized interception into my telephone conversations and faxes to and from my office (see Senate Evidence File No 31)
Like Grant Campbell, Warwick Smith and his appointed Arbitration Technical Resource Unit they appear to have misunderstood the significance of the 008/1800 problem, because they failed to alert Dr Hughes that the 008/1800 service Alan used was actually routed through his main service line, 055 267 267, the line that one of the two faulty EXICOM phones was connected to – the phone that was prone to lock-up after each terminated call. In other words, when the Resource Unit advised John Pinnock (TIO) on 15 November 1995, and Dr Hughes on 2 August 1996 (Open letter File No/45-A to 45-I), that my 008/1800 billing claims were not addressed, they were also admitted to not investigating or addressing my main service line 055 267 267.
Was there a more sinister motive behind the decision to ignore my billing claims, the same 008/1800 billing faults that Telstra’s Grant Campbell was investigating while working with the TIO (on secondment from Telstra) and then working on again, later, after he went back to Telstra to work alongside TIO Council Member Ted Benjamin?
Did Ted Benjamin’s relationship with Telstra and the TIO Council have anything to do with his later relationship with Grant Campbell? There appears to be NO doubt that this particular issue – of Grant Campbell addressing 008/1800 problems on behalf of the TIO and then on behalf of Telstra, all during my arbitration – created a massive conflict of interest.
Could it be that, when I told Mr Campbell that he needed all the documents related to his earlier settlement, from before December 1992, so he could show how undemocratic this 1992 settlement process was, that Mr Campbell then passed that information straight on to Telstra, thereby effectively alerting Telstra to which documents they could ‘lose’ because it was relevant to Alan’s case? It is also interesting to connect this issue to a letter written on 11 November 1994, to Telstra from the Commonwealth Ombudsman’s Office, asking why the earlier settlement material that I had requested under FOI had still not been supplied to him.
The TIO’s June 1994 annual report has no record of Mr Campbell working in the TIO office during the period he was signing off letters for Warwick Smith. This suggests he was on the defendant’s payroll when he gave out this false information concerning my phone and fax services.
FTSP – Commercial Assessment v FTAP – Arbitration
To present this statutory declaration in some sort of chronology of events we need to begin before April 1994, when the appointed commercial assessor decided, with the first TIO and the defendants (Telstra), to turn the commercial assessment, FTSP, into a highly legalistic arbitration process. Telstra’s lawyers controlled at least 33 of Australia’s largest legal firms and most, if not all, of Australia’s technical resource units (see Senate Hansard for 24 June and 26 September 1997). By using Telstra’s drafted arbitration agreement, faxed to the TIO on 10 January 1994, Telstra had their foot in the door to control the whole arbitration process. Later, Dr Hughes alerted the TIO, in his letter of 12 May 1995 (see Open Letter File No/56-A), that they were duped by Telstra into using an agreement that did not allow enough time for the:
“inevitable delays associated with the production of documents, obtaining further particulars and the preparation of technical reports”.
The only choice these two lawyers should have had was to admit they misled and deceived the four COT cases, the claimant’s lawyers and many of Australia’s government ministers, including the Canberra Parliament House press gallery, into believing the arbitration agreement was totally prepared independently of Telstra, when this was far from the truth, as they both knew. Instead, they decided to conceal, what they had done and by doing so they have stolen 22-years of our lives.
On the 18 November 1993, this same Chairman would not confirm this assurance in writing because, he explained, it could set a precedent. Telstra’s Corporate Secretary had written to him on 18th November 1993 (FOI D01274 to D01276, pointing out that:
“(3) Telecom does not accept the COT Cases’ grounds for reviewing the earlier settlements. However, on the basis of a denial of liability and without any legal obligation to do so and purely as a matter of good faith and business expediency, Telecom is prepared to agree to the above mentioned review.
(4) This proposal constitutes and offer open to all or any of the COT Cases referred to in Clause (1) (a), which will lapse at 5 pm Tuesday 23 November 1993. This offer may be accepted by signature below and sending advice of such signature to AUSTEL or the Telstra Corporate Secretary before that time.”
On the 23 November Graham Schorer, Ann Garms, Maureen Gillan and I signed the FTSP, trusting in the Regulator’s verbal assurances that consequential losses would be included. These signed FTSP agreements were forwarded to Telstra’s corporate secretary. Alan included a letter with his agreement, clearly putting his expectations of the process:
“In signing and returning this proposal to you I am relying on the assurances of Mr Robin Davey, Chairman of Austel, and Mr John MacMahon, General Manager, Consumer Affairs, Austel, that this is a fair document. I was disappointed that Mr Davey was unwilling to put his assurances in writing, but am nevertheless prepared to accept what he said.
It goes on to say:
I would not sign this agreement if I thought it prevented me from continuing my efforts to have a satisfactory service for my business. It is a clear understanding that nothing in this agreement prevents me from continuing to seek a satisfactory telephone service.”
The four COT members felt some sense of achievement, although Maureen’s health was beginning to fail. The pressure on all four of them had been immense, with TV and newspaper interviews as well as their continuing canvassing of the Senate. The stress was telling by now, but Alan continued to fight for a change in rural telephone services.
The Hon David Hawker MP, Bridgewater’s local Federal Member of Parliament had been corresponding with Alan since 26th July 1993
“A number of people seem to be experiencing some or all of the problems which you have outlined to me.”
It goes on to say…
“I trust that your meeting tomorrow with Senators Alston and Boswell is a profitable one.”
and on 18th August 1993:
“Further to your conversations with my electorate staff last week and today I am enclosing a copy of the correspondence I have received from Mr Harvey Parker, Group Managing Director of Commercial and Consumer division of Telecom.
I wrote to him outlining the problems of a number of Telecom customers in the Western Districts, including the extensive problems you have been experiencing.”
On 30 November 1993, this Telstra internal memo FOI document folio D01248, from Ted Benjamin, Telstra’s Group Manager – Customer Affairs and TIO Council Member writes to Ian Campbell, Customer Projects Executive Office. Subject: TIO AND COT. This was written seven days after Alan had signed the TIO-administered Fast Track Settlement Proposal (FTSP). In this memo Mr Benjamin states:
“At today’s Council Meeting the TIO reported on his involvement with the COT settlement processes. It was agreed that any financial contributions made by Telecom to the Cot arbitration process was not a matter for Council but was a private matter between Telecom, AUSTEL and the TIO.
I hope you agree with this.”
This shows that Telstra was partly or wholly funding the arbitration process.
If the process had been truly transparent then the claimants would have been provided with information regarding the funds – specifically, the amounts provided to the arbitrator, arbitrators resource unit, TIO and TIO special counsel for their individual professional advice throughout four COT arbitrations.
It is still not known how the arbitrator billed Telstra for his professional fees or how the TIO billed Telstra for his fees, and those of the TIO-appointed resource unit and special counsel. This raises the questions:
- Was the arbitrator and resource unit paid on a monthly basis?
- Did the resource unit receive any extra bonus for being secretly appointed as the second arbitrator in determining what arbitration documents the arbitrator was allowed to receive and what was withheld (see letter dated 11th July 1994, from Telstra to Warwick Smith)?
Without knowing how these payments were distributed by the defendants to the parties involved in the first four arbitrations, it would be impossible for the TIO and AUSTEL (now the ACMA) to continue to state that the COT arbitrations were independently administered.
To summarise the issue: during these four arbitrations, the defence was allowed to pay the arbitrator and those involved in the process. How is this different to the defendant in a criminal matter being allowed to pay the judge? It is a clear and concerning conflict of interest.
Pages 109 to 110 of Senate Hansard, dated 26 September 1997 (see senate – Parliament of Australia), confirms that during a Senate Estimates hearing into COT issues, the then-new TIO, John Pinnock, agreed that Mr Benjamin had not removed himself from Council discussions when COT arbitration matters were discussed:
Senator SCHACHT – “…Mr Benjamin, you may think that you have drawn the short straw in Telstra, because you have been designated to handle the CoT cases and so on. Are you also a member of the TIO Board?
Mr Benjamin – “I am a member of the TIO council”.
Senator SCHACHT – “Were any Cot complaints or issues discussed at the council while you were present?”
Mr Benjamin – “There are regular reports from the TIO on the progress of the Cot claims”.
Senator SCHACHT – “Did the council make any decision about Cot case or express any opinion?”
Mr Benjamin – “I might be assisted by Mr Pinnock”.
Mr Pinnock – “Yes?”
Could there possibly be a more sinister political twist to Mr Benjamin being allowed to attend TIO Council meetings when the COT arbitration claims were being discussed? It certainly seems that there could be, because it was Mr Benjamin who was in control of which documents the COT claimants could be received in response to their FOI requests, and when that information would be released. It is believed this ties in with Mr Benjamin’s constant pressure for the TIO to investigate these FOI issues and the TIO’s reluctance to do so, since he had already supplied private COT / government particulars to Telstra members of the TIO Board.
The two above Senate Estimates Committee Hansards above, gives good argument that neither, Ted Benjamin or Graeme Ward should have been on the TIO Board and Council during the COT arbitrations.
So as the reader fully understands how undemocratic it was for the COT Cases to have been placed in such a terrible situation by the TIO office is, when Jim Holmes vacated his position on the TIO Board in June (thereabouts), that position went To Telstra’s Graema Ward. That position was not offered to any of the COT Cases.
On 24 October 1997, John Pinnock (TIO) writes to Ms Pauline Moore, Secretary Senate Environment, Recreation, Communications and the Arts Legislation Committee stamped (CONFIDENTIAL) noting:
“…I refer to previous correspondence and discussions with the Committee’s Research Officer, Ms Ducker, concerning a series of questions put on notice by Senator Boswell and arising out of the Committee’s proceedings of 26 September 1997.
The COT Arbitration Procedures contain provisions relating to the confidentiality of the proceedings which bind the parties. Those provisions also bind the Arbitrators, the Resource Unit, the Special Council and the TIO in my roll as Administrator. Accordingly, I ask that the answers given below to the questions on notice be treated as confidential by the Committee and not published:
- Yes, from time to time I received complaints from foundation COT members, concerninga range of matters, including alleged non-compliance with the rules of the Fast Track Arbitration Procedure by Telstra and/or the Arbitrator and/or the Technical and Accounting Resource Unit. Identifying individual instances of complaints and detailing The response taken will require a huge amount of administrative resources in searching TIO files.
- Yes, I have refused to provide COT members with a copy of Telstra’s Preferred Rules of Arbitration. A copy of this document was not provided because it was historical interest only, and the COT members did not advance any argument as to why it was relevant to their arbitration. A copy is provided for the information of the committee”.
The TIO was a privately funded ombudsman and as such did not have the authority to refuse to provide the COT claimants with a copy of Telstra’s “Preferred Rules of Arbitration”. FOI documents prove that these ‘preferred rules’ were faxed to the then-administrator of the FTSP, Warwick Smith (TIO), on 10th January 1994, even though Garms, Gillan, Schorer and Smith were then operating under the FTSP Commercial Assessment process which all four had signed by 23rd November 1993.
Alan Smith submitted the first section of his FTSP claim on 27th January 1994, without knowing that Telstra had already faxed their “Preferred Rules of Arbitration” to Warwick Smith and was pressuring the TIO to use their version of an arbitration agreement in preference to the already signed agreement.
On page two of the award Dr Hughes handed down on the Smith arbitration on 11th May 1995, he notes: “…at my request, an arbitration agreement was prepared by Mr (now Judge) Frank Shelton of Messrs Minter Ellison and settled by Messrs Minter Ellison with me, Telecom and the four COT Case persons concerned”. When the claimants were forced to abandon the already-operating FTSP Commercial Assessment, and while the FTAP agreement was being drawn up, the claimants were never advised that Telstra had actually drafted the arbitration agreement. It can therefore only be assumed that, when Warwick Smith was the TIO, and again when John Pinnock took over that role, they each refused to provide a copy of Telstra’s ‘Preferred Rules of Arbitration’ to the claimants because that would have revealed that they had agreed to the COT arbitrations being conducted according to a Telstra agreement and not the independently designed agreement that the claimants had been told had been drafted by Dr Hughes and Minter Ellison (the TIO’s Special Counsel).
The fact that both Warwick Smith and John Pinnock refused to provide the claimants Telstra’s ‘Preferred Rules of Arbitration’ proves that the TIO’s office has not been transparent in their dealings with the Garms, Gillan, Schorer and Smith COT arbitrations.
We know now that the TIO, the TIO’s Legal Council and the arbitrator secretly agreed to accept Telstra’s ‘Preferred Rules of Arbitration’ from the very beginning, and those rules included time frames chosen by Telstra. We also know that when Dr Hughes condemned the (Arbitration Agreement) as not credible on `12th May 1995, (see Exhibit 18 above) he was in fact really condemning Telstra’s ‘preferred rules’ which he and Warwick Smith has secretly used in the arbitration process and it was this agreement that did not allow enough time “for the production of documents, obtaining further particulars and the preparation of technical reports” and the rules therefore made the whole arbitration process unworkable.
Did it not occur to the TIO, the TIO’s Legal Counsel or the arbitrator that Telstra may have deliberately set up their ‘preferred rules’ so they could intentionally drip feed documents to design rules that would favour Telstra?
In this letter dated 26 June 1998, to Graeme Ward, from Senator O’Chee notes:
“I refer to your letter of 22nd June 1998 to Senator the Hon Richard Alston. I note in your letter’s last page you suggest the matter of the alteration of documents attached to statutory declarations should be dealt with by the relevant arbitrator. I do not concur. I would be grateful if you could advise why these matters should not be referred to the relevant police.”
In fact, Mr Ward should never have been involved in this serious Telstra / COT issue while he was also an active member of the TIO Board.
Senator O’Chee’s letter suggests that Mr Ward wanted these matters dealt with by the arbitrator, rather than the law, because the outcome would then be more likely to favour Telstra. This is yet another indication of the unhealthy relationship that existed between the TIO Board, the TIO Council, the FTAP arbitrator and Telstra.
This letter dated 7 November 1997. to Ms Pauline Moore, Secretary Senate Environment, Recreation, Communications and the Arts, Legislation Committee from John Pinnock (TIO) notes:
“I refer to your letter of 31st October 1997, seeking further advice, on behalf of the Committee arising out of my answers to Questions on Notice. I also note that the Committee wishes me to identify any documents, provided in response to questions from the Committee, that I request remain confidential and to provide reasons for my request. To date the only document which I have supplied to the Committee has been a copy of Telstra’s Preferred Rules of Arbitration, (see my answers to Q.10 of Senator Boswell’s questions). In my letter of 24 October 1997, I set out my reasons for seeking confidentiality in relation both to information and documents supplied in that letter”.
Neither Ann Garms, Graham Schorer nor I have ever seen a copy of the letter dated 24th October 1997 that Mr Pinnock refers to, or the attachments that went with that letter.
This letter, dated 20 January 1994, from Ms Philippa Smith, Commonwealth Ombudsman to Telstra’s corporate secretary Jim Holmes, notes:
“I received complaints from three of the ‘COT Cases,’ Mr Graham Schorer, Mr Alan Smith and Ms Ann Garms, concerning TELECOM’s handling of their applications under the Freedom of Information Act (FOI Act) of 24 November 1993 and 21 December 1993 respectively. …
“All three assert that they require the information to support their submissions to the imminent review in accordance with the Fast Track Settlement Proposal (FTSP) agreed between TELECOM and AUSTEL, and endorsed by the then relevant Minister.” (Home Page – Part One File No/2-A to 2-E)
On 25 March 1994, Ms Philippa Smith wrote to Telstra’s CEO Frank Blount, stating:
“It was unreasonable for Telecom to require the participants to make further assurances while Telecom was considering the Agreement and thereby denying the participants the opportunity to consider the rules that Telecom wished to have included in the Agreement.” (Home Page – Part One File No/2-B)
Again, on 6 May 1994, Ms Philippa Smith wrote to Telstra’s CEO, Frank Blount, stating:
“I should be grateful if you would now respond to the outstanding matters raised in my letter of 25 March 1994 ie
- Comment on my views that:
- it was unreasonable for Telecom to impose a condition for release of certain documents that the participants make further assurances that they will participate in the FTSP; and
- it was unreasonable for Telecom to require the participants to make the assurances while Telecom was considering the agreement related to the FTSP (the Agreement) and thereby denying the participants the opportunity to consider the rules that Telecom wished to have included in the Agreement.” (Home Page – Part One File No/2-C)
Regardless of the government and the relevant minister endorsing COT arbitrations, as confirmed by Ms Philippa Smith, in her 20 January 1994 letter, and regardless of both the TIO and the government being aware the arbitrator had no control over the arbitrations (see Arbitrator File No/71), the government only assisted five of the 21 COT cases to resolve their long outstanding claims. (See the An Injustice to the Remaining 16 page, in the menu bar).
Ambit of the Victorian Commercial Arbitration Act 1984
While the ambit of the Victorian Commercial Arbitration Act 1984 issue appears on the Senate Page / File No/71, it is important to raise it here too, in our Home Page Part One.
On 24 January 1994, this letter to Dr Hughes (arbitrator) from Frank Shelton, the TIO special counsel, provides further proof the first four arbitrations were to be conducted according to the “ambit of the Commercial Arbitration Act 1984”. Frank Shelton was 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.
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 a Senate estimates committee hearing and the communications minister’s office, on 26 September 1997, that the arbitrator had no 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 and declared 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. Neither the arbitrator nor the TIO (the administrator) ever gave me an amended document during my arbitration.
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.
On 17 February 1994, during this official arbitration meeting, Graham Schorer (COT spokesperson) asked Dr Hughes 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 both the arbitrator and the TIO’s special counsel stated, “they had not received this document and had not read it and that it was irrelevant”. However, Arbitrator File No/104 confirms the arbitrator was provided with a document called “Telstra Corporation Limited – ‘Fast Track’ Proposed Rules of Arbitration” before 18 January 1994, one month before this meeting.
In fact, Arbitrator File No/105, dated 24 January 1994, confirms both the arbitrator and a representative of the TIO’s special counsel read Telstra’s proposed rules. And they actually used that document as the basis for the final arbitration agreement: the version presented to the first four COTs for signing the very next month. This was the version that we were assured had been drafted totally independently. During the first official arbitration meeting, before the COTs had signed their arbitration agreements and even before he was officially appointed, the arbitrator was already misleading and deceiving the claimants, and all other interested parties.
This deception, regarding which version of the agreement we 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)
“Ex parte” is a Latin phrase meaning “on one side only; by or for one party”. An ex parte communication occurs when a party to a case, or involved with a party, talks or writes to 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 ban 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.
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?
This is further proof that 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 the defendants and their lawyers to be present in the judge’s chambers. In this case in secret with the arbitrator, the defendants and the TIO and his special counsel. 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 the 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.
We will never know what was concealed from the COT cases during this clandestine gathering. Although the arbitration resource unit admitted, in writing 18 months after the first arbitration was finalised (see Open letter File No/45-H), to Dr Hughes that they concealed at least four relevant billing claim documents from the arbitration process.
We will never know what was concealed from the COT cases during this clandestine gathering. Although the arbitration resource unit admitted, in writing 18 months after the first arbitration was finalised (see Open letter File No/45-H), to Dr Hughes that they concealed at least four relevant billing claim documents from the arbitration process.
The missing questions raised at points 4 and 5 in the minutes of this clandestine meeting may 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 could have been so detrimental to the arbitration process that these points were excluded from these minutes?
Open letter File No 54-A shows those who attended 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, TIO Warwick Smith and 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?
Why weren’t the COT Cases and or their lawyers advised of this meeting?
Upon reading this segment Open letter File No 54-A), and the following Prologue page, you will come to the same conclusion many others have: arbitrator Dr Gordon Hughes should not have secretly met with Telstra (the defendants) prior to arbitration to discuss what rules in the arbitration agreement would be removed and which would remain. This clandestine meeting (without the claimants being represented) also covered how to protect – to exonerate – the arbitrator’s consultants from incurring any liability for negligence and to exempt the unit from being sued. Of course, this was to the detriment of the COT cases and our legal right to a have recourse over the arbitration consultants if the resource unit was negligent in their duties. It will be clear, after reading Open letter File No 54-A), and the Prologue page, 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 negligent clauses being removed in my arbitration agreement. This is a very serious issue and should have been addressed in 1995, when this was discovered. An investigation, 20 years ago, would have uncovered that Dr Hughes and Warwick Smith (TIO) used Telstra’s proposed arbitration agreement as the base document for the COT arbitration agreement, rather than using an agreement drafted totally independently of Telstra, as the government (who endorsed the first four arbitrations) and the COT cases’ lawyers were promised. An investigation in 1995 (see Prologue Chapter Four) would have also uncovered Dr Hughes’ 12 May 1995 letter to Warwick Smith, which condemned the Telstra-based agreement as not a credible document to use in the arbitrations, although he used it in my arbitration.
On the actual day we signed the agreement, (see Open letter File No 54-D) the liability clauses 25 and 26 had been removed. We were told if we did not accept these late changes, then there would be NO arbitration. With our banks declaring they were ready to take over our assets if we could not show settlements were imminent, we buckled and accepted the resource unit and TIO special counsel would be exonerated from all liability.
The minutes show discussion on changes to the arbitration agreement although no COT claimants or their representatives were advised of this important meeting or proposed changes to the agreement. Telstra’s transcript of this meeting notes at point six that:
“Mr Bartlett [TIO Special Counsel] stated that he was unhappy that Telecom did not appear prepared to allow his firm an exclusion from liability. …
“Mr Smith [TIO Warwick Smith] stated that he thought it was reasonable for the advisers to incur some liability, and that the only matter left to be negotiated on this issue was the quantum of the liability caps.
“Mr Black [Telstra] said that he thought the liability caps proposed by Telecom in the amended rules were already reasonable.” (See Open letter File No 54-A)
Points 4 and 5
The fact that our Open letter File No 54-A, shows the author of these minutes, has left out points 4 and 5 i,e; point 6 follows point 3 is of great concern. Where are points 4 and 5? What information was exposed in those two points Telstra’s lawyers thought it necessary to hide in case this document Open letter File No 54-A ever surfaced, as it has?
This is further proof that for 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 condone allowing the defendants and their lawyers to be present in the judge’s chambers (arbitrator’s office). 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 the arbitrator, Dr Hughes, agreed and accepted that Telstra would allow the arbitration resource unit first access to all arbitration procedural material (see Arbitrator Part One/Chapter Nine). This allowed them to decide which documents Dr Hughes would see and which would be discarded (see also page 4 here which shows Telstra’s Steve Black wrote to Warwick Smith on 24 July acknowledging the resource unit would be allowed to vet which documents Dr Hughes would see and which he would not.
We will never know that was concealed from the COT cases during this clandestine gathering. Although, Ferrier Hodgson Corporate Advisory admitted, in writing, to Dr Hughes that they concealed at least four relevant billing claim documents from the arbitration process.
The TIO has, to date, declined to explain what circumstances occurred to change this. Who pressured the TIO to allow the advisors to be exonerated from all liability in relation to our arbitrations? Why would the TIO special counsel be:
“unhappy that Telecom did not appear prepared to allow his firm and exclusion from liability”?
Why it did not occur to either the TIO or the arbitrator that, once the directions regarding liability were removed, this would allow complacency to creep /the arbitration process? This is exactly what our absentjustice.com pages show happened.
Had COT cases been represented at this hearing (as we were legally supposed to be), we would have been fully aware prior to 21 April 1994, the day we signed this document, that our rights to fair arbitrations were going to be violated.
In Open letter File No 54-B is a letter dated 12 April 1994 from Dr Hughes to a member of the TIO counsel. This letter discusses how to overcome that one of the four COT cases (Maureen Gillan) had already signed the arbitration agreement on 8 April 1994. This version was the agreement Senators Richard Alston and Boswell, all four COT cases and their lawyers agreed to. But now, John Rundell’s arbitration resource unit wanted to be exonerated from all liability for any act or omission in connection with the remaining three arbitrations. Removing the $250,000 liability caps from the original agreed-to agreement removed any incentive for the resource unit to act responsibly towards the three remaining claimants. And as our Open letter File No/45-A to 45-I and File No/46-F to 46-J show this is what happened: i.e., the arbitration resource unit withheld some of the most important relevant documents from my arbitration process – aware they could NOT be sued for that unacceptable conduct.
The skullduggery (deception and collusion) that were apparent before the arbitrations began are also addressed in Chapter Five to Seven in our Arbitrator Part One page.
On our Hacking – Julian Assange page in the above menu bar, we provide further examples of relevant documents not reaching the arbitration process for assessment. The young computer hackers contacted the COT cases twice in early 1994 to advise they had hacked into Telstra’s email service and uncovered Telstra acting unlawfully towards the COT cases. They asked if we wanted the evidence. We refused to accept this evidence, as we were concerned we were being set-up. We notified the authorities and as these hackers and Julian Assange were caught around the same time, this suggests we unwittingly played a part in his arrest. It is now obvious the hackers were telling the truth about Telstra’s conduct towards the COT cases, but COT spokesperson, Graham Schorer, remembers the hackers implied it was not only Telstra people who were acted inappropriately towards us; they indicated they uncovered other people who were working against us from within the process itself, who were also acting inappropriately. Unless the hackers decide to contact us again now, in 2017, to explain who those other people were, which is of course highly unlikely, we will probably never know for sure.
Did the hackers uncover: Evidence Dr Hughes was forced, under pressure from the Establishment, to use Telstra’s drafted arbitration agreement instead of the agreed, independently drafted agreement all relevant parties were told would be used?;
- Evidence the arbitrator agreed with the defendants that he and his arbitration project manager would only assess a limited amount of claim documents in order to minimise Telstra’s liability? (See Arbitrator Part Two, Chapter Nine and Ten);
- Evidence that Telstra and the TIO agreed to secretly appoint a second arbitrator who would decide which arbitration procedural documents would reach the official arbitrator (Dr Gordon Hughes) and which would be concealed? (See Arbitrator Part One, Chapter Seven);
- Evidence confirming someone with access to Telstra’s fax screening process were diverting arbitration claim documents to a designated filing system before they were redirected onto their intended destination? (See Open Letter File No/12, 13, 16 and File No/17).
In my case, even though the arbitrator’s secretary advised the arbitration process that six of my faxed claim documents never reached the arbitrator’s office, I was never afforded the opportunity to resubmit this material for assessment. My fax account shows I dialled the correct fax number on all six occasions.
TIO Media Release 12 May 1995
Warwick Smith was supplied advice, on 18 April 1995, from none other than John Rundell, stating there were “forces at work” that derailed the process. I discussed with Warwick Smith, twice, Telstra’s threats of withholding FOI documents, because I assisted the Australian Federal Police and that this eventuated. Surely all this was enough for Warwick Smith to call the whole arbitration process a farce and ask the minister to intervene? Yet, this did not happen, not even after Dr Hughes’ 12 May 1995 advice. In most Western democracies, this would have been enough for an investigation.
Instead, a little more than two hours after Warwick Smith (the TIO and administrator of the process) received Dr Hughes’ 12 May 1995 letter, he put out a media release stating:
“The Administrator noted that the arbitration process, under the direction of the independent Arbitrator Dr Gordon Hughes, appointed with the agreement of the parties, had been run in accordance with principals of natural justice.” (See Open Letter File No 55-B)
Warwick Smith both misled and deceived the public in this media release headed 1st Telecom COT Case Arbitration Finalised: even though this release didn’t name which claimant he was referring to, it is well known I was the first to go through the process.
So, before Warwick Smith put out this media release, why didn’t he advise the relevant communications minister, Michael Lee MP, and the public, that Telstra destroyed some documents I needed and deleted relevant information from others, particularly since I had provided Mr Smith with evidence of this?
Why didn’t he advise anyone that Telstra not only threatened to withhold all the relevant documents I needed to support my claims and that they actually carried out those threats?
Perhaps Warwick Smith was concerned that, if he did raise these problems with the Hon Michael Lee MP, or reveal them to the public, then there would have been an instant demand for answers to questions like:
Why didn’t he and the arbitrator, Dr Hughes, contact the Supreme Court of Victoria and/or the relevant authorities to request a proper investigation into the situation that the COTs had found themselves in, through no fault of their own, when it first became clear that Telstra was acting as a law unto themselves?
This raises even more questions, particularly in relation to Warwick Smith’s media release. Why did he:
- Collude with the arbitrator by allowing the defendants to draft their own arbitration rules for the process instead of providing the independently drafted agreement that both Warwick Smith and the arbitrator assured the media, politicians and claimants, would be prepared?
- Refuse to supply the COT cases with a copy of Telstra’s preferred rules of arbitration as soon as questions arose about the possibility that the arbitration agreement was based on Telstra’s version?
- Allow the defendants to be present at monthly TIO board and council meetings where various COT case arbitrations were discussed?
- Allow Dr Hughes to continue to use an arbitration agreement that Dr Hughes, himself, stated was not a credible document to have used and needed revising (for the remaining claimants), even though Dr Hughes used it all the way through my COT arbitration and the result was allowed to stand?
- Allow Dr Hughes and his arbitration technical unit to assess and investigate less than 11 per cent of my legally submitted claim documents?
- Allow Dr Hughes to only assess losses that came from my school customers, which were the least lucrative customers, while ignoring the more lucrative over-40s singles-club losses?
- Allow the defendants to have access to my claim material, during my arbitration, before it was submitted to the arbitrator?
- Organise, with the defendants, that the TIO-appointed resource unit and the defendants would decide which arbitration procedural documents would be passed on to the arbitrator for assessment and which would be concealed from the process altogether (something which is not mentioned anywhere in the official arbitration agreement)?
- Deliberately hide all these facts from the public in his 12 May 1995 media release?
- Also withhold from the public that, although the arbitration consultants wanted extra weeks to address my ongoing billing problems, these extra weeks were not allowed?
We can only guess at the answers to these 10 questions. However, it is quite clear that, if Warwick Smith had revealed the actual truth about our arbitrations, then there would have been such an outcry from the Australian public – and from many government ministers too – that Warwick Smith and Dr Hughes would have been brought into disrepute, along with all the others involved in the administrative side of the process, for having allowed this deplorable situation to continue for so long. That would have led to major pressure being applied for Warwick Smith and Dr Hughes to officially call the entire COT arbitration process null and void.
On 24 January 1995 I responded to Dr Gordon Hughes’ very important 23 January 1995 letter, although I didn’t receive any acknowledgement that Dr Hughes had received it. John Pinnock, the second TIO, later wrote to me (on 28 June 1995) claiming that no-one had received my response to Dr Hughes’ letter, so therefore, according to Mr Pinnock, the record showed that I had not replied.
After the statute of limitations had expired, and I could therefore no longer appeal my arbitration award, the TIO’s office actually returned most (but not all) of my arbitration documents, and what was one of the documents that I DID get back? Yes, the letter I faxed to Dr Hughes on 24 January 1995 was included, with my fax machine identified across the top of the document. This proves, of course, that I had complied with Dr Hughes instructions, which only allowed me twenty-four hours to respond. Mr Pinnock’s 28 June 1995 letter can be accessed at absentjustice.com/Open Letter File No/52-A to 52-C.
If Dr Hughes had replied to my 24 January 1995 letter, which we now know his office definitely DID receive, I could then have proved Telstra’s fraudulent defence of my claims and I could have also raised serious questions about exactly how fraudulent Telstra’s behaviour was, overall, not only during my arbitration but possibly in other COT arbitrations as well.
As I have stated in absentjustice.com/Introduction: “The whole Casualties of Telstra (COT) arbitration issue is very complex and involved many unscrupulous people who were prepared to lie, cheat and conceal the truth from the claimants to the claimants’ detriment during a government endorsed arbitration. Due to the complexity, we have no option but to separate the various angles into different pages, as we have done in our menu bar.”
Open Letter File No/52-A to 52-C is just one of those many situations where unscrupulous people involved in the COT arbitrations cared little for the rights of the COT claimants.
I am certainly not saying that Dr Hughes himself claimed that he did not receive my very important 24 January 1995 letter, which would have changed the whole outcome of my arbitration, and possibly changed the outcome of many of the other COT arbitrations as well but, during an official investigation into my arbitration claims against Dr Hughes; an investigation that ran through to November 2009 and which was instigated by The Hon Michael D Kirby AC CMG, who was then the President of the Institute of Arbitrators and Mediators Australia, i.e. the IAMA, Mr Kirby wrote to me, in a letter dated 9 July 2009 (see absentjustice.com/Prologue Evidence File No 55-A) to let me know that the IAMA would be in contact with me as part of that investigation. Two days after I received that letter from Mr Kirby, a Mr Paul Crowley, who was then the CEO of the IAMA, telephoned me. He told me that he had received copies of the first two submissions I had provided to Mr Kirby, and which had prompted Mr Kirby’s 9 July 2009 letter to me. I then explained that, by then, I had received fresh evidence from the TIO’s office and that John Pinnock (TIO) should have made that evidence available to me way back between 1995 and 1999, during my arbitration. Mr Pinnock, however, bluntly refused to help me in any way. Evidence of this refusal is also available at absentjustice.com.
Prologue Evidence File No 55-B to 55-C confirms that the IAMA were, by 2009, actually investigating Dr Hughes and the overall conduct of my arbitration. The IAMA has since refused to provide that investigation with any of my twenty-one submissions, which Prologue Evidence File No 55-B shows were sent, and nor will they provide any of some eleven other submissions which we now hope to add to absentjustice.com over the next few months.
It is also important to note that, on 2 August 1996, the arbitration resource unit of Ferrier Hodgson Corporate Advisory (FHCA) admitted, to both Dr Hughes and the TIO’s office, that a further set of relevant arbitration documents were deliberately concealed from the arbitrator (and, of course, from me also) which means that those relevant arbitration documents were not addressed during my arbitration and nothing was done about the issues raised in them. This suggests that Dr Hughes might not have been responsible for not taking any action regarding those very relevant billing issues, or for ignoring the information discussed in Open Letter File No/52-A to 52-C.
Let me reiterate: if the arbitrator had actually received the letter I sent him on 24 January 1995, and if he had responded accordingly and therefore asked Telstra to provide the Cape Bridgewater/Bell Canada International (BCI) testing data that related to those alleged calls, and if I had received a copy of that important data back in 1995, during my arbitration, instead of after my arbitration was over, I could have proved that BCI did not test the Cape Bridgewater RCM Exchange and that BCI did not use the CCS7 testing process they claimed to have used because the nearest Exchange that could facilitate that specialized equipment was in Warrnambool, 116 kilometres away. But, for whatever reason, Dr Hughes apparently didn’t get my letter and so, as his award for my case states, he accepted that false BCI testing data into evidence, which means that he based his findings on inaccurate defence documents – and this was just one of a number of important documents that were concealed from the arbitration process!
If it is at all possible for something even worse to have occurred, on 23 May 1995, after my arbitration had been officially declared to be over, one of the members of the TIO’s Council (while wearing his Telstra hat) finally provided me with conclusive proof that Telstra had indeed admitted to BCI Canada that the Telstra/Cape Bridgewater/BCI tests were impracticable. Although this person was also (again officially) Telstra’s main arbitration defence liaison officer, still he waited until after Dr Hughes had handed down his award before he provided me with that vital information, twelve months after I had officially requested it.
Arbitrator Part Three/Chapter Thirteen explains how the TIO, Dr Hughes and the TIO’s Special Counsel eventually became alarmed at what I had uncovered, including that twelve months that I had been forced to wait before they supplied the BCI evidence but, instead of demanding answers from Telstra they chose the path that would not ‘Open the Can of Worms’ (the TIO’s words, not mine) and so all of them, along with Telstra too, agreed not to address this very serious matter at all.
George Close, technical consultant for the first four COT cases, sent me an email on 5 August 2011 (see Front Page Part One File No/26) noting:
“I recall a discussion with Senator Ron Boswell during the late 90’s. He had been shown fax’s which had clear indication of change in the headers, indicating interruption in transmission by a third party or parties. He questioned whether it was possible that faxes to and from senators could be interrupted, read or copies. My response in the affirmative brought about an expression of extreme anger. Stating that if it could be proven that it occured the offender(s) would be jailed.
If required I am prepared to re-state this on an affidavit.”
PLEASE NOTE: the following information is still in draft format.
As stated above, the Australian Telecommunications Industry Ombudsman (TIO) is funded by the telecommunication carriers themselves, which means that it can hardly be called impartial, on any level, but particularly when they are involved in an arbitration, and their wages are partly paid by the defendants in that arbitration! Evidence available at absentjustice.com shows that, during the COT arbitrations against Telstra (the defendant), the TIO allowed Telstra executives to be present at both TIO board and council monthly meetings. The TIO has since admitted, under oath, that he allowed this attendance even though arbitration issues were discussed at these meetings. Were any COTs (the complainants in this legalistic arbitration process) allowed to attend those same meetings, or even invited to attend? Of course not! And did anyone in any position of power ever attempt to put the complainants on the same footing as the defendants? Certainly not. Once again, the COTs were left out in the cold.
The findings of Justice Fitzgerald and Justice Woods’ royal commission investigations into police corruption in Queensland and New South Wales, and the findings of various other investigations into government agencies over the years, state that no organisation that has claims made against it can legally investigate itself. The current Victorian government is funding a royal commission into the potentially corrupt use of police informants that will commence in 2019. The Victorian government has commissioned Malcolm Hyde AO APM from South Australia to ensure the government is seen to be impartial.
More than half the complaints the COT cases raised with the Australian government are either against TIO officials involved in the COT arbitrations or arbitration resource unit. Although I have since taken those complaints to the State Ombudsman, Consumer Affairs Victoria, .the Australian Competition and Consumer Commission (ACCC), the Australian Communications and Media Authority (ACMA) and various government ministers, they all have the same advice: take my matters back to the TIO, even though those government-funded organisations must know the TIO’s office cannot investigate itself. It seems therefore that justice, the Australian way, involves running ordinary Australian claimants around and around in circles in the hope they will become so exhausted, and probably financially ruined, that they give up their fight. This is what has been done to me and the other COT cases for the past 22 years, while those who acted inappropriately towards us, those who instigated the roundabout and those who caused the Australian justice system to fail, have their inappropriate conduct buried, safely out of sight. It is perfectly clear: the law does not permit a party to an allegation to investigate itself.
Back in 1994, as part of our Government-endorsed arbitration, the Telecommunication Industry Ombudsman appointed arbitrator was allowed to minimize Telstra’s liability regardless of how much revenue the COT Cases had lost due to Telstra’s defective telephone service.
While it is clear the Australian Establishment saw him as a shining light because he was protecting the assets of the then Government-owned telecommunications carrier, and therefore protecting the public purse and so creating an outcome for the good of all Australians, what that arbitrator, and the Government, have never wanted to acknowledge is that when Dr Hughes bent the law to protect Telstra and its shareholders it actually meant that the rule of law was breached. Telstra, the TIO who was also the administrator of the arbitrations the arbitrator, used their position to bluff those interested government ministers of seeing a just outcome to all of the COT arbitrations including, the media into believing that the services once investigated during the arbitration process once an award had been handed down by the arbitrator that service was now operating efficiently and effectively. When this was disputed or fought in any way by the claimant then it was Telstra, the TIO and the arbitrators policy to fight the accusations for as long as possible to tire and eventually wear down the claimant. In my own case, it is shown in Bad Bureaucrats that over a six year period after my arbitration and no one would investigate my complaints of ongoing unaddressed arbitration faults I reluctantly sold the business in December 2001, to the Lewis family. Their seven year unsuccessful attempt to have the problems fixed is scattered throughout our story.
Why is Telstra, the arbitrator and those who allowed this COT saga to hapen above the law? Read on to discover how this corruption and injustice unfolded.
In May 1995, I was preparing for my arbitration appeal against the conduct of those administering my arbitration, and the way they had allowed Telstra to flaunt the FOI discovery process. During that time, in front of more than seventy students and staff at my Camp, I collapsed and was rushed to the Portland Hospital, where I was also hospitalized for six days (like Ann) but in my case, although it was at first believed that I had experienced a heart attack, it actually turned out to also be a stress attack brought on by my eight-year battle with Telstra.
The Telecommunications Industry Ombudsman (TIO) is funded by the telecommunication carriers themselves, which means that it can hardly be called impartial, on any level, but particularly when they are involved in an arbitration, and their wages are partly paid by the defendants in that arbitration! Evidence available at absentjustice.com shows that, during the COT arbitrations against Telstra (the defendant), the TIO allowed Telstra executives to be present at both TIO board and council monthly meetings. The TIO has since admitted, under oath, that he allowed this attendance even though arbitration issues were discussed at these meetings. Were any COTs (the complainants in this legalistic arbitration process) allowed to attend those same meetings, or even invited to attend? Of course not! And did anyone in any position of power ever attempt to put the complainants on the same footing as the defendants? Certainly not. Once again, the COTs were left out in the cold.