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.
Telstra management was trying to force COT members into court, well aware that their highly paid lawyers would eat us alive. We became increasingly sure that this was their plan, and indeed, our suspicions were confirmed, years later, by some extraordinary documents which belatedly came our way.
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.
The use of misleading and deceptive conduct such as this in a commercial settlement such as mine contravenes Section 52 of the Australian Trade Practices Act. Yet this deception has never been officially addressed by any regulatory body. To get ahead of my story here, even the arbitrator who handed down his award on my case in May 1995 failed to question Telstra’s unethical behaviour.
I took this new information to AUSTEL, and on 9 June 1993, AUSTEL’s John MacMahon wrote to Telstra regarding my continuing phone faults after the settlement, and the content of the briefcase documents:
“Further he claims that the Telecom documents contain network investigation findings which are distinctly different from the advice which Telecom has given to the customers concerned.
In summary, these allegations, if true, would suggest that in the context of the settlement Mr Smith was provided with a misleading description of the situation as the basis for making his decision. They would also suggest that the other complainants identified in the folders have knowingly been provided with inaccurate information.
I ask for your urgent comment on these allegations. You are asked to immediately provide AUSTEL with a copy of all the documentation which was apparently inadvertently left at Mr Smith’s premises for its inspection. This, together with your comment, will enable me to arrive at an appropriate recommendation for AUSTEL’s consideration of any action it should take.
As to Mr Smith’s claimed continuing service difficulties, please provide a statement as to whether Telecom believes that Mr Smith has been provided with a telephone service of normal network standard since the settlement. If not, you are asked to detail the problems which Telecom knows to exist, indicate how far beyond network standards they are and identify the cause/causes of these problems.
In light of Mr Smith’s claims of continuing service difficulties, I will be seeking to determine with you a mechanism which will allow an objective measurement of any such difficulties to be made.”
I can only presume that Telstra did not comply with the request ‘to immediately provide AUSTEL with a copy of all the documentation which was apparently inadvertently left at Mr Smith’s premises,’ for on 3 August 1993, Austel’s General Manager, Consumer Affairs wrote to Telstra requesting a copy of all the documents in this briefcase that had not already been forwarded to AUSTEL. (See Arbitrator File No 61)
I sent off a number of Statutory Declarations to AUSTEL explaining what I had seen in the briefcase.
How blithely he omitted any reference to vital evidence which was withheld from me during their negotiations with me regarding compensation.
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.
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.”
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.
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 that I provided to Grant Campbell. And, as far as Mr Campbell stating that I “agreed that this is a new matter” and that “it is not a matter that relates directly to the preparation of [my] material to be presented to the Assessor”, this was a blatant lie. I asked Mr Campbell to ensure Warwick Smith was supplied with my evidence confirming numerous people, including my accountant and lawyer (see Open Letter File No/56-D to E), were still unable to send faxes to assist me with the preparation of my claim before the assessor Dr Gordon Hughes. I have grave doubts as to whether that faxing evidence was provided to Warwick Smith, who, had he received it, would have been duty bound to provide it to Dr Hughes. The fact that my records of these faxing problems, as well as 008/1800 evidence material, were not supplied back to me after my arbitration was finalised, when the arbitrator was duty bound to return evidence under clause 6 of the arbitration agreement, suggests Grant Campbell never forwarded my FTSP claim to Warwick Smith.
The following example shows a Portland Telstra technician, whom I have named Joker Seven (see Absentjustice Brief Summary Part 1 experienced major problems during his official fax-testing process of my service on 29 October 1993. Why would I tell Grant Campbell in February 1994 “…that this is a new matter” when the following document shows the problem was in existence in October 1993 i.e.;
“During testing the Mitsubishi fax machine, some alarming patterns of behaviour were noted, these affecting both transmission and reception. Even on calls that were not tampered with the fax machine displayed signs of locking up and behaving in a manner not in accordance with the relevant CCITT Group 3 fax rules. … Even if the page was sent upside down the time and date and company name should have still appeared on the top of the page, it wasn’t. During a received call the machine failed to respond at the end of the page even though it had received the entire page (sample #3).” (See False Witness Statement No 7-A)
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.
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.
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.
No findings on lost claim documents
12 May 1995 Letter
Although the arbitrator agreed to investigate our claims of phone and fax interception, his official findings contained no reference to the matter.
Confidential faxes, intercepted during the arbitration, included faxes to our lawyers and advisors and various senators who were trying to help us. Some critical faxes, both incoming and outgoing, which could have changed the outcome of the arbitration went missing, in transit. I used Telstra’s own data to show that at least six of the arbitration claim documents that I faxed to the arbitrator’s office, never arrived for his assessment. My Telstra bill itemised them, but the arbitrator’s secretary stated that these six faxed documents never arrived. The arbitrator ignored the evidence I placed before him. Something was very amiss with the whole process.
We again draw the reader’s attention to the 12 May 1995 letter from the arbitrator to the TIO stating:
“…as far as I could observe, both Telecom and Smith co-operated in the Smith arbitration…”
“…the time frames set in the original Arbitration Agreement were, with the benefit of hindsight, optimistic;
“in particular; we did not allow sufficient time in the Arbitration Agreement for inevitable delays associated with the production of documents, obtaining further particulars and the preparation of technical reports…
“In summary, it is my view that if the process is to remain credible, it is necessary to contemplate a time frame for completion which is longer than presently contained in the Arbitration Agreement” (Open Letter File No 55-A)
The fax imprint across the top of this letter (Open Letter File No 55-A) is the same as the fax imprint described in the Scandrett & Associates report (see Open Letter File No/12, and File No/13), confirming faxes were intercepted during the COT arbitrations. The question the Telecommunication Industry Ombudsman and the Federal Attorney-General has still not answered is:
Was this letter actually faxed to my office by the ombudsman to assist me in any pending appeal process, and if not, why was such an important letter deliberately kept from me during my designated appeal period?
If I had received a copy of this letter declaring the agreement used in my arbitration process was not credible, then of course I would have appealed the arbitrator’s award. After all, how could an appeal judge argue against the arbitrator’s own findings that the agreement was not credible, even though he used it anyway?
Interception of this 12 May 1995 letter by a secondary fax machine:
Whoever had access to Telstra’s network, and therefore the TIO’s office service lines, knew – during the designated appeal time of my arbitration – that my arbitration was conducted using a set of rules (arbitration agreement) that the arbitrator declared not credible. There are three fax identification lines across the top of the second page of this 12 May 1995 letter:
- The third line down from the top of the page (i.e. the bottom line) shows that the document was first faxed from the arbitrator’s office, on 12-5-95, at 2:41 pm to the Melbourne office of the TIO – 61 3 277 8797;
- The middle line indicates that it was faxed on the same day, one hour later, at 15:40, from the TIO’s fax number, followed by the words “TIO LTD”.
- The top line, however, begins with the words “Fax from” followed by the correct fax number for the TIO’s office (visible
Consider the order of the time stamps. The top line is the second sending of the document at 14:50, nine minutes after the fax from the arbitrator’s office; therefore, between the TIO’s office receiving the first fax, which was sent at 2.41 pm (14:41), and sending it on at 15:40, to his home, the fax was also re-sent at 14:50. In other words, the document sent nine minutes after the letter reached the TIO office was intercepted.
“We canvassed examples, which we are advised are a representative group, of this phenomena [sic].
“They show that
- the header strip of various faxes is being altered
- the header strip of various faxes was changed or semi overwritten.
- In all cases the replacement header type is the same.
- The sending parties all have a common interest and that is COT.
- Some faxes have originated from organisations such as the Commonwealth Ombudsman office.
- The modified type face of the header could not have been generated by the large number of machines canvassed, making it foreign to any of the sending services.”
One of the two technical consultants attesting to the validity of this fax interception report emailed me on 17 December 2014, stating:
“I still stand by my statutory declaration that I was able to identify that the incoming faxes provided to me for review had at some stage been received by a secondary fax machine and then retransmitted, this was done by identifying the dual time stamps on the faxes provided.” (Front Page Part One File No/14)
It is also clear from Front Page Part One File No/1, File No/2-A to 2-E, File No/3, File No/4 and Front Page Part One File No/5, that numerous documents faxed from my office to the arbitrators office did not reach their intended destination.
Many within the Establishment said that it was actually unconstitutional to force the COT cases into an arbitration process with Telstra while the Australian Federal Police (AFP) were still investigating Telstra for alleged phone and fax hacking of the COT cases’ businesses and, furthermore, it was acknowledged that it was clearly an unworkable process. This didn’t stop the arbitrations, however, although it does raise a number of important questions:
- How could two separate investigations into Telstra, for allegedly unlawful conduct, be undertaken by two different organisations at the same time, i.e., an arbitrator as well as the AFP? As far as we can find, this situation is unheard of in any other Western democracy.
- While all the COT cases attempted to keep their individual small businesses going while their arbitrations continued, how could we be expected to submit complex submissions to an arbitrator and, at the same time, assist the AFP with their investigations?
- Who decided that this situation would be allowed to continue?
I was entitled to receive this well-concealed 12 May 1995 letter during my designated appeal period, but I did not receive a copy until 2002 (and outside the statute of limitation period). In this letter, Dr Hughes states
TIO Media Release 12 May 1995
Warwick Smith was supplied advice, on 18 April 1995, from none other than John Rundell, stating there were “forces at work” that derailed the process. I discussed with Warwick Smith, twice, Telstra’s threats of withholding FOI documents, because I assisted the Australian Federal Police and that this eventuated. Surely all this was enough for Warwick Smith to call the whole arbitration process a farce and ask the minister to intervene? Yet, this did not happen, not even after Dr Hughes’ 12 May 1995 advice. In most Western democracies, this would have been enough for an investigation.
Instead, a little more than two hours after Warwick Smith (the TIO and administrator of the process) received Dr Hughes’ 12 May 1995 letter, he put out a media release stating:
“The Administrator noted that the arbitration process, under the direction of the independent Arbitrator Dr Gordon Hughes, appointed with the agreement of the parties, had been run in accordance with principals of natural justice.” (See Open Letter File No 55-B)
Warwick Smith both misled and deceived the public in this media release headed 1st Telecom COT Case Arbitration Finalised: even though this release didn’t name which claimant he was referring to, it is well known I was the first to go through the process.
So, before Warwick Smith put out this media release, why didn’t he advise the relevant communications minister, Michael Lee MP, and the public, that Telstra destroyed some documents I needed and deleted relevant information from others, particularly since I had provided Mr Smith with evidence of this?
Why didn’t he advise anyone that Telstra not only threatened to withhold all the relevant documents I needed to support my claims and that they actually carried out those threats?
Perhaps Warwick Smith was concerned that, if he did raise these problems with the Hon Michael Lee MP, or reveal them to the public, then there would have been an instant demand for answers to questions like:
Why didn’t he and the arbitrator, Dr Hughes, contact the Supreme Court of Victoria and/or the relevant authorities to request a proper investigation into the situation that the COTs had found themselves in, through no fault of their own, when it first became clear that Telstra was acting as a law unto themselves?
This raises even more questions, particularly in relation to Warwick Smith’s media release. Why did he:
- Collude with the arbitrator by allowing the defendants to draft their own arbitration rules for the process instead of providing the independently drafted agreement that both Warwick Smith and the arbitrator assured the media, politicians and claimants, would be prepared?
- Refuse to supply the COT cases with a copy of Telstra’s preferred rules of arbitration as soon as questions arose about the possibility that the arbitration agreement was based on Telstra’s version?
- Allow the defendants to be present at monthly TIO board and council meetings where various COT case arbitrations were discussed?
- Allow Dr Hughes to continue to use an arbitration agreement that Dr Hughes, himself, stated was not a credible document to have used and needed revising (for the remaining claimants), even though Dr Hughes used it all the way through my COT arbitration and the result was allowed to stand?
- Allow Dr Hughes and his arbitration technical unit to assess and investigate less than 11 per cent of my legally submitted claim documents?
- Allow Dr Hughes to only assess losses that came from my school customers, which were the least lucrative customers, while ignoring the more lucrative over-40s singles-club losses?
- Allow the defendants to have access to my claim material, during my arbitration, before it was submitted to the arbitrator?
- Organise, with the defendants, that the TIO-appointed resource unit and the defendants would decide which arbitration procedural documents would be passed on to the arbitrator for assessment and which would be concealed from the process altogether (something which is not mentioned anywhere in the official arbitration agreement)?
- Deliberately hide all these facts from the public in his 12 May 1995 media release?
- Also withhold from the public that, although the arbitration consultants wanted extra weeks to address my ongoing billing problems, these extra weeks were not allowed?
We can only guess at the answers to these 10 questions. However, it is quite clear that, if Warwick Smith had revealed the actual truth about our arbitrations, then there would have been such an outcry from the Australian public – and from many government ministers too – that Warwick Smith and Dr Hughes would have been brought into disrepute, along with all the others involved in the administrative side of the process, for having allowed this deplorable situation to continue for so long. That would have led to major pressure being applied for Warwick Smith and Dr Hughes to officially call the entire COT arbitration process null and void.
Dr Hughes writes to Warwick Smith, confirming Dr Hughes’ view that the arbitration agreement rules he had just used in my case had not allowed enough time for: “… the production of documents, obtaining further particulars, and the preparation of technical reports.” Dr Hughes went further, actually apologising for: “… the brevity…” of his comments and noting that the time frame for future arbitrations would need to be longer than it presently was.
On the second page of his letter, Dr Hughes further notes: “There are some procedural difficulties which revealed themselves during the Smith arbitration and which I would like to discuss with you when I return” (from a trip to Greece).
Warwick Smith withheld this letter from Alan Smith, even though he could have forwarded it on during the designated appeal period allowed for in the arbitration agreement, and Alan Smith has never been given any explanation as to what “procedural difficulties” Dr Hughes encountered during Alan’s arbitration.
Dr Hughes letter to Warwick Smith was faxed to the TIO’s office on the following Saturday afternoon at 14.41 hours and then re-faxed to Warwick Smith’s home at 14.50 hours the same day. At 17.15 hours, four documents, including a Media Release, were faxed to various TIO Board and Council members. The Media Release, from Warwick Smith, announced that: “The Administrator noted that the arbitration process, under the direction of the independent Arbitrator, Dr Hughes, appointed with the agreement of the parties, had been run in accordance with the principles of natural justice.”
PLEASE NOTE: The Media Release does not refer to Dr Hughes’ written opinion that: “… if the process is to remain credible, it is necessary to contemplate a time frame for completion which is longer than presently contained in the Arbitration Agreement.”
On 24 January 1995 I responded to Dr Gordon Hughes’ very important 23 January 1995 letter, although I didn’t receive any acknowledgement that Dr Hughes had received it. John Pinnock, the second TIO, later wrote to me (on 28 June 1995) claiming that no-one had received my response to Dr Hughes’ letter, so therefore, according to Mr Pinnock, the record showed that I had not replied.
After the statute of limitations had expired, and I could therefore no longer appeal my arbitration award, the TIO’s office actually returned most (but not all) of my arbitration documents, and what was one of the documents that I DID get back? Yes, the letter I faxed to Dr Hughes on 24 January 1995 was included, with my fax machine identified across the top of the document. This proves, of course, that I had complied with Dr Hughes instructions, which only allowed me twenty-four hours to respond. Mr Pinnock’s 28 June 1995 letter can be accessed at absentjustice.com/Open Letter File No/52-A to 52-C.
If Dr Hughes had replied to my 24 January 1995 letter, which we now know his office definitely DID receive, I could then have proved Telstra’s fraudulent defence of my claims and I could have also raised serious questions about exactly how fraudulent Telstra’s behaviour was, overall, not only during my arbitration but possibly in other COT arbitrations as well.
Open Letter File No/52-A to 52-C is just one of those many situations where unscrupulous people involved in the COT arbitrations cared little for the rights of the COT claimants.
I am certainly not saying that Dr Hughes himself claimed that he did not receive my very important 24 January 1995 letter, which would have changed the whole outcome of my arbitration, and possibly changed the outcome of many of the other COT arbitrations as well.
Let me reiterate: if the arbitrator had actually received the letter I sent him on 24 January 1995, and if he had responded accordingly and therefore asked Telstra to provide the Cape Bridgewater/Bell Canada International (BCI) testing data that related to those alleged calls, and if I had received a copy of that important data back in 1995, during my arbitration, instead of after my arbitration was over, I could have proved that BCI did not test the Cape Bridgewater RCM Exchange and that BCI did not use the CCS7 testing process they claimed to have used because the nearest Exchange that could facilitate that specialized equipment was in Warrnambool, 116 kilometres away. But, for whatever reason, Dr Hughes apparently didn’t get my letter and so, as his award for my case states, he accepted that false BCI testing data into evidence, which means that he based his findings on inaccurate defence documents – and this was just one of a number of important documents that were concealed from the arbitration process!
If it is at all possible for something even worse to have occurred, on 23 May 1995, after my arbitration had been officially declared to be over, one of the members of the TIO’s Council (while wearing his Telstra hat) finally provided me with conclusive proof that Telstra had indeed admitted to BCI Canada that the Telstra/Cape Bridgewater/BCI tests were impracticable. Although this person was also (again officially) Telstra’s main arbitration defence liaison officer, still he waited until after Dr Hughes had handed down his award before he provided me with that vital information, twelve months after I had officially requested it.
Arbitrator Part Three/Chapter Thirteen explains how the TIO, Dr Hughes and the TIO’s Special Counsel eventually became alarmed at what I had uncovered, including that twelve months that I had been forced to wait before they supplied the BCI evidence but, instead of demanding answers from Telstra they chose the path that would not ‘Open the Can of Worms’ (the TIO’s words, not mine) and so all of them, along with Telstra too, agreed not to address this very serious matter at all.
As stated above, the Australian Telecommunications Industry Ombudsman (TIO) is funded by the telecommunication carriers themselves, which means that it can hardly be called impartial, on any level, but particularly when they are involved in 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.
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.
At least up to 2004 I had received many letters from the TIO Board and Council suggesting, as John Pinnock did, that I hadn’t availed myself of the option of appealing the arbitrator’s award. This is quite astonishing because, long before 2004, in fact way back on 26 September 1997, Mr Pinnock also openly told a Senate Estimate Committee that the COT arbitrations:
“… were to be governed by the Commercial Arbitration Act of Victoria. Significantly, that provides that an award by the arbitrator is registrable as an order of the Victorian Supreme Court, and the act confers basically what is a limited right of appeal against any award by the arbitrator.”
After that clear statement explaining the limited right of appeal that was available to the COT claimants, how on earth could the TIO’s office still instruct those very same claimants to appeal their awards? Remember, these instruction to ‘appeal our awards’ came years AFTER Mr Pinnock’s statement to the Senate Estimates Committee, including his reference to the limited right of appeal under the Arbitration Act. To make the pressure applied by the TIO’s office to appeal our awards even more astonishing, if we did want to attempt such an appeal, the basic documents we needed to be able to access, in order to give us even a slim chance of winning those unlikely appeals, were all withheld from us, as per John Pinnock’s following letter (Open Letter File No 57-C) shows.
“I refer to your letter of 31 December 1996 in which you seek to access to [sic] various correspondence held by the TIO concerning the Fast Track Arbitration Procedure.
“The arbitration of your claim was completed when an award was made in your favour more than eighteen months ago and my role as Administrator is over.
“I do not propose to provide you with copies of any documents held by this office.”
The above Senate Estimates Committee Hansard, 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.
Questions on Notice (1)
Although we address this 24 October 1997 letter from the TIO to Ms Pauline Moore, (secretary to the Senate Environment, Recreation, Communications and the Arts legislation committee) elsewhere on absentjustice.com, we can link in another sinister set of ill deeds committed against the COT claimants. This letter, stamped CONFIDENTIAL, includes the following statement:
“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 role as Administrator. …
“Accordingly, I ask that the answers given below to the questions on notice be treated as confidential by the Committee and not be published. …
“9. Yes, from time to time I have received complaints from foundation COT members, concerning a range of matters, including alleged non-compliance with the rules of the Fast Track Arbitration Procedures by Telstra and/or the Arbitrator and/or the Technical and Accounting Resource Unit. …
“10. 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 of historical interest only, and the COT members did not advance any argument as to why it was relevant to their arbitration.” (See Senate Evidence File No 14)
The TIO’s insistence that the agreement was not provided to the COT claimants because: “it was of historical interest only, and the COT members did not advance any argument as to why it was relevant to their arbitration”, is a misrepresentation of the truth – to hide the fact that it was Telstra’s arbitration agreement that was used and to protect Telstra, to the detriment of the claimants.
Graham Schorer, as COT spokesperson, first asked for a copy of the Fast Track Proposed Rules of Arbitration some time before 17 February 1994, so the decision that it would be kept from the claimants was made at least a full two months before we signed the final version of the arbitration agreement. It was therefore entirely “relevant to their arbitration”. The COT claimants were legally entitled to know whether the arbitration agreement was drafted independently or if the defence crafted it, in their favour.
The claimants should have been provided with that original version of the agreement before we signed for arbitration; it should have also been provided during the arbitrations and the arbitration appeal periods. At an official arbitration meeting on 17 February 1994, Mr Schorer said he wanted assurances from the TIO and the arbitrator that the agreement he and the other COT claimants were being pressured to sign was not Telstra’s Proposed Rules of Arbitration. Telstra’s own transcript of this meeting (see Senate Evidence File No/48 ) confirms the arbitrator and the TIO special counsel “both stated they had not received this document and had not read it and that it was irrelevant”. Documents (see Senate Evidence File No 6 and File No/49) confirm the arbitrator was provided with (and read) a document called “Telstra Corporation Limited – ‘Fast Track’ Proposed Rules of Arbitration” sometime before 18 January 1994, a whole month before this pre-arbitration hearing on 17 February 1994.
Telstra’s Fast Track Proposed Rules of Arbitration, which the TIO was still refusing to supply us in October 1997, was the same arbitration file that John Wynack, director of investigations in the Commonwealth Ombudsman’s Office, was trying to access from Telstra on my behalf during 1995 to 1997 (discussed above). Powerful people amongst those administering the COT arbitrations wielded power within the establishment to conceal this very important pre-arbitration document.
How can the government who originally endorsed the first four arbitrations continue to ignore that we were entitled to receive Telstra’s rules of arbitration before we signed our arbitration agreement? Do not forget the TIO’s letter to me, dated 10 January 1996, stating “I do not propose to provide you with copies of any documents held by this office,” (see Senate Evidence File No/50) – echoing the responses that Graham Schorer and I had received since February 1994, from the previous TIO, when requesting copies of Telstra’s proposed rules of arbitration.
The victimization continues
The following segment is just one of many attached to the website absentjustice.com, which I created because no one in Australia seemed to understand that these events happened during a government-endorsed arbitration. Members of the Telecommunication Industry Ombudsman’s office and the government communications regulator (AUSTEL) have successfully, so far, been able to tell politicians that my claims are frivolous and that I am a vexatious litigant. However, reading only the first page of absentjustice.com, shows that I am neither: I just want justice for the COT cases, who were denied natural justice.
John Pinnock was aware the phone problems I raised, before my arbitration began, continued to haunt my business for years after my arbitration, yet, as Telecommunications Industry Ombudsman (TIO), he wrote letters to various politicians stating the arbitrator addressed all of my phone problems during my arbitration, even though his own arbitration resource unit and AUSTEL advised him otherwise. AUSTEL and the defendant (Telstra) addressed some of these arbitration problems, in secret, FIVE MONTHS after the arbitrator refused his arbitration technical consultants the extra weeks they advised were needed to address these matters. (See Chapter One in our Prologue page and Chapters Thirteen and Fourteen in Arbitrator / Part Three)
My Story Evidence File 4-I shows that after Telstra visited my business on 14 January 1998 (33 months after my arbitration was declared a roaring success) they concluded the 1800 billing problems raised in my 1994/95 arbitration continued after my arbitration. Why was this January 1998 evidence concealed from the government, who had endorsed my arbitration on the proviso that all of my ongoing telephone problems would be fixed as part of my arbitration? More importantly, John Pinnock was still writing to politicians as late as February 1999 (My Story Evidence File 4-C to 4-E) saying he was still investigating whether the 008/1800 faults had been addressed in my 1994/95 arbitration even though he was fully informed by AUSTEL they had NOT been addressed in my arbitration. As stated above, Chapter One in our Prologue page shows Mr Pinnock was advised, on 5 November 1995 by his arbitration consultant, that NONE of my billing claims were addressed in my arbitration.
To be clear: despite Mr Pinnock knowing that NONE of my 008/1800 claims were addressed during my arbitration and that AUSTEL allowed Telstra to secretly address them after my arbitration, he was still writing to politicians in February 1999, more than four years later, saying he was unsure whether the issues had been addressed during that process or not. This man is an utter disgrace for having concealed the truth for so long.
Those unaddressed and ongoing lockup communication faults eventually led to me sell my business in December 2001. Firstly, I was unaware that Telstra found in my favour during its investigations at Cape Bridgewater on 14 January 1994 (see My Story Evidence File 4-A to 4-I. Secondly, the TIO and Telstra would not make a proper and transparent finding on my ongoing telephone complaints between June 1995 and August 2001. Thirdly, I had come to believe that Telstra was carrying out some sort of vendetta against me, personally, and so expected the problems would stop once the business changed hands. Sadly, however, the new owners simply inherited the same ongoing problems, which eventually led to them being walked off the property by receivers in August 2009, bankrupt.
While it would be wrong to blame all of the financial problems that the new owners of my business experienced on the telephone problems, the stress of trying to run a telephone-dependent business contributed to the plight of the new owners’ stress. Finally, they just gave up the fight, because no one would believe them – yet they were believed, as Telstra documents show. These documents even note that the TIO (John Pinnock) discussed the faults with Telstra because I had also complained of the same faults years before. So all of this going on behind the scene, as the following FOI documents show My Story Evidence File 4-A to 4-B, was a so-far successful attempt to stop a government investigation into why these ongoing faults were not addressed in the TIO arbitration process set up by the government to address them.
Questions on Notice (2)
There are further issues surrounding the TIO’s answers to similar Questions on Notice asked by the Senate committee. The TIO’s official response confirms that Ericsson purchased the arbitration main technical consultancy firm, Lane Telecommunications, during the COT arbitrations. All the technical information that I supplied to Lane Telecommunications during my arbitration, confirming the AXE Portland and Cape Bridgewater lockup problems were not just a local problem but a national and international problem, affecting hundreds of exchanges all over the world, was acquired by Ericsson.
At least three other COT claimants also had businesses connected to Ericsson AXE exchanges and their claim material, too, was on Lane’s computer data files when the company was sold.
Australia must be the only country in the Western world that allows a witness (Lane Telecommunications was a witness to what the COT claimants had uncovered) to be purchased during a major litigation process, particularly when even the administrator advised the Senate committee of this, on 26 September 1997 (see Senate Evidence File No/61).
I believe the Hon Malcolm Turnbull, Prime Minister of Australia, and the Hon Senator Mitch Fifield, Minister for Communications, have to answer these questions: How long was Lane Telecommuncations in contact with Ericsson, the major supplier of telecommunication equipment to Telstra, before Ericsson purchased Lanes? Is there a link between Lanes and DMR ignoring my Ericsson AXE claim documents and the purchase of Lanes by Ericsson during the COT arbitration process?
Food For Thought
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 was the defendants during the COT Fast Track Settlement Proposal / Arbitration procedure.
Chapter Three below shows a seconded Telstra employee, Grant Campbell, signed off known-false information he had conjured in his letter to Telstra concerning my ongoing faxing problems.
The fact that Warwick Smith allowed Grant Campbell, to sign off letters on his behalf and, in doing so, minimise Telstra’s liability in my arbitration, is beyond contempt when you consider Telstra was the defendant in that arbitration. If on the other hand, Warwick Smith didn’t give Mr Campbell the authority to sign off FTSP arbitration fault related correspondence, then who gave that authority?
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?