PLEASE NOTE: absentjustice.com brief summary part 2 was as created on 27 November 2018, and is a work in progress and continues from absentjustice.com brief summary part which was last edited in May 2019.
Threats that became a reality
Although the threat segment has been raised elsewhere in our reporting, it was important to again raise these threats by Telstra which were NEVER investigated by the arbitrator or administrator of the process, because, not only does this show the power Telstra has over judges and arbitrators in Australia’s legal system, but it also shows Telstra was allowed to get away with this conduct during an official Australian Federal Police investigation – even though the threats made against me were carried out in full view of the government. We COT cases had to be “stopped at all costs” from proving our claims, which were primarily that the phone problems that brought us to the arbitration process were still ongoing because the arbitrator closed his eyes and only found against Telstra for past historic phone complaints.
During the early days of my 1994 arbitration, Telstra’s Paul Rumble rang me about my complaints regarding the slow delivery of FOI documents I needed for preparing my arbitration claim. I had complained to the Commonwealth Ombudsman, who was now leaning on Telstra. Mr Rumble astounded me when he told me the slowness of delivery was due to Telstra needing to vet the requested documents for any sensitive material – because I had passed the information on to the AFP. This was preposterous on at least two counts. Firstly, the slow delivery had been ongoing since my first request for FOI documents in December 1993. Secondly, it was my civic, if not legal, duty to co-operate with any police investigation. It was certainly not a subject that the telecommunication corporation should have any jurisdiction over.
I informed Dr Hughes, over many months, that Telstra threatened to continue withholding my requested arbitration documents if I assisted the AFP’s investigations, and that Telstra carried out this threat which was now hindering the preparation of my arbitration claim. However, Dr Gordon Hughes, in his position as arbitrator declined to assist me with the threats. Dr Hughes’ failure to assist me enticed Senator Ron Bowell to become involved, as the following Senate Hansard shows.
Page 180 ERC&A, from the official Australian Senate Hansard (dated 29 November 1994), reports Senator Ron Boswell asking Telstra’s legal directorate:
“Why did Telecom advise the Commonwealth Ombudsman that Telecom withheld FOI documents from Alan Smith because Alan Smith provided Telecom FOI documents to the Australian Federal Police during their investigation?”
After receiving a hollow response from Telstra, which the senator, the Australian Federal Police (AFP) and I all knew was utterly false, the senator states:
“Why would Telecom withhold vital documents from the AFP? Also, why would Telecom penalise COT members for providing documents to the AFP which substantiate that Telecom had conducted unauthorised interceptions of COT members’ communications and subsequently dealt in the intercepted information by providing that information to Telecom’s external legal advisers and others?” (See Senate Evidence File No 31)
What is so appalling about this withholding of relevant documents is that no one in the TIO office or government has ever investigated the disastrous impact this had on my overall submission to the arbitrator.
It is blatantly obvious The Establishment, which controlled my arbitration process, also denied me my rights as an ordinary citizen – an equal before the law – and ultimately deprived me the right of having justice run its due course. The arbitrator and the government (who, remember, at the time fully owned Telstra) should have initiated an investigation into why an Australian citizen, who assisted the AFP in their investigations into unlawful interception of telephone conversations, was disadvantaged during a civil arbitration process.
Furthermore, when Telstra carried out those threats, Dr Hughes covered up the withholding of these discovery documents by writing to Laurie James, president of the then Institute of Arbitrators Australia, on 16 February 1996 and stating my not-received 24,000 FOI documents were received and read by either him or the arbitration resource unit. TIO official arbitration records, dated 30 March 1995, show those documents never reached the arbitration process (see Prologue/Chapter Three).
Eighteen months after Dr Hughes misled Mr James about these 24,000 late-received documents, a Senate estimates committee investigation was set up to investigate five COT cases’ complaints concerning their documents, which had also been withheld from them. Had Dr Gordon Hughes come forward and admitted to the Senate committee that he deceived the Institute of Arbitrator Australia concerning my withheld FOI documents, I would have been brought into that investigation.
John Wynack, director of investigations for the Commonwealth Ombudsman’s Office, and Tony Morgan, national chief adjuster for GAB Robins (Australia), are fully aware that most of these 24,000 documents were provided with no identification or schedules, while others belonged to the Fortitude Valley and Lutwyche telephone exchanges in Brisbane, more than 1,200 kilometres from my exchange. How could I submit this Fortitude Valley and Lutwyche technical documentation into my own Cape Bridgewater Holiday Camp arbitration claim when it belonged to Brisbane COT case members Ann Garms and Maureen Gillan?
Under the heading, A MATTER OF PUBLIC INTEREST, the Senate Hansard records of 20 September 1995 show a very emotional Senator Ron Boswell discussing the injustices that we four COT claimants (i.e., Ann Garms, Maureen Gillan, Graham Schorer and me) experienced during our so-called government-endorsed arbitrations:
Eleven y“ears after their first complaints to Telstra, where are they now? They are acknowledged as the motivators of Telecom’s customer complaint reforms. … But, as individuals, they have been beaten both emotionally and financially through an 11-year battle with Telstra. …
“Then followed the Federal Police investigation into Telecom’s monitoring of COT case services. The Federal Police also found there was a prima facie case to institute proceedings against Telecom but the DPP [Director of Public Prosecutions], in a terse advice, recommended against proceeding. …
“Once again, the only relief COT members received was to become the catalyst for Telecom to introduce a revised privacy and protection policy. Despite the strong evidence against Telecom, they still received no justice at all. …
“These COT members have been forced to go to the Commonwealth Ombudsman to force Telecom to comply with the law. Not only were they being denied all necessary documents to mount their case against Telecom, causing much delay, but they were denied access to documents that could have influenced them when negotiating the arbitration rules, and even in whether to enter arbitration at all.
“This is an arbitration process not only far exceeding the four-month period, but one which has become so legalistic that it has forced members to borrow hundreds of thousands just to take part in it. It has become a process far beyond the one represented when they agreed to enter into it, and one which professionals involved in the arbitration agree can never deliver as intended and never give them justice. …
“I regard it as a grave matter that a government instrumentality like Telstra can give assurances to Senate leaders that it will fast track a process and then turn it into an expensive legalistic process making a farce of the promise given to COT members and the inducement to go into arbitration. The process has failed these people and can never give them justice – a point confirmed by professionals deeply involved in the arbitration process itself and by the TIO’s annual report, where conclusion is described as ‘if that is ever achievable’. …
“Telecom has treated the Parliament with contempt. No government monopoly should be allowed to trample over the rights of individual Australians, such as has happened here.” (See Senate Hansard Evidence File No-1)
Also on 20 September 1995, I attended Senator Alston’s Canberra Parliament House office in the company of The Hon David Hawker MP and four other witnesses in September 1995. After I told the senator that the arbitrator Dr Hughes and his technical units had, for reasons unknown, not investigated this serious ongoing lockup AXE fault, which was still affecting my business, the senator asked me to keep his office informed of any other issues the arbitrator would not investigate and to supply his office with that evidence. In March 1996, the John Howard government won office and Senator Alston became the new minister for communications. Paul Fletcher, assisting Senator Alston, asked me to continue helping the senator with these telecommunication issues from April to June 1996.
It will be apparent from the following information (see Open Letter File No/41/Part-One and File No/41 Part-Two), that the wind changed and my valid claims were suppressed – and are still being suppressed, 22 years later.
In a letter I received from Mr. Paul Fletcher dated 4 September 1996 he noted:
“In addition, I have examined the material you sent me. On the basis of the information I have received, I do not believe that there is any action in relation to your case that would be appropriate for the Minister to take at this time. The Minister has no power to intervene in the conduct of the COT arbitrations. which are being administered by the Telecommunications Industry Ombudsman.”
During this September 1995, meeting in Senator Richard Alston’s Canberra office, together with the Hon David Hawker MP and four other members of the COT group, I also explained that I could show that Telstra had knowingly perverted the course of justice by deliberately tampering with evidence during my arbitration (see Chapter One to Three in our Tampering With Evidence) page. Perhaps it should be noted here that Senator Alston had been a Barrister at the Victorian bar before becoming a Government Minister and so he then assured me that, since I had now officially provided him with information regarding how senior Telstra staff had condoned this unlawful behaviour; and since Telstra had carried out this unlawful behaviour against an Australian citizen while that citizen was involved in a Government-facilitated process with Telstra; and since this unlawful behaviour had occurred while Telstra was still entirely owned by the Government, then the Telecommunications Act and the Trade Practices Act would provide the Senator with the opportunity to officially question Telstra about the validity of my claims, on notice, through the Senate. The Senator also noted that the Government could additionally direct AUSTEL to investigate my claims, according to the Telecommunications Act of 1991, I assuming the Senator was referring to Nos 98 -1991, Sections 333 to 338.
As a result of this discussion with Senator Alston I then sent his office a copy of an eighty-eight-page report, I had compiled, together with various supporting Exhibit documents. This report detailed the way Telstra had broken the law by tampering with Government-owned equipment during my legal arbitration process, which was being conducted under the auspices of the Supreme Court of Victoria. This was the report that Paul Fletcher eventually returned to me (see following link > Open Letter File No/41/Part-One and File No/41 Part-Two).
I also have conclusive evidence of how, years after Mr Fletcher had returned my June 1996 report, other bureaucrats in the Department of Communications Information Technology and the Arts (DCITA) began investigations into other areas of my claims and instead of the department investigating my claims they sent this material straight to Telstra to ask if my claims were valid, which is a bit like a police officer asking a thief caught stealing a car if he should be charged for that theft! Interestingly, Paul Fletcher had previously worked at that DCITA too.
I have raised these DCITA decisions (to go straight to Telstra instead of properly and transparently investigating my claims) because, since Senator Alston requested my report in the presence of David Hawker, surely they would then both be informed of the outcome of Paul Fletcher’s investigations into that report. I know for a fact that Mr Hawker did not receive any information about my report because he told me, on two separate occasions, that he had not received any follow-up information at all, which further indicates that Senator Alston was never advised of the significance of that report either.
If the current Member for Bradfield (New South Wales), The Hon Paul Fletcher, (see opposite) had properly ensured that my evidence was correctly investigated in 1996, and the Liberal National Government had then immediately investigated Telstra in relation to why they did not honour the original deal they made with AUSTEL, which would have meant that they would have tested all of the COT Cases’ Customer Access Network connections properly, at the time, as part of the Government-endorsed arbitration process, then my arbitration claims would have been exposed in 1996, and I could have lived a better life than what the current Coalition Government has afforded me.
Perhaps the real reason for my claims never being assessed on merit was because, in March 1996, the TIO, Warwick Smith, became a Front Bench Minister in the John Howard Government. In simple terms, it became clear that no matter what proof I provided to Paul Fletcher while he was assisting Senator Richard Alston, during the same Howard Government (including the evidence contained in Open Letter File No/41/Part-One and File No/41/Part-Two), the establishment had decided the COT Cases had to be stopped, at all cost, from exposing exactly how unethical the process had been. Regardless of the damage this cover-up caused to the claimants.
I believe that Ann Garm’s story, > The Ultimate Betrayal, is a further testament that our claims should be transparently investigated. I include the following link from The Ultimate Betrayal, Chapter 5: The Four Part Mini Series, because the same chief of staff to Senator Richard Alston, Paul Fletcher, treated my valid claims against Dr Hughes and Telstra in a similar manner to which Ann states he treated her valid claims. Chapter One of the following absentjustice.com brief summary part 2 page shows I provided the following conclusive evidence, namely exhibits Open Letter File No/41/Part-One and File No/41 Part-Two, to Paul Fletcher just after the coalition government won office in March 1996. Anyone comparing the report and exhibits I provided to Paul Fletcher (ex-lawyer) with those provided by Ann Garms, which are mentioned below, will conclude Paul Fletcher or his staff did not read the information Ann and I placed before them. Had they done, so both Ann’s case and mine would have been settled at that time.
The following quote is from Chapter 5: The Four Part Mini Series,
“It was an incredulous situation, a situation which was usually reserved for sinister plots in movies. To think that the Legislation Committee Senators had been involved in the search for this important evidence for almost three years when all along it was in Parliament House. Given Senator Alston’s involvement in the first broken promise, it was simply devastating when he did not respond to my request, not even an acknowledgement was received. I visited his office in an attempt to obtain the evidence, but was treated with the utmost distain by his Chief of Staff, Mr Paul Fletcher. As a result I was unable to produce the evidence which incredulously had all along been in the possession power and control of the Politicians, including Senator Alston”.
Public servants within the bureaucratic system should not have power over the rule of law and, in doing so, disregard evidence that a non-graded arbitrator, who had never performed an arbitration process of the magnitude of the COT arbitrations, abused the Australian Arbitration Act 1984. Lives were not just ruined by an incompetent arbitrator who, during the COT arbitrations, actually failed his Institute of Arbitrators Australia exams to become a graded arbitrator, but lives were also ruined by bureaucrats who were prepared to conceal Dr Hughes’ failure to conduct the arbitrations under the agreed ambit of the arbitration procedures as the following government records show: (see page 99 > COMMONWEALTH OF AUSTRALIA – Parliament of Australia).
Although we have discussed the COT strategy segment Prologue Evidence File 1-A to 1-C, in our absentjustice.com – brief summary part 1 page we have not discussed some of the ramifications of Telstra being allowed to pervert the course of justice the way they did during the COT arbitrations.
The author of this COT strategy is the same lawyer with whom I was forced to register each of my phone complaints, in writing, before Telstra would address these problems. NONE of the fault information I provided to this lawyer prior to or during my FTSP arbitration process, concerning ongoing telephone problems and Telstra’s response to those problems, were ever released to me during my arbitration.
To add further insult to these injustices, on 12 September 1994, as part of the arbitration process, I was obliged to meet with Telstra’s consulting forensic psychologist in Portland’s Richmond Hotel so he could analyse my mental health as part of Telstra’s defence of the arbitration process. One of the most important issues I raised with him was the trauma I suffered at the hands of the legal firm that hired him. He appeared to listen carefully to what I described and he said being directed to register phone complaints, in writing, with Telstra’s lawyer, before they would be investigated, was most disturbing. I provided confirmation that losing six incoming calls in a single day was common. Writing to a lawyer, explaining lost calls, was more than just soul destroying, it just about broke my will power to carry on. He said he was shocked Telstra and its legal firm forced this on me and agreed this would certainly affect my mental state in trying to cope with these ongoing problems.
However, when Telstra’s lawyers, which the government assured us would not be used in our arbitrations (see Prologue Evidence File No/2), provided this clinical psychologist’s witness statement to the arbitrator, it was only signed by a lawyer from this legal firm. It bore no signature of the psychologist and didn’t contain his concerns regarding me having to first contact this legal firm, in writing, before Telstra would address my telephone problems.
On 26 September 1997, after most of the arbitrations were concluded, the administrator of the arbitrations, John Pinnock, formally addressed a Senate estimates committee concerning the arbitrator losing control over Telstra and the arbitration process in general (see page 99 in the following > COMMONWEALTH OF AUSTRALIA – Parliament of Australia link). Mr Pinnock stated:
“In the process leading up to the development of the arbitration procedures — and I was not party to that, but I know enough about it to be able to say this — the claimants were told clearly that documents were to be made available to them under the FOI Act.
“Firstly, and perhaps most significantly, the arbitrator had no control over that process, because it was a process conducted entirely outside the ambit of the arbitration procedures.”
There is no amendment attached to the arbitration agreement the claimants signed that allows the arbitrator to conduct those particular arbitrations entirely outside the ambit of the arbitration procedure – and neither is it stated that the arbitrator will have no control over the process once we sign those individual agreements. How can the arbitrator and TIO continue to hide under the confidentiality clause contained in our arbitration agreement when that agreement did not mention the arbitrator would have no control over the process or that it would be: “conducted entirely outside the ambit of the arbitration procedures.”
COT Case Graham Schorer shows in our Open Letter File No/35 link > 20130627133948062. that, although the Australian Government Solicitor (AGS) warned Telstra that Graham Schorer (COT spokesperson), of Golden Messenger Courier services, had a valid claim against them for misleading and deceptive conduct under section 52 of the Australian Trade Practices Act and advised Telstra should settle with Mr Schorer, Telstra ignored the AGS. For the next NINE years, Telstra went on a deliberate campaign to destroy Mr Schorer’s credibility and his finances as the following link justicecommand.com shows.
Please click on the following absentjustice.com – brief summary part 1 link to further investigate the injustices that occurred during the COT arbitrations.
On 25 July 2002, Senator Len Harris travelled from Cairns in Queensland (a trip that took more than seven hours) to meet four other COTs and me, in Melbourne, in an attempt to ensure our claims of discrimination against the Commonwealth were fully investigated. He was appalled that 16 Australian citizens were so badly discriminated against in such a deplorable fashion by the then-Coalition government, despite a Senate estimates committee working party being established to investigate all 21 COT-type claims against Telstra.
He was stunned at how I had collated this evidence into a bound submission. When Senator Harris read the 9 August 2001 letter from Senator Alan Eggleston Liberal Party warning me that if I disclosed the in-camera Hansard records (which supported my claims that sixteen Australian citizens had been discriminated against in the most deplorable manner) I would be held in contempt of the Senate and risk jail, he Senator Harris, was very upset to say the least.
At a press conference the next day, Senator Harris aimed questions at the chief of staff to the Hon Senator Richard Alston, Minister for Communications see Senate Evidence File No 56 he asked:
“Through the following questions, the media event will address serious issues related to Telstra’s unlawful withholding of documents from claimants, during litigation.
- Why didn’t the present government correctly address Telstra’s serious and unlawful conduct of withholding discovery and/or Freedom of Information (FOI) documents before the T2 float?
- Why has the Federal government allowed five Australians (from a list of twenty-one) to be granted access to some of the Telstra discovery documents they needed to support their claims against Telstra, but denied the same rights to the other sixteen?
- Why has the Federal Government ignored clear evidence that Telstra withheld many documents from a claimant during litigation?
- Why has the Federal Government ignored evidence that, among those documents Telstra didsupply, many were altered or delivered with sections illegally blanked
- out? (See An injustice to the remaining 16 Australian citizens)
Senator Barnaby Joyce brokers a deal with the government.
The agreed deal was that, if the government wanted Senator Joyce’s most crucial vote in the Senate for the full privatisation legislation of the Telstra Corporation, then the Minister for Communications, Information Technology and the Arts (Senator Helen Coonan) would have to agree to resolve all the still-unresolved COT/Telstra arbitration issues for all 14 members of COT. Senator Coonan and Senator Joyce formally agreed that this would go ahead and our claims would be reassessed under an independent commercial assessor as his letter to me dated 15 September 2005 (see Senate Evidence File No 20) noted:
“As you are aware, I met with a delegation of CoT representatives in Brisbane in July 2005. At this meeting I made an undertaking to assist the group in seeking Independent Commercial Loss Assessments relating to claims against Telstra.
As a result of my thorough review of the relevant Telstra sale legislation, I proposed a number of amendments which were delivered to Minister Coonan. In addition to my requests, I sought from the Minister closure of any compensatory commitments given by the Minister or Telstra and outstanding legal issues.
In response, I am pleased to inform you that the Minister has agreed there needs to be finality of outstanding CoT cases and related disputes. The Minister has advised she will appoint an independent assessor to review the status of outstanding claims and provided a basis for these to be resolved.
I would like you to understand that I could only have achieved this positive outcome on your behalf if I voted for the Telstra
Once Senator Joyce had cast that crucial vote, however (the one vote that was hanging in the balance), and had, therefore, made history for the Telstra Corporation and the Liberal-National Coalition Government, Senator Coonan reneged on her promise with a decisive back-flip, as many of the letters collected on this website so clearly shows.
3 November 2006: Senator Helen Coonan wrote to David Hawker, Speaker in the House of Representatives (also my Federal Member of Parliament) stating:
“Thank you for your representation of 17 August 2006 on behalf of Mr Alan Smith regarding Mr Smith’s allegations that Telstra monitored his phone calls and emails during an arbitration process with Telstra. The interception of emails and monitoring of phone calls is an offence under the Telecommunications (Interception and Access) Act 1979. Mr Smith should consider his dispute through the dispute resolution bodies, including his State Office of Fair Trading, the Competition and Consumer Commission, the Australian Communications and Media Authority state, and the courts.”
Following the Hon Senator Helen Coonan’s advice, I contacted Consumer Affairs Victoria (CAV) through an advisor, who also assisted me in preparing a claim to be provided to a barrister for the CAV. From October 2007 through to late-2008, this un-named advisor, a once very high-ranking Victorian police officer, had a number of discussions with this barrister, who then proceeded to assess our various claims.
During that investigation, the CAV discovered that many of the arbitration documents I had faxed to the arbitrator may have been intercepted by someone with access to Telstra’s network. When it was becoming clear that no-one wanted to investigate Telstra’s illegal interception of legal documents en route to various government departments and, in my case, en route to the arbitrator as well, I received a letter dated 17 May 2007 from Senator Coonan, stating:
“I have now made both formal and informal representations to Telstra on behalf of the CoTs. However, Telstra’s position remains that this is a matter most appropriately dealt with through a court process. Telstra is not prepared to undertake an alternative means of pursuing this matter. I also appreciate the depth of feeling regarding the matter and suggest you consider whether court proceedings may be your ultimate option.”
Surely it was Senator Coonan’s responsibility, as the Minister for Communications, Information Technology and the Arts, to initiate an official enquiry into why, both during and after the COT arbitrations, Telstra continued to intercept in-confidence documents leaving my office (or residence), AND the offices of various Senators, AND the Commonwealth Ombudsman’s office?
In 2015, after putting a number of my documents up on my LinkedIn site, a number of offshore lawyers emailed me to express their shock and disbelief in relation to my situation. One of them, a lawyer practicing in the Egyptian Court in Cairo, said that he would be willing to provide his legal opinion regarding six separate areas where he believed the arbitration process had failed the first four COT claimants and so, with his permission, I then sent a copy of his two-page document to the Australian Federal Police, along with his name, although I decided not to publish his name on the website. Since then he has notified me that I can now identify him in any manuscript I might prepare regarding the first four COT arbitrations, and I can also explain his reasons for believing that the arbitration process failed the COTs. We have now been corresponding in relation to the arbitration process for the last eighteen months.
So, on one hand, we have two Australian Government investigations and one IAMA investigation that have all apparently ended, but not one of those three will hand down a finding. On the other hand, Alaa Elemary, a lawyer practising in the Egyptian Court in Cairo, clearly sees injustices that he is prepared to put his name to, if or when I publish my manuscript “Absent Justice.”
In order to convince myself and other members of the COT group that we do have a story to tell I decided to forward further extracts from absentjustice.com to a number of international lawyers and received the following comments:
Advocate/International Arbitrator/Due Diligence Expert/Stock Exchange & Capital Market Arbitration Expert wrote:
“I am really shocked to learn the contents of your research. It is true, which I do not doubt, then, it can lead to havoc in international arbitration, especially in Australia. It will irreparably destroy the basic fundamental principle of confidentiality of an Arbitration process and can have serious adverse repercussions for Australia as a Seat of Arbitration. I would certainly suggest you to [sic] continue with your very important research and if possible do send me the updates”.
The person who wrote the above, is a well-known international arbitrator with over 2 decades of practice. He is the Program Director of the Indian Branch of the Chartered Institute of Arbitrators (London) – CIArb. He has been associated as a Panel Mediator Judge and Mentor with different teams participating in William C. Vis International Commercial Arbitration Moot Competition and International Moot Competition at Shanghai, China. Mr Shah regularly conducts training courses for CIArb-India at Mumbai, Delhi and Chennai for training professionals as Arbitrators. This person was invited by the Commission under the Chairmanship of Justice B.N.Srikrishna (Retd.) to suggest reforms in arbitration practice and law in India. Interviewed by Alok Vajpeyi student of 5th year, Institute of Law, Nirma University.