Report to the Prime Minister – 2016

Please click onto the first of seven links, this is the original letter and SVT report that was sent to the government in April 2016, and the two named Telstra executives.  The six other numbered links are the exhibits numbered as they are numbered in the report.  All statements made in the report can be checked against the attached exhibits.

If you click onto the exhibits shown directly below and collate the numbering system with the various numbered statements in the report you will learn just how corrupt the Telstra Corporation is. You can also use the same numbering system obtained from our download section at the conclusion of this report

Govt/Telstra/SVT Report 23 April 2016

Govt/Telstra/SVT Report Exhibits 1-A to 10-B

Govt/Telstra/SVT Report Exhibits 11 to 23-G

Govt/Telstra/SVT Report Exhibits 23-H to 30-A

Govt/Telstra/SVT Report Exhibits 30-B

Govt/Telstra/SVT Report Exhibit 31-A to 46-E

Govt/Telstra/SVT Report Exhibits 46-F to 62

 

00O00

The Hon Malcolm Turnbull,                                 The Hon Barnaby Joyce

Prime Minister of Australia                                  Deputy Prime Minister

Mr Dan Tehan, Federal Member for Wannon

Ms Sue Laver, Telstra General Counsel

Mr John P Mullen, Telstra Board Chair

This report is being copied to the Hon Barnaby Joyce and Dan Tehan because each of your offices were provided with a CD of the first draft of this report between May and December 2014. Many members of the current government and Telstra’s senior executives have been aware of these issues for years, after receiving conclusive evidence provided by me that support my claims. No investigation has ever been done by the government or Telstra, to either refute or validate those claims. I have now prepared this SVT report and the accompanying exhibits on the attached CD so that it can no longer be stated my claims are not valid. As with the previous report, we are providing a CD with exhibits 1-a to 50-c. I have also supported my statements in this report by refer ring to Exhibits which can be downloaded from my webpage absentjustice.com

In June 1993, when I first alerted AUSTEL that Telstra had a major network problem that was creating serious 008/1800/lock-up/short duration post-dialing delay faults, John MacMahon (AUSTEL’s general manager of consumer affairs) and Bruce Mathews (from AUSTEL’s monitoring unit) asked that I alert AUSTEL to any fresh evidence I might come across regarding this matter. John MacMahon wrote to Telstra’s Steve Black on at least two occasions in January 1994, using my comparison of Telstra’s Call Charge Analysis System (CCAS) data for the 055 267267 service line, which my 008/1800 free-call service line was trunked through. The data showed that Telstra (and therefore the government, too) certainly did have records showing massive deficiencies between the actual call termination period and what Telstra charged their customers. Telstra had a majornational network software problem, at least midway through 1993.

The Hon David Hawker (Dan Tehan’s predecessor) worked with AUSTEL and me during 1994 in an attempt to discover how many businesses in his electorate were suffering from the same 008/1800/billing faults. The CD I provided to your offices in 2014 shows that in August 1996, AUSTEL was still demanding Telstra fix this ongoing 008/1800 billing problem.

The government regulator, AUSTEL / ACMA, allowed Telstra to continue to promote their 008/1800 free-call service even though they knew of the many deficiencies in it. Section 52 and 53 of the then-relevant Trade Practices Act states:

52 Misleading or deceptive conduct.

  1. A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive.
  2. Nothing in the succeeding provisions of this Division shall be taken as limiting by implication the generality of subsection (1).

53 False representations.

A corporation shall not, in trade or commerce, in connexion with the supply or possible supply of goods or service or in connexion with the promotion by any means of the supply or use of goods or services…

Section 52 and 53 show that firstly, when AUSTEL allowed Telstra to continue to promote their 008/1800 service while aware of the many deficiencies in the product, they breached their statutory obligation to me as a claimant in the AUSTEL-facilitated government-endorsed arbitration by not officially notifying the arbitrator and the relevant Minister for Communications that the problems raised in my claim were ongoing and a separate issue Telstra had to address before the arbitrator could bring down a finding; and

Secondly, AUSTEL and Telstra breached their statutory obligations to the rest of the 008/1800 Telstra consumers by allowing Telstra to continue to promote this service for more than two years despite knowing the devastation this fault was causing to hundreds, possibly thousands, of 008/1800 consumers over many years.

Mr Turnbull, this report confirms I was told that these 008/1800/billing problems would be addressed – and fixed – during my arbitration.

The 2014 CD, discussed above, confirms Telstra’s visit to my business on 14 January 1998. On 22 January 1998, correspondence between Senator Richard Alston (then Minister for Communications), Telstra and the TIO discusses the 008/1800 billing problems raised in my arbitration indeed continuing after arbitration. No one contacted me at this time and the evidence confirming his claims was covered up by Telstra, the minister’s office and the TIO. This collusion begs investigation.

This current SVT report shows that even though I complained to AUSTEL in 1993 concerning Telstra’s ongoing 008/1800 problems they allowed Telstra to not test the COT businesses that had this 008/1800 service, during the BCI testing of November and December 1993. Exhibit 30-m shows AUSTEL’s Cliff Mathieson advised Telstra, on 9 December 1993, that Bell Canada International, through the advice of Telstra, had not tested the 008/1800 service. Finally, in November 1994, AUSTEL demanded to know why, during my arbitration (which included investigating my 008/1800 billing faults), Telstra failed to test my 008/1800 service line and only simulated the testing of the 1-800 service. Why did AUSTEL and the arbitrator allow the defendants to ONLY simulate the 1-800 SVT testing process? The answer is clear. Had Telstra performed the required mandatory SVT process of 30 incoming test calls, per line, to my business, it would have revealed to me, those testing my service, the arbitrator and his technical consultants, my technical advisors and those assisting Telstra in their arbitration that Telstra had major national network problems affecting all Telstra’s 008/1800 free-call customers. It was simply cheaper to ruin my life and that of my partner by not addressing these ongoing issues – and it protected the Telstra Corporation from a potential massive class action.

Section 51(v) of the Constitution of Australia gives the Commonwealth Parliament of Australia power to legislate on “postal, telegraphic, telephonic, and other like services”. The government should have maintained control of the national network issue with Telstra, not the defendants. Why was a corporation allowed to nullify the government’s power?

Please read this Cape Bridgewater Holiday Camp Service Verification Report. I ask that you, your advisors and the government recommend that the matters raised in this April 2016 report are transparently and impartially investigated so that my partner and I can live the rest of our lives in peace.

For the purpose of this report I shall refer to myself as either Alan Smith or Alan.

A number of government agencies seem to have been complicit in a cover-up of Telstra shortfalls. For well over 20 years, Alan has been attempting to get Telstra to take responsibility for financial losses that businesses incurred due to faulty telephone and fax lines.

The Administrative Appeals Tribunal (AAT) hearing, 3rd October 2008

On 3 October 2008, during the AAT hearing into Alan Smith’s claims, Mr Friedman directed ACMA to release, free of charge, all the FOI documents Alan had requested.

At this stage, critical documents, viewed for the first time, made it clear that AUSTEL/ACMA had known Telstra knew the SVT results they used to support their defence of Alan’s arbitration claims were false.

Introduction

This document is a summary of much longer reports relating to two Casualties of Telstra (COT) claimants:

  • a 183-page report regarding Graham Schorer’s claims against Telstra, including 447 separate exhibits; and
  • a 163-page report regarding Alan Smith’s claims against Telstra, including 486 separate exhibits.

This summary report has been prepared specifically to show irregularities in the arbitration proceedings and potentially illegal actions on the part of other players in the saga. It shows:

  1. how a legal arbitration process, administered under the Commercial Arbitration Act 1984 by the Telecommunications Industry Ombudsman (TIO) was hijacked by the defence, with complete disregard for the rule of law.
  2. how a government-appointed regulator (then called AUSTEL) was powerless to intervene and stop the COT arbitrations being hijacked, perhaps because of clauses contained in the Australian Crimes Act 1914 that require public servants to withhold information in certain instances.
  3. how three senior Telstra executives held positions on the TIO board and the TIO council at the same time as one or more of them were:
    1. the subjects of the TIO-administered COT arbitrations; and/or
    2. under investigation for misleading a Senate hearing.

These clear conflicts of interest may have affected the TIO investigation during the COT arbitrations. Telstra FOI documents show that while Telstra’s corporate secretary was also a member of the TIO board, he was given the task of deflecting the Senate charges.

  1. how draft reports, prepared in 1994 by AUSTEL (now called ACMA), regarding the telephone complaints lodged by Alan Smith and Graham Schorer, were withheld from Graham and Alan until November 2007 and October 2008. These 1994 reports show AUSTEL found that Telstra had misled and deceived both Alan and Graham concerning their telephone problems.
  2. how the four COT members were coerced into signing legally binding arbitration agreements drafted by Telstra; not by the special counsel attached to the TIO as they were purported to be and should have been. By signing these agreements, the COTs signed away critical rights that they would later need.
  3. how changes were made to the final version of the arbitration agreement, after it was reviewed and approved by the solicitors representing the claimants in the arbitration, but before it was signed by the COT claimants. The claimants were only made aware of these changes at the time they were to sign the agreement. They were told that if they did not sign the agreement in its present form, the TIO would not continue to administer their already operating Fast Track Settlement Proposal. They reluctantly abandoned their FTSP (commercial assessment process).

Statutory bodies compromised

Experts called by Telecom Australia during the arbitration process, and whose evidence the arbitrator trusted, were compromised, either by provisions of The Crimes Act or by their close relationship with Telecom Australia. This includes AUSTEL, who failed to disclose critical information, at the request of Telecom Australia and the Telecommunication Industry Ombudsman (TIO).

AUSTEL compromised by the Australian Crimes Act and their close relationship with Telecom Australia

The Australian Crimes Act of 1914 contains clauses that prohibit public servants from revealing information they know about problems within, or related to, another government department. For example, AUSTEL employees could be prohibited from exposing issues they detected with actions taken by Telecom (then fully government-owned) while they were investigating the complaints lodged by various COT claimants against Telecom.

Under the Australian Crimes Act 1914, no one inside AUSTEL could publicly comment on their awareness that Telecom Australia was submitting false and/or flawed defence documents to support their arbitration defence.

Although restrictions on public servants speaking openly about their work were removed in 1974, perhaps public servants in AUSTEL and various ministerial offices used the Australian Crimes Act 1914 to allow them to withhold critical information. The Crimes Act was never cited as a reason for withholding critical evidence. However, if this is not the reason, then the only other possibility is that they withheld evidence knowingly, in breach of Australian law. None of the government bureaucrats that Alan worked with prior, during and after his arbitration have ever referenced the Privacy Act or the 1914 Crimes Act to explain why they concealed their knowledge of Telstra knowingly misleading and deceiving him over many years.

The TIO board and council compromised by close relationship with Telecom Australia

Not only did Telecom Australia’s gagging of AUSTEL compromise evidence, but Telecom Australia also had personnel on the TIO board and council, a clear conflict of interest that may have led to the TIO itself becoming involved in a cover-up of Telecom Australia service shortfalls.

The cover-ups

Some critical aspects of the line testing, which Telstra agreed to conduct, were either not done at all or were only partially done. There were two aspects to the testing:

  • testing the lines out of the exchanges to the properties of the COT claimants. During the arbitration process, Telstra assured AUSTEL that they would carry out a special type of Service Verification Testing (SVT) from the local exchanges to COTs’ business premises (including Alan Smith’s business) so that the arbitrator could be absolutely certain that all COT services were operating up to the regulator’s standards. However, no such tests were ever performed on Alan’s service lines.
  • testing the lines into the exchanges of the COT claimants. This testing was supposed to be completed by Bell Corporation Canada using CCS7 monitoring equipment but it is clear that this testing was also not done because the Bridgewater exchange could not accept the CCS7 monitoring equipment.

The Service Verification Tests were never completed

The following two exhibits show correspondence between AUSTEL and Telecom Australia. AUSTEL was well aware of the deficiencies in the Service Verification Tests relating to the Cape Bridgewater Holiday Camp.

Although these tests were not carried out, Telecom Australia used their results to defeat Alan’s claim in the arbitration hearing.

Exhibit # Type of
correspondence
Date From To
Exhibit 25-a Letter 28 Nov 1994 Peter Gamble, Telstra Norm O’Doherty, AUSTEL
Exhibit 23-f Letter 16 Nov 1994 Norm O’Doherty, AUSTEL Steve Black, Telstra

NO cc

INTRODUCTION

Exhibit 25-a (below) shows, on 28th November 1994, Telstra’s Peter Gamble wrote to AUSTEL’s Norm O’Doherty about an AUSTEL letter dated 16th November 1994 E23-f, in which AUSTEL warned Telstra that the Cape Bridgewater Holiday Camp Service Verification Testing process had been deficient.  Independent communications expert Brian Hodge, B Tech; MBA (B C Telecommunication), and the attached CCAS data see Exhibit 23-a above, confirm these deficiencies and prove that the required regulatory Service Verification Tests that were supposed to have been carried out on all incoming calls to the Cape Bridgewater Holiday Camp were not carried out at all.  Mr Gamble’s letter to Mr O’Doherty states:

“Norm, As agreed at one of our meetings and as confirmed in your letter of 16th November 1994, attached please find the detailed Call Delivery Test information for the following customers.

  • Bova – Ralphies Pizza, Mordialloc, Vic
  • Love – Loveys Restaurant, Dixons Creek, Vic
  • Main – Glen Waters Fish Farm, Glenburn Vic
  • Smith – Cape Bridgewater Holiday Camp, Vic
  • Turner – Gourmet Revolution, Moorabbin, Vic
  • Trzcionka – Trzcionka Hairdressing, Glenelg SA

 This information is supplied to Austel on a strict Telecom-in-confidence basis for use in their Service Verification Test Review only and not for any other purpose. The information is not to be disclosed to any third party without the prior written consent of Telecom.”

Mr Gamble’s letter appears to be a veiled and sinister attempt to use the Australian Crimes Act 1914 without actually naming it, and raises the following questions:

o     Does the Crimes Act take precedent over Australian law?

o     Can Australian citizens actually be muzzled by the Crimes Act 1914 and therefore forced to conceal the truth about crimes they know have been committed against fellow Australians?

On 3rd October 2008, during an Administration Appeals Tribunal (AAT) Hearing into Alan Smith’s claim ACMA agreed to release to him, free of charge, all the FOI documents he had requested outside of the Act, Alan provided both the Chairman of the Australian Communication Media Authority (ACMA – previously called AUSTEL), and the entire ACMA Board, with conclusive proof that AUSTEL/ACMA has known since Mr Gamble’s letter of 16th November 1994 that Telstra knew the SVT results they used to support their defence of Alan’s arbitration claims were false.  Because of Graham Schorer’s position as official spokesperson for the COT group, Graham was called as a witness during this AAT hearing.  Transcripts of his evidence record Graham declaring:  “But as has been demonstrated here today everybody seems to feel as though, because these matters are a long time ago, that there is no public interest. What I am saying is that the public interest, and I believe that I have become a very good advocate of what is in the public interest as the spokesperson, is that these crimes that have been committed under the veils of secrecy and confidentialities are of public interest and no secret veil of confidentiality covers a criminal offence” see E23-l.

In November / December 1993, Bell Canada International (BCI) officially advised AUSTEL that they had not found any major problems in the Telstra network in relation to the claims lodged by Difficult Network Fault (DNF) customers who were, by then, known as the Casualties of Telstra, or COT Cases.

The first four COT claimants, Maureen Gillan, Ann Garms, Graham Schorer and Alan Smith had each signed a Fast Track Arbitration Procedure (FTAP) agreement by April 1994, as part of their attempts to have their Telstra-related telephone problems officially arbitrated via the TIO-administered FTAP process.  The COT claimants however, were never told that the Senior Telstra Executives who would represent the defendants in the arbitration (Telstra) were also members of the TIO Board and the TIO Council at the same time as they were representing Telstra in the COT arbitrations.  These four claimants were also not told that the TIO and the TIO staff would not intervene if they discovered, during the arbitration process, that Telstra was acting outside the law by:

a.           Submitting to the arbitration test results known to be false but still covered by sworn statutory declarations and witness statements; and

b.          Withholding relevant documents legally requested by the claimants until after the arbitrator had handed down his decisions.

On 31st December 1995, Alan Smith asked the TIO to provide Alan with copies of all the documents related to the original documents related to the COT arbitration process.  On the 10th January 1996, the TIO replied, noting:

“I refer to your letter of 31 December 1995 in which you seek to access to various correspondence held by the TIO concerning the Fast Track Arbitration Procedure. I do not propose to provide you with copies of any documents held by this office”

Seven years later, when Alan finally did receive some of the documents he had asked for, he discovered proof that, six weeks after the arbitrator had brought down his award, the TIO Special Counsel, Telstra the TIO and arbitrator were all corresponding between each other concerning the impracticable Cape Bridgewater Bell Canada International (BCI) tests.

Both Alan and the Hon David Hawker MP passed this same information to the then-Minister for Communications, Senator Richard Alston, but there never was any transparent investigation into any of the many documents provided to Senator Alston’s office.  Senator Alston’s Chief of Staff at that time was David Quilty.  Mr Quilty is now Group General Manager of Public Policy & Communications, Telstra.

In Canberra on 21st March 1995, Alan Smith spoke to Frances Woods and Cliff Mathieson of AUSTEL, who was the facilitator of the COT/Telstra Fast Track Arbitration Procedure (FTAP), telling Mr Mathieson (then AUSTEL’s Chief Engineer) that he believed the BCI Cape Bridgewater tests were fundamentally flawed and either AUSTEL and Dr Hughes (the arbitrator) or Telstra (the defendants) should therefore, withdraw the BCI test results from Alan’s arbitration process.  Mr Mathieson replied that he understood the frustrations related to the BCI tests, both Alan’s frustration and that of other COT claimants too but, he said, AUSTEL was powerless to intervene and he was ‘unable’ to comment further on the matter.  At that time, although both Alan and Graham Schorer (COT Spokesperson) had officially signed for the FTAP as part of their attempt to have their ongoing telephone problems fixed, neither Alan or Graham were aware of the Crimes Act 1914 and the way it prohibited public servants from revealing anything they might know in relation to problems within or related to another Government Department.  At the time of the COT arbitrations, Telstra was fully Government-owned.

Before Neil Tuckwell was appointed as Chairman of AUSTEL in 1994, he had been a senior executive with Telecom New Zealand, a company then, with strong ties to Telecom Australia (now called Telstra) and, on 12th July 1995 (see E30-I below), it was Mr Tuckwell and AUSTEL’s Cliff Mathieson (also an ex-Telecom Australia employee) who, without being specific, advised Alan Smith’s solicitors (Tait’s) that the Bell Canada International (BCI) tests ‘might not have been conducted at all’, when Cliff Mathieson noted:

“This letter responds to your correspondence dated 29 June 1995 (your reference Mr Ezzy.7.18) In relation to your client Mr Alan Smith. Mr Tuckwell, Chairman, AUSTEL, has requested that I reply on his behalf.

The tests to which you refer were neither arranged not carried out by AUSTEL. Questions relating to the conduct of the tests should be referred to those who carried them out or claim to have carried them out.”

It is difficult to imagine AUSTEL’s Chairman and Chief Engineer only providing half the details regarding tests that we now know could not possibly have ever been carried out because the CCS7 monitoring equipment that BCI reported they had used could not be facilitated at either the Cape Bridgewater RCM or Portland exchange.  Statements from Brian Hodge MBA of BC Telecommunications, who Telstra had employed as an engineer for twenty-nine years E30-f and two Telstra witnesses E30-e further confirm that BCI could not have carried out the tests they describe in their Cape Bridgewater report.  If Mr Tuckwell and Mr Mathieson weren’t worried about the Australian Crimes Act 1914 when they wrote this letter then what was it that stopped them from spelling out the truth sixteen years ago? Just imagine had either of these public servants told the truth to what they knew in 1995, Alan Smith’s matters that have festered since then would have been investigated and found correct in 1995.

During the COT arbitrations, as part of Graham Schorer’s  role as the official COT Spokesperson, he had many discussions with members of the group regarding serious flaws in the BCI and Service Verification Tests (SVT) reports that were being used as evidence in the COT arbitrations.  The COT claimants believed that the fundamentally flawed BCI investigation and the SVT testing process had not uncovered any of the real and serious problems that were still being experienced by those COTs who still had businesses up and running:  four COT claimants had already lost their businesses by then, as a direct result of the ‘undetected’ telephone problems.

Alan Smith’s two Reports to the Senate, due to be completed in 2010, show that not only did AUSTEL allow Telstra to limit the scope of the COT BCI and SVT tests but, in the cases of both Alan and Graham at least, they also allowed Telstra to limit the parameters regarding the Government Regulator’s mandatory testing standards so that the only complainants to be included in the testing process would be those that Telstra believed were suffering from telecommunications problems.  This meant that, even though AUSTEL had already advised the Federal Government that AUSTEL’s investigations showed that at least some of the problems being reported by the COT claimants were certainly quite ‘real’, the mandatory testing would still not include all those COT claimants that Telstra refuted could be suffering phone problems to the extent the COT Cases alleged.

Alan’s two Report to the Senate further confirm that twice during the COT arbitrations, AUSTEL warned Telstra that the Service Verification Testing Process that Telstra carried out on 29th September 1994, at the Cape Bridgewater Holiday Camp, was deficient, but Telstra was still allowed to submit to the arbitration the results of this deficient testing process, covered by Telstra affidavits swearing that the testing process had met all of AUSTEL’s regulatory standards.

Eventually various other COT claimants began complaining to Graham Schorer as (COT spokesperson) about the unethical way that Telstra carried out the Service Verification Testing Process and finally Graham refused to have these tests carried out at his business unless Telstra first connected a ‘call line identification monitoring device’ so Graham could see the results for himself, without having to rely solely on Telstra statements that the tests had been effective.  Telstra never did conduct any Service Verification Testing on Graham’s lines in 1994/95, the time period that the AUSTEL quarterly COT Case Report recommended.

Exhibits 46-a and E46-b (below) use Telstra’s own Arbitration Briefing Report B003 to prove that, in 1995 / 96 Graham Schorer was still lodging complains about the same type of telephone problems that were raised by AUSTEL with the then-Minister for Communications, the Hon David Beddall MP, in August 1993.  In other words – nothing had changed between 1993 and 1996, even though the 1994 arbitration process was supposed to have located and fixed these problems.

Exhibit 46-d (below), page 132 from Hansard records of a Senate Estimates Committee Meeting on 25th February 1994, report that the then-Shadow Minister for Communications, Senator Richard Alston, questioned the then-Chairman of AUSTEL regarding what he knew about the AXE telephone exchange recorded voice announcement (RVA) that had been causing major problems for Alan Smith’s business since 1992, by incorrectly advising callers that: “The number you are calling is not connected”.  This same RVA problem had been occurring at the Lonsdale AXE exchange that serviced Graham’s business between October 1995 to at least January 1996 see E 46-a.

Page 133 of the same Hansard records confirms Senator Alston asking AUSTEL’s Robin Davey, in relation to Telstra’s Service Verification Testing Process:

“Are you developing indicative performance standards to ensure that carriers provide an adequate phone service?”

and Mr Davey replying:  “

Yes, indeed. In the context of the COT Cases we are working specifically to get an agreement on a standard upon which we can sign off that the complaints, if they settle with Telecom, are receiving an adequate standard of telephone service at the time.” When Senator Alston then asked: “Will that be backed up by direction?” Mr Davey responded:  “If necessary, yes.”

How are these issues connected to The Australian Crimes ACT 1914?

1.      The second paragraph at the start of this BCI issue reports that Cliff Mathieson either couldn’t or wouldn’t discuss with Alan Smith what he knew in relation to AUSTEL being aware that Telstra was using documents that Telstra knew were flawed, in their defence of a legal process facilitated by the Government. Mr Mathieson’s reluctance to continue this conversation with Alan suggests that the Crimes Act 1914 prohibited Mr Mathieson, a public servant at the time, from commenting on this matter, meaning that the Crimes Act was used, unethically, to shield Telstra from being sued once AUSTEL had discovered that Telstra had falsified the Cape Bridgewater SVT report and used flawed BCI test results during the COT arbitrations.

2.      Pages 16, 17, 18 and 38 from Exhibit 45 (below) record proof, in AUSTEL’s own draft report, that, during Graham’s Federal Court Proceedings, Telstra knowingly deceived Graham regarding the Flexitel Telephone System that Telstra sold him but, at the time, this report was provided for comment to Telstra only, (and not to Graham), even though AUSTEL knew that Graham was in arbitration regarding the very same issues.

3.      On 11th January 1994, Telstra’s Steve Black wrote to the then-TIO, Warwick Smith (see Exhibit 17-c) who was, at the time, also the administrator of the COT arbitration process, noting that:

“I also wish to confirm to you my previous advice regarding arrangements made with AUSTEL for the release of documents obtained from Telecom to the four customers currently proposed for the Fast Track arbitration process: Information obtained from Telecom, in the course of AUSTEL’s regulatory functions, and relevant to any parties involved in a formal arbitration process with Telecom under the control of the Telecommunications Industry Ombudsman (TIO) will only be released after consultation with the TIO and Telecom.”

In other words, the Australian Crimes Act 1914 meant that AUSTEL and/or AUSTEL employees could be charged if they disclosed to any of the COT claimants any adverse information regarding Telstra that AUSTEL uncovered during their normal regulatory duties and this was perhaps why Mr Mathieson told both Graham and Alan that he was not allowed to discuss AUSTEL / Telstra issues with them.  This also means that any Government employee who knew anything adverse about Telstra / COT issues was bound by the Crimes Act 1914 to withhold that information from the claimants.

One example of Government officials and/or AUSTEL public servants withholding their knowledge of Telstra’s illegal acts carried out towards fellow Australians during the COT respective arbitration comes in a form of a letter dated 13th October 1994 see E50-a below. This AUSTEL FOI document folio 94/0269-05 (22) is a letter originally sent by a Telstra whistleblower (name deleted) to Parliament House Canberra, ACT 2600, and was received by the Office of the Hon Michael Lee, MP Minister for Communications.  This letter makes allegations against Steve Black and Rod Pollock, as the two Telstra executives who were involved in altering and removing information on discovery documents requested by the COT claimants under FOI.

This letter under the heading “Concerns and issues”, this document states:

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

2. There are three main areas which Steve Black has sought to cover up the true facts of disclosure of customer information.  Particularly he has sought to cover up ‘broadcasting’ of the customer’s private information.”

  • Remove or change clear information on the position of liability
  • Diminish the level of compensation payable to COT customers
  • Dismissive of breaches in relation to matters regarding customer privacy.”

In other words, the Crimes Act 1914 meant that AUSTEL and/or AUSTEL employees could not disclose their knowledge to the COT claimants the existence of this letter.

Please note: someone has added a hand-written comment on page one, pointing to Rod Pollock’s name and noting:

“Warwick Smith has been critical of Pollock on same issue.”

It should be noted that on the 16th May 1994, Alan Smith left irrefutable evidence with Sue Harlow (Deputy TIO) for her to pass on to Warwick Smith, together with his statutory declaration showing that he had also named Rod Pollock, as one of the Telstra employee’s who had removed information on requested documents and/or had not provided the correct documentation that should have accompanied existing received FOI documents E 50-b and E 50-c.  It is also important to point out that Sue Harlow when employed by AUSTEL after this incident while she was writing to Senator Alston on behalf of AUSTEL concerning both the TIO and AUSTEL’s concerns that Telstra was not participating in the arbitrations in an appropriate manner as they had previously advised AUSTEL they would (so as to avoid a Senate investigation) Mr Harlow made no mention of her knowledge that Telstra had altered information on requested FOI documents in an attempt to minimise their liability at the costs to the COT Cases claims. Had the Crimes Act of 1914 not been in existence at the time Sue Harlow was writing to Senator Alston see E43 concerning the COT FTAP process Ms Harlow or for that matter, other executives from AUSTEL may have found it appropriate to advise Senator Alston in 1996, that Telstra had acted unlawfully (outside of the law) towards the COT Cases and in doing so, the process had not afforded them natural justice.

It is important to understand that, before Alan Smith and Graham Schorer signed the Arbitration agreement on 21st April 1994, Warwick Smith (TIO) already had both the Coopers & Lybrand and AUSTEL COT reports.  The AUSTEL report in particular explained the importance of the SVT process, which had been implemented by AUSTEL in response to recommendations in the Coopers report, to ensure that the phone services of any Difficult Network Fault (DNF) customers were operating to AUSTEL’s specified standards.

Important promises given to the COT Cases by AUSTEL and Telstra before they signed the FTAP that were not adhered to by Telstra. Has the provisions contained in the Crimes Act of 1914, been the reason why AUSTEL has been powerless to comment on Telstra’s unlawful conduct of submitting known deficient SVT defence documents? Does the Crimes Act of 1914 have precedent over any public servant disclosing their knowledge that a Government Owned Corporation has committed a criminal offence over a fellow Australia citizen? When Mr Rumsewicz’s report (see page 12 below) E28 indicated that Telstra’s SVT process had not necessarily been accurate noting: “the statistical test being applied to the collected data is inappropriate”, should Telstra have been allowed to use this collected data to support their COT arbitration defence?

It has been established below in E37-d that AUSTEL allowed Telstra to limit their mandatory parameter performance testing standards so that Telstra could meet their licence obligations and in doing so disadvantage some of the Cot claimants who had already signed for arbitration. It has also been established see E 23-a, to 23-f that regardless of Telstra deficient Service Verification Testing to some COT Cases businesses AUSTEL turned a blind eye and allowed Telstra to use these deficient results to support their arbitration defence.

On 20th January 1994 AUSTEL’s Cliff Mathieson Specialist Advisor Networks and Michael Elswood, Manager of International Standards Section wrote to Telstra’s General Manger, Network Operations concerning the Service Verification Tests noting:

“Where test results do not meet the essential outcome, remedial action should be taken and the relevant tests repeated to confirm correct network operation.”  E23-k

Page 89, 90, 91 and 92 at point 5.18, 5.29 and 5.32 of the 13th April 1994 AUSTEL COT Cases Report see E51 states:

“…Mr Smith was the first of the original COT Cases to reach an initial ‘settlement with Telecom. It is understood that he: identified the type of faults which his business had experienced. Mr Smith has informed AUSTEL that his major concern and stipulated condition at the time of ‘settlement’ was that his service should operate, and continue to operate, at normal standards”.

“The fifth of the original COT Cases, Mr Schorer, had particular concerns about Telecom’s limited liability and the impact that the limitations was likely to have on any claim he might make for compensation arising from an inadequate telephone service.  

“The fact that faults continued to impact upon the businesses in the period following the settlement shows a weakness in the procedures employed. That is a standard of service should have been established and signed off  by each party. It is a necessary procedure of which all parties are now fully conscious and is dealt with elsewhere in this report. Its omission as far as the initial ‘settlement’ of the original COT Cases  were concerned meant that there was continued dissatisfaction with the service provided without any steps being taken to rectify it. This inevitably led to a dissatisfaction with the initial ‘settlement’ and to further demands for compensation. To avoid this sort of problem in the future, AUSTEL is, in consultation with Telecom, developing –

  • a standard of service against which telecom’s performance may be effectively measured;
  • a relevant service quality verification test.” E51

On 27th April 1994, Telstra’s Steve Black wrote to Robin Davey Chairman of AUSTEL noting:

“Attached for your information, an updated draft of the standard Verification Test for use in the Telecom’s Public Switched Telephone Network. Once agreement has been reached of these Verification Tests, Telecom will be in a position to commence the testing of the services associated with COT customers, and ensure they meet the agreed requirements for a satisfactory service.”  E52

AUSTEL: July 1994: Recommendation 41:

“Telecom indicated in a recent briefing that if the SVT indicate an unacceptable level of service then the required replacement of network equipment will be undertaken to bring that service to an acceptable standard.”E53

AUSTEL: 12 August 1994: Recommendation 22:

“At an appropriate time AUSTEL will be requesting a sample of reports provided to DNF customers to ensure that the process is being successfully implemented. E54

AUSTEL:  12 August 1984: Recommendation 25:

“AUSTEL notes that DNF customers have characteristically reported recurring faults over extended periods of time. Clarification will be required of the definition of “service repairs” when fault recurs after initially having been determined as “repaired.” E55

AUSTEL: 12 August 1994: Recommendation 26:

“Each of the telephone services of the DNF customers will also be scheduled for Service Verification Testing to objectively establish their current level of service”.  E56

23 Sep 92: Page 84 from the final April 1994 AUSTEL COT Cases Report notes at point 5.6 that:

“Given the extent of testing and monitoring which had taken place and Telecom’s failure to identify the cause of the faults over a period of years, AUSTEL supported the original COT Cases in their stance.” Point 5.7 notes: “Argument on the general theme continued. By letter dated 23 September 1992, Telecom’s Group Managing Director, Commercial and Consumer, informed Mr Schorer as spokesperson for the original COT Cases“The key problem is that discussion on possible settlement cannot proceed until the reported faults are positively identified and the performance of your members’ services is agreed to be normal. As I explained at our meeting, we cannot move to settlement discussions or arbitration while we are unable to identify faults which are affecting these services. At this point I have no evidence that any of the exchanges to which your members are attached are the cause of problems outside normal performance standards. Until we have an understanding of these continuing and possibly unique faults, we have no basis for negotiation settlement.” see Exhibit 1 also E1.

20 Dec 93: Four weeks after Graham Schorer and Alan Smith had signed the Fast Track Settlement proposal on 23rd November 1993 Telstra was concerned that some of the exchanges that serviced the COT Cases would not meet the regulatory required conditions contained in their telecommunication licence see E2 Telstra internal email (FOI document folio A00354) notes:

“I understand there is a new tariff filing to be lodged today with new performance parameters one of which commits to 98% call completion at the individual customer level. Given my experience with customer disputes and the recent BCI study, this is a cause for concern. We will not meet this figure in many exchanges around Australia particularly in country areas.

As shown below in a further Telstra internal email FOI folio R04205 see the then acting Chairman of AUSTEL Bob Horton (ex-Telstra employee) allowed Telstra to minimise their mandatory parameters testing see E37-d which also notes:

“The powers to set mandatory performance standards that AUSTEL has been given could well be used in some sort of regulatory outcome from AUSTELL’s current COT case investigation.” 

It has clearly been shown below that regardless of AUSTEL warning Telstra’s on 11th October and 16th November 1994 that their Service Verification Testing did not meet the required regulatory outcome Telstra still submitted (under oath in a sworn statements) to the COT arbitrator that Telstra achieved a success rate of 99.8% even though NO SVT (incoming test calls) were generated to the business which was under investigation by the arbitrator see E23- e, E23-f and E23-g below.

18 Jan 94: Dr Hughes (arbitrator) advises Graham Schorer that the TIO has provided him with a document called Telstra Corporation Limited – Fast Track Proposed Rules of Arbitration.”E3-a

On 3rd February 1994 Dr Hughes writes to Graham Schorer, enclosing a copy of the “Fast Track Arbitration Procedure” that Dr Hughes has drafted with Minter Ellison. E3-b

3 to 17 Feb 94: Between these two dates, Dr Hughes advises Graham Schorer about a number of changes in the arbitration agreement.  Graham is reluctantly to accept the changes in the agreement still believing he will not to abandon the already-signed Settlement Proposal. On 3rd February Dr Hughes writes to Graham Schorer, enclosing a copy of the “Fast Track Arbitration Procedure” FTAP that Dr Hughes has alleged was drafted in consultation with Minter Ellison, the TIO-appointed Special Counsel.

PLEASE NOTE: On 18th October 1998, the then TIO John Pinnock provided Ms Pauline Moore (under Confidentiality) evidence confirming that the FTAP Agreement provided by Dr Hughes to Graham Schorer used in the FTAP had in fact been drafted by Telstra (the defendants) not by Dr Hughes or Minter Ellison. E3

17th February 1994:  Telstra’s Steve Black writes to Dr Hughes, stating:

“Telecom agrees with the general spirit of our proposal procedure, but disagrees with the specific clause set out below.”

Dr Hughes and Warwick Smith seemed to have forgotten that this wasn’t Telstra’s proposal and nor was it simply kindness by Telstra that had brought the COT claimants to the negotiation table – it was an unwritten agreement that the COT claimants would not push for a Senate inquiry into allegations of misleading and unconscionable conduct by Telstra towards the COT Cases.

At point 1.6 on page 2 in the AUSTEL COT Cases Report AUSTEL states:

“…Until recently, Telecom’s approach to the COT Cases might reasonably have been perceived by the COT Cases as one of indifference. But, more recently, the COT’s persistence, AUSTEL intervention, Ministerial involvement the threat of a Senate inquiry and adverse publicity has resulted in Telecom adopting a more positive, conciliatory approach.

At point 1.18 on page 6 in the AUSTEL COT Cases Report AUSTEL states:

“…When the initial settlements were reached with the original COT Cases, the standard of service then applicable was not objectively established and there is a reason to believe that difficult network faults may have continued to affect their services.”  E4

17 Feb 94: Page 3, of the minutes from the pre-arbitration meeting, confirms Dr Hughes made a commitment to Graham Schorer as spokesperson for COT, that if the COT four claimants went into the arbitration process FTAP:

“…that as arbitrator, he would not make a determination on incomplete information”.

In the case of Alan Smith, Ann Garms and Maureen Gillan Dr Hughes did make a determination on incomplete information.  E5

21 Feb 94: Graham Schorer is provided with a document by Dr Hughes, confirming there still had been no change to clause 10.2.2 of the Fast Track Arbitration Agreement. E6

23 Feb 94: This letter from Mr Black to Dr Hughes, referring to the above fax sent from Mr Black to Dr Hughes on 21st February 1994.  The letter also documents changes to the FTAP but makes no comment on the removal of the words ‘… each of the Claimants claims” from clause 10.2.2. Graham and Alan were not advised that clause 10.2. 2 had been altered.

Please note Steve Black states on page 3 of this letter:

“…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.”

It is important to also note that Graham and Alan believed that the Special Counsel, Ferrier Hodgson Corporate Advisory, and DMR Group Australia would be made accountable for any negligence on their part in relation to the arbitration process.

It is also confirmed for the dates of 19th April 1994, (see below) that Dr Hughes’ office was still of the opinion that the Special Counsel, and the Resource Unit would not be excluded from liability E7-a.

Telstra’s internal email FOI document folio D01166 dated 3rd March 1994 from Steve Black to David Krasnostein, of Telstra’s Legal Directorate, advises that, if Telstra was to walk away from the COT negotiations it could lead to a Senate enquiry.  Mr Black notes:

“My course therefore is to force Gordon Hughes to rule on our preferred rules of arbitration.”E7-b

This document is relevant to E-7a because exhibit 7-a (i.e. Telstra’s rules of arbitration stated that the Special Counsel, and the Resource Unit would not be excluded from liability. The same agreement that Telstra’s Steve Black was trying to force Dr Hughes to sign. In other words, had Graham Schorer and Alan Smith, signed Telstra’s rules of arbitration on and around 3rd March 1994, they would have signed the agreement that had not been altered at this point of time.

22 Mar 94: Dr Hughes, Steve Black, Simon Chalmers Telstra Lawyer David Krasnostein, Peter Bartlett Warwick Smith and Jenny Henright TIO Secretary meet in private to discuss the FTAP process. Please note: there was no member of COT present at this meeting. Telstra’s minutes from this meeting confirms their understanding that Warwick Smith stated

“that he would not endorse the rules as fair unless clause 10.2.2 repeated clause 2(f) of the Fast Track Settlement Proposal”.

The words “each of the Claimants claims” was removed see point   below from the original copied FTAP rules given to Graham see point 8 above, which then in return didn’t also repeat clause 2(f) of the FTSP E8-a

  1. When was the wording “each of the Claimants claims” removed from the FTAP rules which we signed 21st April 1994 see point 10 below, believing them to be the same FTAP rules we first agreed to 21st February and 17 March 1994 see point 6 & 9 above?
  2. When was Warwick Smith, advised of the removal of the wording “each of the Claimants claims” from the FTAP rules which in return rendered the agreement different to the rules he would not have endorsed had he been aware of these changes?
  3. Has Warwick Smith ever been advised of this removal?
  4. Is an arbitrator allowed to meet with the defendants and their lawyers without the claimants being present?

22 Mar 94: This is a letter dated 22nd March 1994, which Peter Bartlett faxed, with attachments, to Graham.  This letter, headed Fast Track Settlement Proposal notes:

“Attached are the comments on the Telecom draft I delivered to Gordon Hughes on Friday 18 March.  Clearly a number of amendments suggested by Telecom are unacceptable.  If Gordon can receive your comments on the Telecom draft, he can form an opinion as to what, in his view, is fair and reasonable.” E8-b

On page four of this letter Mr Bartlett goes on to say, regarding Clause 10.2.2:

“This is potentially the most difficult clause.  Clause 2(f) of the FTSP provides: “… that in conducting the review the assessor will make a finding on reasonable grounds as to the causal link between each of the COT Cases claims and alleged faults or problems in his or her telephone service.”

Clause 10.2.2 of the Minter Ellison procedure provides that: “… the Arbitrator will make a finding on reasonable grounds as to the causal link between the claimant’s claims and the alleged faults or problems with the relevant telephone service.”

Clause 10.2.2 of the Telecom draft provides that:

“… the Arbitrator will make a finding as to the causal link between the alleged service difficulties, problems and faults in the provision to the claimant of telecommunication services.”

Telecom has deleted “on reasonable grounds” from the first line.  Those words come from clause 2(f).”

Whether the words “… each of the Claimants claims” were left out of clause 10.2.2 deliberately or by mistake, it is clear that clause 10.2.2 was still under discussion on 22nd March 1994 and, because Mr Bartlett has not referred to this part of clause 10.2.2 being deleted, we must assume that … each of the Claimants claims” was still included in the agreement at this point.  On page 8 of this letter however, Mr Bartlett does refer to clauses 24, 25 and 26 as still being under discussion.

When Dr Hughes wrote to Graham on 31st March 1994 (see E9-a below), nine days after Mr Bartlett, he simply noted:

“I am enclosing the latest draft of the Fast Track Arbitration Procedure which has been forwarded to me today by Messrs Minter Ellison Morris Fletcher…”

He does not make any reference to changes in clauses 24, 25 and 26, as can be seen from that document all three clauses were still intact, although the wording: “each of the Claimants claims’ had been removed without advising the COT Cases.

To summarise:

  1. Peter Bartlett writes to Graham on 22nd March 1994, suggesting that clauses 24, 25 and 26 need further discussion.
  2. Dr Hughes writes to Graham on 31st March 1994, attaching the agreement, without any mention of any alterations to clauses 24, 25 and 26, or that the wording “each of the Claimants claims” in clause 10.2.2 had been removed.
  3. Peter Bartlett writes to Ann Garms, attaching the same FTAP agreement that Dr Hughes had sent to Graham, still with no mention of any alterations to clauses 24, 25 and 26, and 10.2.2
  4. Dr Hughes’ secretary, Caroline Friend, faxes to William Hunt and Alan Goldberg the same FTAP agreement that Dr Hughes sent to Graham and Peter Bartlett sent to Ann Garms, again with no mention of any changes to clauses 24, 25, 26 and 10.2.2.
  5. We have previously established that William Hunt used the agreement that was faxed to him by Caroline Friend in discussion with Minter Ellison on 20th April 1994 (the day after he received it) and that there is no record of either Ann Garms, Graham or Alan agreeing to the removal of,or alterations to, clauses 24, 25, 26 and 10.2.2.
  6. The changes that were done secretly, without the claimants’ knowledge or consent, appear to have been done with the full knowledge of those who benefited from these deletions, Ferrier Hodgson Corporate Advisory and the Special Council, Minter Ellison.
  7. This cover fax sheet dated 22nd June 1994 from the TIO office to AUSTEL see E8-c proves that the $250,000.00 liability clause which had been secretly removed from both Graham and Alan’s arbitration agreements see point 1 to 6 above, was then re-inserted into this document (the arbitration agreements) for the following twelve COT claimants.
  8. These three letters, all dated 29th December 2008 see E8-d, confirm that Dr Hughes (the COT arbitrator), Peter Bartlett (Legal Counsel for the COT arbitrations), and Chris Chapman (Chairman of ACMA) were all told about the secret alterations that had been made to the arbitration agreement, but none of the claimants were given that same information.  Mr Chapman has still not explained why the Government Regulator allowed the liability clause to be removed from Graham and Alan’s agreements but re-inserted for the other COT claimants, thereby discriminating against Graham and Alan.  It does seem, however, that this discrimination is connected in some way to AUSTEL’s other acts of discrimination and bias, including the SVT issues discussed below, further supporting our claim that there is a need for an investigation into why the Regulator and some of their employees have been afraid to speak out regarding COT arbitration issues.

Points 7 and 8 should be assessed in relation to other information (see below), which shows that AUSTEL did not protect the rights of the COT claimants during the AUSTEL-facilitated arbitration process. Exhibit 8-c above, which includes a letter to Peter Bartlett, refers to clause 11.2 on page six of the Special Rules of Arbitration for the second group of twelve COT claimants, proving that AUSTEL, Peter Bartlett and the TIO all knew that the $250,000.00 liability cap on claims against the TIO-appointed resource unit had been re-inserted into the agreement for the twelve COT claimants AND knew that the same liability clauses had been secretly removed from the agreement used for Graham Scherer and Alan Smith’s arbitration, to their severe determent.

31 Mar 94: Dr Hughes faxes both Graham Scherer the latest draft of the FTAP agreement E9.107 Apr 94

Mr Black’s letter to David Krasnostein : ”I have told Mr Bartlett that the only basis on which Telecom would attend a meeting is to formally sign the rules – no further discussion or negotiation to be entered into, …” suggests that perhaps Bartlett had expressed a view that the FTAP rules were not fair.

Comment:

Could it be that both Peter Bartlett and Dr Hughes knew that clause 10.2.2 had been altered to favour Telstra’s defence?

It appears Mr Black was concerned at Graham pushing Dr Hughes to read the AUSTEL report because it states quite clearly that our matters were to be heard under a review/settlement process, and that the remaining COT claimants would have their matters heard in arbitration.  If Dr Hughes had read the AUSTEL report, he would have known that our matters were never intended to go before arbitration.

Please note: The AUSTEL COT Report referred to in this memo by Mr Black, was soon to become a public document. Alan Smith and Graham Schorer can only assume that the reason Telstra was “seriously” objecting to Dr Hughes seeing this report is that it refers only that the COT four were to be assessed under the AUSTEL facilitated ‘Fast Track Settlement Proposal’, with the other COT type complainants to be implemented into the yet to be devised ‘Special TIO Arbitration Agreement’. E10

12 Apr 94: Dr Hughes writes to Peter Bartlett noting:

“…Further in relation to clauses 25 and 26, both Ferrier Hodgson Corporate Advisory and DMR Inc are concerned about their potential liability. As the clauses presently read, they would be liable to a maximum of $250.000.00 per claim. This is likely to significantly exceed their professional fees in relation to each claim. Ferrier Hodgson’s preferred (and also the preference of DMR) would be a total exclusion of liability but, failing that, they would accept a lower cap more commensurate with their anticipated fees.

I appreciate that one claimant has already executed the agreement in its currant form. The others will no doubt be pressed to do likewise over the next few days. I further appreciate you will be reluctant to introduce additional changes to the draft procedure at this delicate stage of negotiations but it of course fundamental that account be taken of the concerns raised by members of the Resource Unit. Perhaps the agreement should be executed in the current form and then agreement sought from the parties to vary the terms to take into account any proposals by Ferrier Hodgson or DMR which you agree are reasonable.”

PLEASE NOTE: There is no reference in this letter regarding the concerns or the rights of the claimants. E11

1213 Apr 94This copy of the Fast Track Arbitration Procedure agreement with clauses 24, 25, and 26 intact, was faxed from Peter Bartlett of Minter Ellison to Ann Garms the day after Dr Hughes letter – Please note: Mr Bartlett made NO reference in the covering facsimile to Ms Garms that this copy of the FTAP agreement was only a draft and that clauses 24, 25 and 26 would be removed before she signed the agreement. E12

19 Apr 94: When Caroline Friend, Dr Hughes’ secretary, faxed a copy of the arbitration agreement to William Hunt and Mr Goldberg, Ms Friend noted, on the fax cover sheets:

“Further to my telephone discussion with Mr Graham Schorer of today’s date, at his request, I attach for your attention, a copy of the “Fast Track” Arbitration Procedure of 31st March 1994.” (GS 186-b) 

It has now been established (see above) that, after these faxes had been sent, someone removed clauses 25 and 26 from the version of the document including altering clause 24 that was later presented to Graham Schorer and Alan Smith, without notifying Mr Hunt, Mr Goldberg, Graham or Alan of those alterations when they signed the agreement on 21st April 1994.

On the 19th and on the 20th April 1994, in the mid-afternoon of each day, Graham Schorer and Alan Smith discussed with William Hunt whether or not Graham and Alan should sign the FTAP.  Mr Hunt provides the copy of the agreement that he had received, via fax, from Ms Friend on 19th April 1994 (see point 9, above).  Graham was adamant that he did not want to sign the agreement because it was too legalistic and did not mirror the original FTSP agreement, but Mr Hunt suggested that it was probably the best they could hope for under the then-present circumstances.  Alan remembers that Mr Hunt also noted that, if they didn’t sign the agreement then, the process would be delayed even more than it had already been delayed and ‘who knows where you might end up’.  Alan and Graham believe strongly that, if Mr Hunt had known that clauses 25 and 26 were to be secretly removed including the alterations to clause 24, without their knowledge or consent, and that removal would relieve FHCA, DMR (Australia) and the TIO’s Special Counsel of any liability for negligence, conscious or otherwise, Mr Hunt would never have advised that Graham and Alan should sign the agreement.  They also believe that Mr Goldberg would have strongly gone against Graham and Alan signing the agreement had he known it was to be secretly altered after he had provided legal advice on it, before the agreement was presented to Graham and Alan for their signatures. E13

21 Apr 94: Graham Schorer and Alan Smith abandon the already-signed Settlement Proposal and accept that the Fast Track Arbitration Agreement they signed was the same agreement they had been shown on 31st March, 13th April and 19th April 1994. Please note: no one advised Graham Schorer of Alan Smith to the alterations to clause 10.2.2, 24, 25 and 26, when they signed the agreement.1525 May 94

Graham Schorer writes to Dr Hughes noting:

“…Due to circumstances and events beyond the direct and/or indirect control of Graham Schorer plus other related claimants, companies etc, I am formally applying for an extension of time on behalf of Graham Schorer, plus other related claimants, companies etc, pursuant to clause 7.1 in the Fast Track Arbitration Procedure etc etc. The reason for this request are as follows:-

“…A substantial burglary in Golden’s premises on the 4 March, 1994 and the theft of vital equipment and records.

One of two-word processors with its laser printer and back up disks containing Golden’s sales quotas, customer agreements, facsimiles and all the correspondence facsimiles and most of the documentation relating to telephone service difficulties, problems and faults in relating to Graham’s present claim.”

Please note:

On the 4th March 1994, approximately one and a half hours after Golden Messenger’s burglary, another COT claimants business, Dawson Pest Control, was also burgled. Mr Dawson later remarked that he found strange that the burglars only stole business records and Telstra related information. On the 11th October 1994, during Alan Smith’s (taped) arbitration oral hearing he informed the arbitrator that the Cape Bridgewater Holiday Camp booking information and banking statements disappeared from his office. Telstra FOI documents provided to the Australian Federal Police in 1994, by Alan, confirmed that Telstra was able to document the dates when Alan would be in Melbourne, (away from his business), in one instance Telstra documented an intended Melbourne trip weeks before the intended trip. E15

21 Jun 94: AUSTEL’s John MacMahon writes to Steve Black stating:

“…AUSTEL is continuing to receive complaints as to the quality of service from a number of the COT Cases

Mr Smith at Cape Bridgewater continues to express concern about the ability to receive and send facsimiles.

Mr Schorer at North Melbourne continues to claim that customers are reporting an inability to make a successful phone call to his business.

In the ‘Implementation of the Recommendations of the COT Cases Report’ (see following link >  Telstra’s Falsified SVT Report), the report states:

“The role of the Service Verification Tests (SVT) in the determination of the adequacy of a DNF service is that the SVT clearly have to be conducted well before 30 May 1995 to meet the requirement of recommendation 25. 

For example, if the SVT indicate an unacceptable level of service then a considerable amount of time may be required to rectify the service in question, particularly if major replacement of exchange equipment is required to bring the service to the accepted standard.”

In regards to the adequacy of the telephone service provided to Alan Smith and Graham Schorer by Telstra, it is apparent from the enclosed information (see above), that the service was less than adequate.  E16

11 Jul 94: Telstra’s Steve Black writes to Warwick Smith (TIO) stating:

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

The statement in Mr Black’s letter: “… if the resource unit forms the view that this information should be provided to the arbitrator,” confirms that both Warwick Smith and Mr Black, are fully aware that the TIO-appointed Resource Unit Ferrier Hodgson Corporate Advisory (FHCA) had also been secretly assigned to vet most if not all the arbitration procedural documents on route to Dr Hughes. In other words, if FHCA decided that a particular document was not relevant to the arbitration process, it would not be passed on to Dr Hughes, or the other parties E17-a

On page 5 of the Commercial Arbitration Act 1984, under Part 11 – Appointment of Arbitrators and Umpires it clearly states: (6) Presumption of a single arbitrator

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

(a)          the agreement otherwise provides; or

(b)          the parties otherwise agree in writing.

The Fast Track Arbitration Procedure FTAP (Agreement) signed by Graham and Alan, 21st April 1994, mentions only one arbitrator. There is likewise no written agreement in existence seen by Alan or Graham that allows a second arbitrator to determine what information the first arbitrator will see E17-b

12 Jul 94: Telstra’s Paul Rumble writes to Graham Schorer noting: “…I confirm my understanding that you wished to make an informed decision as to which documents were required and that you might take a few days in order to make an informed decision etc etc.”

18 Aug 94: Graham Schorer’s letter to Dr Hughes, arbitrator states: “…I am writing to you to confirm what progress has been made to date regarding documents being received under three different FOI applications. Documents relating to Graham Schorer and Golden FOI applications, consist of many duplicate copies and does not represent all of the documents applied for under the two F.O.I. applications, is being the 24 November 1993 and 21 April 1994. E18

19 Aug 94 Graham Schorer writes to Dr Hughes:  “I have enclosed a facsimile from Telecom, received at my premises on 26 July 1994, at 11.41 pm.  This facsimile states that Telecom has forwarded all of the documents that fall within my FOI application to the T.I.O. for forwarding to the Arbitrator. E19

Would the Arbitrator please advise in writing as to what date the documents were delivered to the Arbitrator’s premises.  Also please advise myself as to what arrangements that I need to comply with for the viewing of the same documents.” E20

11 Aug 94: Dr Hughes writes to Graham Schorer noting:

“…I acknowledge receipt of your facsimile dated 9 August 1994. No documents of the nature which you describe have been delivered to me.

I do not wish to become directly (or indirectly) involved in your FOI application. At the time I cannot ignore the fact that your FOI application is relevant, or may be relevant, to the proper submission of your claim.” E21

7 Sep 94: Dr Hughes writes to Graham Schorer noting:

“…It was never my intention that the submission of your claim be deferred indefinitely pending completion of your FOI claim. I have sought to avoid the costs and inefficiencies involved in a substantial amendment to your claim in the event that a significant amount of material becomes available after the claim is formally submitted.”  E22

Sep 94: 

Exhibit 23-a are two Telstra CCAS data records for the Service Verification Tests conducted at Alan Smith’s business 29th September 1994, confirms Telstra only tested calls going out of Alan Smith’s business and NOT the required regulatory outgoing SVT tests calls.

E23-b- Alan Smith writes to Ted Benjamin, copied to Dr Hughes, AUSTEL and Warwick Smith, confirming Alan’s concerns regarding Peter Gamble’s lack of professional integrity when conducting the SVT testing at the Cape Bridgewater Holiday Camp 29th September, 1994 see point 6 Above.

E23-c Alan Smith’s second letter to Ted Benjamin again discusses Alan’s concerns about the SVT-testing (see E23 b, above) and notes that Alan and his partner would send separate statutory declarations regarding the inappropriate conduct of the SV test process.

E23-d Ted Benjamin Responds to Alan Smith’s letter of the 10th October 1994, in the usual Telstra manner denying Mr Smiths claims.

E23-e AUSTEL’s letter to Peter Gamble confirming Telstra’s SVT (testing) process did NOT meet the regulatory SVT standards agreed to.

E23-f This letter from AUSTEL to Telstra’s Steve Black (copied to Peter Gamble) confirms Telstra’s SVT testing at Alan Smith’s holiday camp did not meet the regulatory standards.

E23-g This witness statement dated 12th December 1994 by Peter Gamble on behalf of Telstra’s arbitration defence of Alan Smith’s claim states the SVT process had met all the regulatory requirements when Peter Gamble knew this had NEVER been the case.

E23-h This statutory declaration by Telstra’s Steve Black dated 12th December 1994, states from his perusal of Telstra’s defence reports (which included the SVT process) were correct in all accounts. This statement was made regardless of Mr Black being aware the Cape Bridgewater SVT process had been deficient.

E23-i Page 4 from Telstra’s Briefing report regarding Telstra’s defence notes:

“Telecom tests are recognised by AUSTEL as an appropriate measure of service performance. Tests undertaken on the Cape Bridgewater Holiday Camp (CBHC) service were successful on all lines.”

Please note: this is the report that Steve Black noted in his statutory declaration that:

“I have reviewed the Report and I am informed be each authors that the Report accurately states the facts stated in the Report.”

This is the same Steve Black who was alerted by AUSTEL on 16th November 1994 (one month previous) that the Cape Bridgewater Holiday Camp (tests) were deficient.

22 Nov 94: Telstra’s Peter Gamble writes to Graham Schorer noting:

“…An opportunity has become available for Telecom to carry out some specialised testing using a new piece of equipment which has only just become available. I am proposing that we use this equipment to carry out some tests on both your PSTN and ISDN services. The second unit will be moved between a number of locations which have been selected by taking note of your previous comments on locations where callers have been reported difficulties in contacting your business. The tests will be conducted by Wayne Parker and Jeff Thompson of Bell Canada International, who will also tabulate the results. The BCI staff will be assisted by two of my staff members, Mr Bruno Tonizzo and Colin Roberts E24-a.  

E 24-b, two of these Telstra SVT technicians Mr Bruno Tonizzo and Collin Roberts mentioned in this document were the same technicians that had been present during the deficient SVT process at Alan’s premises on the 29th September 1994, i.e. Mr Bruno Tonizzo and Colin Robert’s along with Peter Gamble. See page 1 (Smith Case) and Peter Gambles witness statement dated 12th December 1994. Should Telstra have been using the same Telstra technical staff during the pending Golden Messenger SVT process which abandoned the deficient Cape Bridgewater Holiday Camp SVT (tests)? Again, here is further information in support of Graham’s valid reason for demanding Telstra had to connect service lines to call identification to his incoming service lines on the days that Telstra performed their SVT test calls.

E24-c  page 198 from the AUSTEL COT Cases Report, also supports Graham Schorer had valid reason for demanding call line identification when they state that:

8.79. “…Telecom’s conduct has been less than that which might be expected of a model corporate citizen –

    • in insisting on strict proof of a causal link between faults and their effect on a business when its own records are deficient in recording faults.”

8.80.   AUSTEL recommends that –

    • Telecom’s advice to its customers experiencing difficult network faults on the outcome of its monitoring/testing should state the limitations of its monitoring/testing regime.

Telstra certainly didn’t advise Alan Smith and the arbitrator Dr Hughes, about the limitations in their SVT monitoring/testing regime performed on Alan’s services during his arbitration.

PLEASE NOTE:

On pages 3 and 10 in the Michael Rumsewicz report to AUSTEL dated 15th November 1994 when referring the SVT process he notes:

“Customer calling profiles (which provide the basis of the Service Verification Tests test calling pattern) would be more accurate determined through the use, for instance of Telelec / CCS7 equipment.”

The Telelec / CCS7 equipment was supposed to have been used by Bell Canada International (BCI) when they performed their testing to the exchanges that Graham and Alan Smith’s  businesses was connected to. In the case of Alan Smith’s exchange the Telelec / CCS7 equipment couldn’t be used due to the type of exchange at Cape Bridgewater. Yet Telstra still maintain that the BCI Cape Bridgewater report is correct even though the report states that Telelec / CCS7 equipment was used. Mr Rumsewicz report supports proves just how important it was for Graham Schorer to have the right to demand that Telstra connect some type of call line monitoring equipment to his service lines when Telstra performed the SVT process.

28 Nov 94Exhibit 25-a Peter Gamble writes to AUSTEL’s Norm O’Doherty, General Manager Consumer Affairs, in response to AUSTEL’s previous letter on 16th November 1994 in which they questioned the deficiencies in the SVT process at the Cape Bridgewater Holiday Camp. However, this letter appears to be providing SVT information to AUSTEL, without ever having performed a second set of tests at the Cape Bridgewater Holiday Camp regardless of the tests being deficient i.e:-

“…Norm, As agreed at one of our meetings and as confirmed in your letter of 16th November 1994, attached please find the detailed call Delivery Test information for the following customers.

·         Bova – Ralphies Pizza, Mordialoc, Vic

·         Love – Loveys Restaurant, Dixons Creek, Vic

·         Main – Glen Waters Fish Farm, Glenburn Vic

·         Smith – Cape Bridgewater Holiday Camp, Vic

·         Turner – Gourmet Revolution, Moorabbin, Vic

·         Trzcionka – Trzcionka Hairdressing, Glenelg SA

This information is supplied to Austel on a strict Telecom-in-confidence basis for use in their Service Verification Test Review only and not for any other purpose. The information is not to be disclosed to any third party without the prior written consent of Telecom.

The detailed results of the Call Delivery Tests should be read in conjunction with the individual Service Verification Test Reports, which will provide further information on the origins and destinations, together with details of the time period to be used for the call analysis.”

You are already aware, the equipment which carries out the SVT Call Delivery Tests is able to hold the call for the required 120 seconds (as shown on the results sheets), but is unable to confirm that the call has been held past 40 seconds.” Exhibit 25-a 

PLEASE NOTE:

On 13th January 2009, Alan Smith received a collection of FOI documents from ACMA.  These documents show that, at least by 28th November 1994, Telstra and AUSTEL both knew that the SVT data did not record one single incoming test calls being held for the required 120 seconds.  The SVT section of Telstra’s 12th December 1994 defence of Alan’s arbitration claims should therefore have not recorded all the SVT calls as successful, but should instead have recorded the truth – that Telstra’s equipment was not able to substantiate that each test call was held for the required period.

AUSTEL’s final report (April 1994) shows clearly that:

1.           The Service Verification Tests were an integral part of the arbitration process, implemented specifically to determine the reliability of the telephone lines connected to the premises of the COT Difficult Network Fault customers and

2.          AUSTEL and Telstra worked together to design the testing process and equipment.

Correspondence exchanged between AUSTEL and Telstra however also shows that neither party was sure that the end-to-end SVT monitoring equipment was entirely reliable.  Surely AUSTEL, as the communications regulator, should have therefore warned the arbitrator and the claimants about these problems since they knew that Telstra intended to use the SVT data as part of their arbitration defence documents.

Amazingly, it was only six months previous before AUSTEL received this advice from Peter Gamble on 28th November E25-a, about the deficiencies associated with Telstra’s SVT Call Line monitoring equipment, AUSTEL commented at point 8.80 in their April 1994 COT Cases Report that:

AUSTEL recommends that –

    • Telecom’s advice to its customers experiencing difficult network faults on the outcome of its monitoring/testing should state the limitations of its monitoring/testing regime.

It is also shown in Peter Gamble letter to Graham Schorer on 22nd November 1994 E24-a, in an attempt to entice Graham to enter the SVT process, without ever providing him the same advice that six days earlier AUSTEL’s Norm O’Doherty, General Manager Consumer Affairs, informed Telstra’s Steve Black and Peter Gamble by letter see E23-f that the SVT tests carried out at Alan Smith’s business was deficient.

In other words, Peter Gamble and/or Telstra as the defendants in the COT arbitrations, were only prepared to advise the regulator in secret about the known deficiencies in their SVT monitoring equipment but not the claimants, and I again quote from this letter:

“This information is supplied to Austel on a strict Telecom-in-confidence basis for use in their Service Verification Test Review only and not for any other purpose. The information is not to be disclosed to any third party without the prior written consent of Telecom.”

Are we to assume that once again AUSTEL’s were muzzled because of the Public Service Privacy Act contained in the Australian Crimes Act 1914, which prohibited AUSTEL from disclosing: “to any third party without prior written consent of Telecom” that they were relying on false tests results as arbitration defence material?

13 Dec 94: Peter Gamble writes to AUSTEL’s Norm O’Doherty in relation to his 16th November letter concerning the deficient SVT tests including only simulating the 1-800-tests calls noting:

“…Thus for bothMr Alan Smith and Mr Garry Dawson, the network equipment utilised for calls to the test 1-800 numbers were the same as that which would have been used for their 008 service. E26

Further in this letter on page 2 at point 4, Mr Gamble notes:

(4)“…In response to requests from customers for more rigorous end-to-end” testing procedure, a more detailed test specification was developed which aimed to generate 100 test calls to a customer’s service from five or six locations.

Two tests have been carried out using this procedure, one on Mr Colin Turner’s service, and one on Mr John Main’s service. However, there have been three key problem areas identified which apply both to the original demonstration tests and the revised procedure. The first has involved obtaining sufficient staff to carry out the test. Two alternative sources have been tried, but neither can be guaranteed on an ongoing basis, which is why the Test Program has not continued.

(5) “…When the Service Verification Test was originally developed it was understood that the NEAT units could hold a call for 120 seconds. However when detailed test schedules were being prepared it was discovered that while the NEAT system could hold a call for 2 minutes, it could not confirm a call hold time beyond the 45 seconds taken to perform the transmission test.

A proposed software modification to NEAT has been discussed with the supplier who initially offered a modification to be available by November 1994. This feature has now apparently, been delayed indefinitely. To meet the SVT requirement a variety of test call generating systems were investigated, but none was able to hold and confirm a test call for the required 2 minutes. Various modifications were considered and some tests carried out but they were unable to provide reliable results.

Telecom is currently concluding negations for the supply of a new

generation of call generating equipment, for which the ability to hold and confirm a call for 120 seconds is mandatory. Further information will be provided as it comes to hand.”

PLEASE NOTE:

This letter was written the day after Peter Gamble submitted his arbitration Witness Statement, attesting to the arbitrator that his SVT Cape Bridgewater Holiday Camp (tests) had met all of the regulators requirements. As a point of interest: the COT Difficult Network Fault customer named by Peter Gamble in this document Smith, Dawson, Turner, Main, and Bova have all complained in a variety of ways concerning the inappropriate way Telstra conducted their respective SVT procedures.

15 Dec 94: Graham writes to Steve Black RE: Proposed Telecom Verification Testing noting:

“…I refer you to our telephone conversation last week regarding this matter and as you recall, my drawing your attention to the Peter Gamble correspondence referring to the statement that there will be further testing conducted by Bell Canada using new American equipment especially designed for such types of testing.

I offered a suggestion that should have been mutually acceptable to both parties, that this type of testing be conducted by DMR, the technical communication resource unit attached to the Fast Track Arbitration Procedure, which you stated would not be appropriate.

During a more recent telephone conversation regarding many other matters, you informed me that Cliff Mathieson would not be available while the Bell Canada people would be still in Australia. I asked the question of you, why would Bell Canada’s presence in Australia be relevant if Cliff Mathieson, on behalf of Austel, was to conduct the tests. E 27

I have finally managed to make telephone contact with Cliff Mathieson yesterday  

to discuss this matter with him in person and the outcome was as listed below:-

a)      He personally had no difficulty being involved in such testing program;

b)      Telecom would have to formally request of Austel for Cliff      Mathieson’s involvement in such testing; during a telephone conversation between you and I earlier this week, I informed you:-

c)      I had not been able to make contact with Cliff Mathieson;

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

e)      I required in writing from Telecom the results and reason’s for such tests were abandoned.

On 15th December 1994, Mr M Rumsewicz submitted a report titled Report on Telecom Australia’s Verification Tests (G.001), which he had prepared on behalf of the Government Regulator, AUSTEL E28.  This report was based entirely on documentation provided by Telstra but still, on pages 3, 10 and 13 E23-i of this report, it shows that Mr Rumsewicz noted his concerns surrounding the SVT process. Therefore, AUSTEL should have notified either the TIO (administrator to the COT arbitrations) or the arbitrator to the concerns Mr Rumsewicz had in regards to the correctness of the SVT data being collected by Telstra. It is quite from the points raised below, that Telstra’s should not have used the results of their Service Verification Tests (SVT) in a legal process (the COT arbitrations) because those results were not conclusive.  E23-a (above) confirms that if the CCAS data regarding Telstra’s SV testing at Alan Smith’s business had been provided to Mr Rumsewicz in regard to even one single incident, then Mr Rumsewicz would have had to come to the conclusion that Telstra had ‘fudged’ the Cape Bridgewater Holiday Camp testing.

On page 10 of his report, Mr Rumsewicz notes:

“Telecom Australia, as part of document G.001, applies a standard technique based on hypothesis testing. Hypothesis testing is used to determine whether there is sufficient evidence to reject one hypothesis (known as null hypothesis) in favour of another (known as the alternative hypothesis). If insufficient evidence exists to reject the null hypothesis, the nul hypothesis is accepted. It is critical to note this is not the same as saying that the null hypothesis has been verified.” and on page 13 he reports:“…We believe that given the stated purpose of the Service Verification Tests supplied in the telecom Australia Customer Fault Procedures document (000 8410 and that of the AUSTEL Cot Cases Report, the statistical test being applied to the collected data is inappropriate. We believe the alternative test described above is more suitable and, in addition, promotes customer confidence in the test procedure and analysis. We believe that the analysis of collected data should be expanded to include an examination of call failures broken down by originating exchange, time of day and type of failure. In the event that correlations in the failures are found, further investigations, as appropriate, should be undertaken.

These comments indicate how AUSTEL became a party to Telstra’s deceit when they wrote to Minister Lee MP, then the Minister for Communications, on 2nd February 1995, supporting both Mr Rumsewicz’s report and the COT SVT process.

On 3rd October 2008, in Melbourne, Alan Smith attended an Administrative Appeals Tribunal Hearing into the Australian Communication Media Authority (ACMA) their refusal to provide Alan with many FOI documents related to his arbitration.  Mr Friedman, the AAT member hearing Alan’s case, found that AUSTEL had been involved in allowing Mr Rumsewicz’s report to wrongly provide a clean bill of health for the SVT process, and noted that he didn’t find Alan’s claims to be either ‘frivolous or vexatious’.  Even though Mr Friedman’s findings were forwarded to Mr Chapman, the current Chairman of ACMA, Mr Chapman has still not come forward, on behalf of the regulator (previously called AUSTEL, now called ACMA), to make any attempt to rectify the sins of his predecessors.

The issue of the Government Regulator and the Regulator’s employees withholding from the COT FTAP arbitration process what they knew about Telstra’s unlawful conduct during the arbitration process is yet another legacy of the Australian Crimes Act 1914 and another argument for the abolition of the Act.

IMPORTANT ISSUE

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

PLEASE NOTE 1: Garry Dawson is another of the COT DNF customers used by Mr Rumsewicz to determine the validity of Telstra’s Service Verification Testing process, yet Ted Benjamin’s letter to Graham Schorer admits see E29 that Telstra and Bell Canada International had to abandon the SVT process at Garry Dawson’s premises because of equipment failure.

Mr Benjamin’s letter to Graham Schorer, was in response to Graham’s previous letter to Steve Black on 15th December 1994, see E27 above, which notes on page 2 that:

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

PLEASE NOTE 2: Mr Rumsewicz’s report is dated 15th December 1994. Telstra and Bell Canada International abandoned the Dawson Service Verification Tests six days earlier, on 9th December. In his letter to Graham Schorer refer E29, Telstra’s Ted Benjamin admits that the Dawson tests were abandoned but does not refer to any repeat testing being undertaken between the 9th December (when the first test was abandoned) and 15th (when Mr Rumsewicz completed his report).  The 10th and 11th December – the first two days after the abandonment of the Dawson SVT process – were a Saturday and a Sunday, not normal working days, so it would have been inappropriate to run the testing on those days.  These leaves only three days – the 12th to the 14th – for Telstra and Bell Canada to locate SVT equipment that was compatible, carry out a second round of testing, and collate all the testing information from complex data, in time to provide it to Mr Rumsewicz, so he could include the test results in his report, which was submitted on 15th December.

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

PLEASE NOTE 3: Exhibit 29-a see below is a letter from Colin Turner, dated 27th October 1994, to Telstra’s Ted Benjamin noting:

“…Service Verification Testing: “…You keep referring to the deed”. You should have thought of that and tabled the G.001 documents to the Arbitrator instead of keeping them secret. Don’t give me any rubbish about agreement with Austel as they would have agreed to Telecom’s recommendation. I was NOT consulted over the issue and any “in club” agreements would be designed to enhance Telecom’s position. I complained about faulty cables for years. I complained about faults for years. I complained about service for years. Telecom then used abhorrent standover tactics which frightened me beyond belief to settle. As soon as that settlement took place Telecom came and replaced old water damaged cables in my street, and then you have the gall to want to do tests AFTER you have probably fixed some of the faults.”

While Mr Turner’s letter does not actually state that the SVT process conducted at his premises was flawed, he has conveyed to a number of fellow COT members ‘words to the effect’ the SVT process was a farce.

Attached as Exhibit 7 Relevant Information (F/V) file is a letter dated 26th September 1995, from Telstra’s Peter Gamble to AUSTEL’s Cliff Mathieson noting:

“The initial request to all customers to allow Service Verification Test to be carried out are made verbally. During these discussions the need to determine an incoming call profile is explained and as much information as the customer is able to provide is noted. Following these discussions, but prior to the carrying out of the Customer Specific Line tests, three customers:

  • Mr G Schorer (Golden Messenger), North Melbourne, Vic,
  • M C Turner (The Gourmet Revolution) Cheltenham, Vic,Mr M Wiegman (Michael Wiegmann Drafting Services), Jindabyne South NSW.
  • withdrew their permission for the Customer Specific Line tests to be carried out.”

QUESTION

If, as this letter states, Mr Turner did refuse his permission for the Customer Specific Line tests to be carried out at his business, then whose raw data did Telstra provide Mr Rumsewicz (10 months previously) as having been the data from the Customer Specific Line tests conducted at Mr Turner’s premises?

It should also be noted in Graham Schorer’s SVT letter to Steve Black refer E 27 he notes:

“…I pointed out to you that I was aware that this equipment had run into problems when trying to run tests on Ralph Bova service, which you responded that you were not aware of.”

The conclusion to the issue surrounding the SVT seven DNF customers:

Of the seven COT SVT cases named by Dr Rumsewicz on page 19 in his report, it is quite clear in the case of Smith and Dawson that their SVT study was definitely flawed and the further SVT test carried out for Bova appears to be possibly flawed also.  So two possibly three flawed assessments from seven studies by Dr Rumsewicz confirms his report is fundamentally flawed. Dr Rumsewicz’s report should therefore never have been discussed in any Government publication as was the case in the AUSTEL third quarterly COT report. The fact that this AUSTEL third quarterly COT Case report was supplied to the COT arbitration process is even worse.

23 Dec 94: Ted Benjamin writes to Graham: RE Proposed Telecom Verification Testing noting:

“…I refer to your letter 15 December (ref 1431) addressed to Mr Black. I note your comments. I advise that Telecom is unable to make comments specifically relating to Gary Dawson’s telephone service. However, in a general sense I can advise that the Bell Canada equipment utilised in the testing was a prototype. Some tests were carried out but, because Bell Canada and Telecom were not satisfied with the performance of the equipment in all respects it was decided not to continue with the tests.

As indicated previously, Telecom wishes to carry out Service Verification Testing on your PSTN and ISDN services. Your co-operation is sought.

We have looked at options as to who is available for the meeting and believe that for technical and historical reasons Mr Gamble is most suitable. He has expertise in Service Verification Testing, and is a highly respected engineer who understands your telephone service.” E 29-a

This is the same Peter Gamble, Telstra’s highly respected engineer who just 11 days previously on 12th December 1994, swore under oath in Telstra’s arbitration defence that his Service Verification Tests had exceeded the required regulators specifications, aware the SVT equipment used couldn’t facilitate the required in-coming Delivery calls.

10 Jan 95: Graham writes to Steve Black in response to Ted Benjamin’s letter 23rd December 1994, RE: Proposed Telecom Verification Testing – In Response to Golden’s Correspondence Dated 15 December 1994 Ref 1431: It is clear from Graham’s letter he sent a clear message to Telstra, his distrust of Peter Gamble see pages 3 to 7.

The above SVT exhibits confirm that Graham had good reason not to trust Mr Gamble or Telstra unless they connected the call line identification equipment during their pending SVT. Graham and Alan Smith’s telephone accounts confirm numerous 0telephone calls to each other were a regular occurrence over this period. Alan remembers on numerous occasions the frustration he conveyed to Graham regarding the deficient BCI and SVT testing process pointing out to Graham that he would be a fool if he went down the same SVT path as he had done without ensuring the transparency of the SVT process. E 30-a

In The following Exhibits 30-b, 40-d, 40-e and 40-f (SVT) show that Alan Smith and Graham Schorer had every reason to doubt Telstra’s credibility when it came to monitoring equipment.

E 30-b  Robin Davey, AUSTEL’s Chairman, wrote to Telstra’s Corporate Secretary Jim Holmes, 7th September 1993 RE:COT Case Monitoring Arrangements noting:

“…I have similar concerns about you seeking AUSTEL’s approval of the monitoring equipment so long after we first asked tests to be done. There are concerns by some of the customers Telecom is to monitor about the effectiveness of the monitoring equipment. These concerns have been inspired, at least in part by comments made by Telecom employees to those customers, and of course, the problem experienced by Mr Smith when testing/monitoring equipment caused additional problems for him. The draft list of conditions for installation of monitoring equipment in the customers’ premises only serve to reinforce my view that your letter is an attempt to have “two bob each way” – if the testing does not favour Telecom you have laid a foundation for claiming that it is due to customer interference.”

E 30-c is page 24 from the first AUSTEL COT Cases Report dated July 1994 which notes under Recommendation: 18

“Telecom acquire equipment suitable for monitoring the services actually received at a customer’s premises (cf: Coopers & Lybrand Recommendation 10 and Bell Canada International’s Rotary Hunting Group Study Recommendation 8.3.

Exhibit 30-d is page 53 from the December 1993, Bell Canada International Rotary Hunting Group Study Recommendation 8.3 which notes:

“On two occasions during the testing process, test equipment failures were experienced (AMERITEC AMIXT and ELMI Smart-10 which required a re-start of testing activities …and …a further recommendation, is to increase the supply of the more sophisticated trouble shooting test equipment such as the Tekelec CCS 7 equipment.”

This is the same Tekelec CCS7 equipment that E30-e and E30-f see Telstra witness statements by David Stockdale (8th December 1994) and Chris Doody (12th December 1994), confirm cannot be utilised at either the Portland exchange or the unmanned Cape Bridgewater RCM. The following statement made in the BCI Rotary Hunting Group Study Recommendation 8.3 “on two occasions during the testing process test equipment failures were experienced,” should be read in conjunction with Alan’s recollection of similar testing equipment failing while Telstra performed the SVT process at his premises.

In Peter Gamble’s letter to AUSTEL 13th December 1994 see E26 he states on page 3:

“When the Service Verification Test was originally developed it was understood that the NEAT units could hold a call for 120 seconds. However when detailed test schedules were being prepared it was discovered that while the NEAT system could hold a call for 2 minutes, it could not confirm a call hold time beyond the 45 seconds taken to perform the transmission test.

A proposed software modification to NEAT has been discussed with the supplier who initially offered a modification to be available by November 1994. This feature has now apparently, been delayed indefinitely”.

Question

If the software modification to the NEAT system was not available in November 1994, then what software did Telstra’s Peter Gamble use 29th September 1994 (10 weeks previous) when he had to abandon the incoming SVT tests to the Cape Bridgewater Holiday Camp?

IMPORTANT 1

It was most important to link the last statement on page three of Peter Gamble’s SVT letter to AUSTEL’s Norm O’Doherty E 26 above, which notes (last paragraph – last page) that:

“Telecom is currently concluding negotiations for the supply of a new generation of call generating equipment, for which the ability to hold and confirm a call for 120 seconds is mandatory,”

Mr Gambles second statement on page one of his SVT letter dated 28th November 1994, to Norm O’Dohert’y see Exhibit 25-a which notes:

“This information is supplied to Austel on a strictly Telecom-in-Confidence basis for use in their Service Verification Test Review only and not for any other purpose. The information is not to be disclosed to any third party without the prior written consent of Telecom.”

IMPORTANT 2

AUSTEL noted, regarding the limitations to BCI’s November 1993 testing of the COT claimants’ phone lines (see page 243 of the COT Cases Report E30-g that:

“AUSTEL has agreed to the study being so limited on the basis that other monitoring it had requested Telecom to undertake on AUSTEL’s behalf should provide AUSEL with the data on the efficacy of the customer access network.” 

This comment must be taken into account in conjunction with the type of monitoring equipment used for the SVT process and the in-confidence clandestine arrangement between Telstra and AUSTEL because it shows that AUSTEL knew, as a result of the previous limitations of the BCI testing, just how important the correct testing of the COTs’ ‘customer access network’ was.

E30-h shows that, on behalf of Alan Smith, Taits of Warrnambool, Victoria (lawyers), contacted AUSTEL on 29th June 1995 regarding deficiencies in both the NEAT and BCI testing processes.  AUSTEL’s Cliff Mathieson’s confusing response to Taits in his letter of 12th July 1995 see E30-1, noted however that:

“The tests to which you refer were neither arranged nor carried out by AUSTEL.  Questions relating to the conduct of the tests should be referred to those who carried them out or claim to have carried them out.”

Page 243 E30-g of the AUSTEL Report clearly shows that AUSTEL did have some control over the BCI testing, so why did they inform Tait’s differently?

PLEASE NOTE:

The late received ACMA FOI documents by Alan Smith, on 13th January 2009, shows Telstra and AUSTEL were aware at least by 11th October 1994, see also Exhibits 23-e, 23-f, 25-a, 26, and 28 that the SVT testing process should never have been used by Telstra as defence documents during the COT Case arbitrations.

So AUSTEL knew the SVT process was not carried out according to the agreed standards and the BCI report was not conducted according to the BCI report and then, on top of this, AUSTEL allowed Telstra to limit the mandatory performance parameters of their testing so Telstra could still meet their licensing conditions.  Clearly anyone inside AUSTEL/ACMA who might have wanted to expose these issues couldn’t, because the threat of punishment according to the Crimes Act 1914 hangs over the heads of everyone in the Australian Public Service.

So far, no Government official has been able to tell Graham or Alan Smith whether or not the threat of prosecution according to the Crimes Act 1914 takes precedence over the duty of care all Australians have, to expose a crime.

12 May 95: Dr Hughes (arbitrator) writes to Warwick Smith, confirming Dr Hughes’ view that the arbitration agreement rules he had just deliberated in Alan Smith’s claim under 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 E31-a

NONE of the COT Cases were advised during their respective arbitrations by either Dr Hughes’ or the administrator Warwick Smith, that it was the opinion of the arbitrator the agreement was not credible.

E31-b, is AUSTEL’s Quarterly to the Hon Michael Lee MP discussing a number of recommendations that have been allegedly met by Telstra under the recommendations contained in the AUSTEL April 1994 COT Cases Report.

On page 19 of this report AUSTEL notes:

“As discussed in AUSTEL’s previous Cot Status Report, various aspects of the Service Verification Tests (SVT) are being reviewed by AUSTEL and Telstra following advice from AUSTEL’s Technical Standards Branch and from Dr Michael Rumsewicz. Dr Rumsewicz is an independent consultant who was employed by AUSTEL to assist it in reviewing the engineering, methodological and statistical issues arising from the SVT.

However, AUSTEL conveniently failed to advise the Minister that Telstra was in a number of cases using the known deficient SVT tests as arbitration defence documents regardless of AUSTEL’s warnings that the SVT process was deficient. Mr Rumsewicz statement on page 12 of his report that:

“We believe that given the stated purpose of the Service Verification Tests supplied in the Telecom Australia Customer Fault Procedures document (000 8410 and that of the AUSTEL COT Cases Report, the statistical test being applied to the collected data is inappropriate.“

Mr Rumsewicz’s statement was still not enough to persuade AUSTEL to expose Telstra’s unlawful use of the SVT report that both Telstra and AUSTEL knew was fundamentally flawed, in support of their arbitration defence.

Comprehensive reports on the AUSTEL / Telstra SVT Process and the Bell Canada International Tests, with supporting exhibits, can be provided, either in hard copy or on disk.  This document however includes only some examples of the material included in those two extensive reports and so provides only an overview of how Telstra and a number of Government officials have covered up various unlawful acts in relation to COT claims against Telstra.  One of the Government officials involved in this cover-up received this information when the Coalition Government was in power and is now a senior executive with Telstra.

PLEASE NOTE:

Even though Graham Schorer had huge problems with the preparation of his claim, a copy of the letter E31-a (above), from Dr Hughes to Warwick Smith, was never given to Graham.

3 Aug 95: Dr Hughes writes to Ted Benjamin, copied to Mr Pinnock, Mr Bartlett and Mr Rundell, noting:

I telephoned the claimant on 3 August 1995 in order to determine whether he was now in a position to proceed.” E32

4 Sep 95: Dr Hughes writes to Graham Schorer, copied to Mr Benjamin, Mr Pinnock, Mr Bartlett and Mr Rundell, stating:

“I refer to our telephone discussion on 3 August last and would be pleased to know if you are yet in a position to indicate whether, and if so when, you intend proceeding with the submission of your claim documentation.”E33

6 Nov 95: Dr Hughes writes to Graham Schorer copied to Mr Benjamin, Mr Pinnock  Mr Bartlett and Mr Rendell, noting

“…If you anticipate a delay of considerable or indeterminate length, I will give consideration to the question of whether this arbitration should be abandoned.”

From 12th May 1995, when Graham Schorer was seeking from Telstra documents to support his claim, he was never told, either by the arbitrator or the administrator that the arbitrator believed the Arbitration Agreement in which Mr Schorer was participating should be revised, if the process was to remain credible. E34

Summary Regarding Rules Not Credible

Dr Hughes noted in his award for Alan Smith 2.1 (d) that he

“…considered it essential that both parties had every reasonable opportunity to place relevant material before me, regardless of the time frame set out in the arbitration agreement”.

Dr Hughes made no mention any where at point 2.1 or any where else in his Award, the comments he was to later make in his 12th May 1995, letter see point 18, above that the he believed the time frames in the Arbitration Agreement needed extending for the process to remain credible. Dr Hughes made no comment in this Award regarding the many Telstra FOI issues raised by Mr Smith, during the arbitration process including;

A.    The Commonwealth Ombudsman’s correspondence condemning Telstra’s provision of FOI documents to Graham Schorer and Alan Smith (including references to the way Telstra stopped supplying Alan because he assisted the Australian Federal Police in their investigation) and;

B.    Advice that Telstra was illegally deleting information from documents legally requested by Alan.

After handing down Alan Smith’s award, Dr Hughes then wrote to Warwick Smith on 12th May 1995 (see E31-a, above), warning the TIO that one of the three reasons the Arbitration process was not credible in its present form was that the agreement had not allowed enough time for the preparation of technical reports. At no time after 12th May 1995, did Dr Hughes advise Graham Schorer, of the deficiencies in the arbitration agreement and/or his advice to Warwick Smith, that the agreement should be revised.

10 Nov 95: A comparison of pages 17 & 18 from the AUSTEL Quarterly COT Cases Report of 10th November (see E35) and statements in the SVT Report prepared by Mr Rumsewicz (see E28) shows that whoever prepared the AUSTEL Report misled and deceived the then-Minister for Communications, Michael Lee MP, regarding the SVT process.  For example, on page 17 the AUSTEL Quarterly Report notes: (a)    “Telstra has now completed its programme of Service Verification Tests on the sixteen DNF Customers referred to Telstra by AUSTEL, with the exception of three customers who have refused to allow the tests to take place.”  Graham Schorer was one of the three who “… refused to allow the tests to take place” but the report did not record that Graham had, by then, discovered that: (1) The SVT (tests) carried out at Alan Smith’s business were ‘fudged’ when Telstra had to abandon the process and (2) the SVT (tests) at Garry Dawson’s business were also abandoned, and this was one of the reasons why Graham had demanded that Telstra attach a ‘call line identification’ device so he would have access to the monitor SVT data – and why the tests were therefore not carried out at Graham’s business.

Mr Rumsewicz’s report noted that, because Telstra’s customers were entitled to know whether or not the SVT process had been carried out correctly, Telstra should have used Telelek CCS7 monitoring to confirm the success (or failure) of the SVT process, clearly supporting exactly what Graham had requested.

Page 18 of the AUSTEL November 1995 Quarterly Report includes the statement that:  (b)   “All services on which the SVT was carried out have met or exceeded the SVT requirements” but E 23-a and E 23-f show that the tests conducted at Alan Smith’s business did NOT meet (and therefore did NOT exceed) the regulatory requirements of the process.

Should we therefore assume that AUSTEL and some of their public officers did not tell Alan Smith or the arbitrator that they had written to Telstra on 16th November 1994, advising that the Cape Bridgewater Holiday Camp SVT process was deficient, because of the constraints of the Crimes Act 1914, which prohibits public servants from disclosing such information and, if it wasn’t the Crimes Act that caused this withholding of information, then what did stop these people from exposing this miscarriage of justice?

Documents E44-a and E44-b (below), from Telstra’s B003 arbitration defence report dated 26th November 1996, record Graham’s business, Golden Messenger, complaining of ongoing telephone problems at least until March 1996.  Those problems that Golden Messenger experienced between October 1995 and March 1996 occurred after the publication of AUSTEL’s November Quarterly Report, which included a 30th June 1995 Status Comment for the Hon Michael Lee MP.  This Status Comment included a reference noting: “All services on which the SVT was carried out have met or exceeded the SVT requirements.”

Document E49 shows, however, this was not the case: various COT claimants were still experiencing telephone problems long after the completion of the SVT process, e.g. E49 (below) shows that, when Telstra visited the Cape Bridgewater Holiday Camp fifty-two months after the SVT process had been carried out, their own records show the technicians noting that it ‘appeared from documents Alan provided’ that the problems he raised during his arbitration had continued to occur after the end of the arbitration.  All this information has been before AUSTEL and the TIO since 1998, forty-seven months after AUSTEL told Minister Lee (on 2nd February 1995) that: “All services on which the SVT was carried out have met or exceeded the SVT requirements.”

This is yet another example of Telstra’s own file notes supporting the claims made by both Mr Rumsewicz and Graham Schorer, that the SVT process was not effective without the added use of a ‘call line identification’ device such as the Telelek CCS7.

Throughout 2008 and 2011, Alan Smith brought to the attention of Mr Chris Chapman, the Chairman of ACMA, both the Rumsewicz report and AUSTEL’s previous reluctance to investigate their reasons for allowing Telstra to use, as arbitration defence documents, SVT reports that Telstra already knew were fundamentally flawed.  ACMA has not yet acted on this information, further suggesting that many public officials with a bias against some of the COT claimants, or strong links to Telstra (and some AUSTEL/ACMA people are ex-Telstra), have been hiding behind the Crimes Act for years, thereby causing serious problems, not only for the COT claimants, but also for those Australian telecommunications consumers in general who have approached the ACMA with complaints similar to those raised by the COTs.

24 Nov 95: This letter from William Hunt, Graham Schorer’s solicitor, to Dr Hughes, states:

“We refer to your letter of 6th November last to our client and subsequent correspondence.  The arbitration proceedings were entered into on a clearly acceptable basis that Telstra would supply required documentation under FOI provisions.  Our client cannot proceed without the relevant information being made available.  Our client is aware of the disastrous state of affairs as to the supply of FOI documents in the recent Smith arbitration wherein documentation was supplied shortly before and after you made your decision; it does not want to be similarly disadvantaged in its own proceedings.” E36

19 Jan 96: Telstra’s five-page letter to Dr Hughes states:

“I should note, however, that in the circumstances, Telstra faces great difficulty in attempting to place practical limits on the scope of its searches.  This is due both to the vague nature of Golden Messenger’s claim and the wide scope of your direction, which is broadly analogous to a direction for Telstra to give discovery of documents, a situation which was not envisaged when the parties entered into the Fast Track Arbitration Procedure.”

On the next page of this letter Telstra list some twenty-six different locations from where approximately 66,000 documents and computer disks had been sourced to accommodate Graham’s arbitration requests.  Telstra didn’t explain however that these 66,000 often included multiple copies of the same documents from these twenty-six different locations.  Even the intervention of the senate Working Party from 1997 to 1999 did not result in Graham receiving the real exchange material he needed, i.e. the CENTOC – TRAXE traffic congestion monitoring data for the outer-exchanges that serviced the North Melbourne exchange that Graham’s business was connected to.  How could any of the COT claimants ever be expected to accurately calculate the extent of lost calls if they were not given these important traffic monitoring data documents?  Rather than 66,000 documents, many duplicated, Graham just needed a single fifty-two page ‘weekly congestion chart’ for each year of his ten-year claim – a total of some 520 pages or more would have sufficed.  E37-a

2nd This Telstra document FOI folio C04550 and C04551 from Trevor Hill to Peter Gamble see E37-b notes:

(4) “Telecom needs to examine those documents pertaining to the tests carried out on North Melb exchange to determine if any of these documents have been generated as a result of an “Interception” If so, then Telecom will be precluded from disclosing them under the discovery process.

(5) “The Australian Government Solicitor, on behalf of Telecom, has written to the solicitors acting for Golden Messenger seeking their undertaking not to disclose to their client or others the content of the report on the North Melb exchange,”

FOI  Document folio C04550 should also be read in conjunction with Telstra FOI document folio 001801 (see immediately below), because it is clear from these two documents Trevor Hill and Peter Gamble were aware in 1990 Graham’s was not getting the documents he should have received under the Supreme Court Rules of discovery.

It is important to put Telstra FOI documents folio C045501 and folio 001801 E37-c together with folio R04205 of 13th December 1993 E37-d, because document R04205 confirms that, while Telstra was involved in the COT FTAP process with the first four COT claimants, including Graham Schorer, Trevor Hill received a copy of a Telstra internal email with the Subject title of “AUSTEL Mandatory Performance Regulation”, this email noted that: “AUSTEL have agreed to limit the scope of Telstra’s mandatory testing performance”.  Taken together, these three documents, which all relate to Trevor Hill, show just how far Telstra was prepared to go in order to hide, from both the Federal Court and (four years later) the arbitrator, that in conjunction with Telstra the regulator AUSTEL had allowed this type of parameter performance limited testing (that should have been applied on all the Difficult Network Fault DNF customers) who had been registering complaints with both the regulator and Telstra for years. It is quite clear that Graham’s business had suffered for so many years, including concealing the unlawful interception that was, at least possibly, carried out on Graham’s business lines.  As document C045501 shows, if Graham’s phone lines were intercepted, then Telstra was clearly prepared to also hide this from discovery, as well as from the Federal Court and the arbitrator.

This secret agreement between AUSTEL and Telstra also indicates that when the COT claimants were preparing to sign the AUSTEL facilitated Fast Track Settlement Proposal in November 1993, in an attempt to have their business telephone services assessed, Telstra and AUSTEL’s Bob Horton were already deciding which of the COT businesses would receive attention (and so possibly survive) once the telecommunication problems were proved, and which COT businesses would not receive attention.

How could either AUSTEL or Telstra ever work out which claimants were genuine and which weren’t if the only customers to receive the testing process in the first place were those that local Telstra technicians decided had problems?  This would mean that those that Telstra technicians decided did not have on-going problems would be seriously discriminated against.

Furthermore, the Trevor Hill and Peter Gamble who are referred to in FOI folio C04550 (see E37-b) played a number of important roles in the Graham Schorer and COT Fast Track Arbitration Procedure (see below).

PLEASE NOTE:

In October 2009, Graham requested under the Privacy Act from the TIO office a copy of a report prepared by Paul Howell DMR (Canada) the technical consultants appointed by the TIO during Graham’s arbitration this report has still not been supplied.  This request also led to the alarming discovery that now, in October 2009, Telstra’s Trevor Hill is the Director of the TIO Board and could therefore have something to do with why Graham has not seen this report as of January 2010. It is important to link FOI document folio C04550 E37-b with E38), which is a letter dated 1st April 1996, from George Close, Graham’s arbitration technical advisor.  Mr Close’s letter discusses Peter Gamble (the same Telstra employee) and Telstra’s reluctance to provide discovery and/or FOI documents to Graham during Graham’s Fast Track Arbitration Procedure.  Together, these documents indicate the level of obstruction created by various Telstra employees, in relation to Graham’s Federal Court case in 1990 /92, and his Fast Track Arbitration Procedure (FTAP) between 1994 and 1998.  The problems caused by Peter Gamble in particular, in relation to other COT claimants as well as Graham, are discussed in detail below.

E 37-b, which is referred to above, shows that Peter Gamble knew, in November 1990, that the North Melbourne Exchange Report had been provided to the Australian Government Solicitors (AGS) and the AGS had then asked Graham’s lawyers (Landers &Rogers) to withhold that report from Graham and yet, six years later, during Graham’s FTAP process, the same Peter Gamble deliberately withheld from Graham similar technical documents regarding the results of tests carried out at the same North Melbourne Exchange.  Telstra was in breach of the Supreme Court rules regarding discovery when, in their defence of customers’ claims, they relied on discovery documents they did not provide to that claimant.  In Graham’s case, Telstra started using this strategy as early as 1990 see E37-b and were clearly still using it in 1996 see E37-a and E38.

The ‘Traffic Report’ test result issue must be read in conjunction with exhibits E36-a and E38; the issues raised by Mr Rumsewicz in his SVT report to AUSTEL (see E28); and Mr Rumsewicz’s comment that

“We believe that more accurate incoming customer call profiles could be created through the use of Telelek / CCS7 equipment…” because Telstra never did provide any raw monitoring data, either from CCS7 equipment or from CENTOC TRAXE equipment, to confirm their assertion that Graham’s business had never had to deal with all the problems Graham had recorded.

It is quite clear that Graham was entitled to receive copies of the technical information that Telstra relied on in their arbitration defence, because AUSTEL’s draft report (E43) on Graham’s business (Golden Messenger) confirmed, based on Telstra’s own data records, that the problems were real and that Telstra had misled Graham for years regarding these issues.

25 Jan 96: Ted Benjamin writes to Graham stating:

“…At paragraph 17 the Claimants state that their business was connected to the Telstra Australia ISDN Network in December 1993 by Telecom Australia, but the service difficulties, problems and faults previously experienced still continued. Telstra understands that the PABX generates at the premises at which it is located and also generates reports which are sent to or generated at the premises of the company responsible for servicing that PABX. Those reports are relevant to the Arbitration to enable Telstra to distinguish between the telephone service difficulties, problems and faults attributed to the CPE, CAN and Network and misoperations by the Claimants.” E38

In other words, Telstra wanted documents from Graham but would not release the congestion traffic data for the exchanges that serviced the North Melbourne exchange that serviced Golden Messenger see E37.  Again, here is further evidence that Telstra breached the Supreme Court ‘rules’ in regards to the release of discovery.

16 Feb 96: Graham Schorer’s solicitor, William Hunt, received a phone call from Amanda Davis, who had been AUSTEL’s General Manager of Consumer Affairs, but now had Power of Attorney for Maureen Gillan’s claim.  Maureen was one of the four COT claimants at the time.  William Hunt’s file note regarding this phone discussion is most important.  Mr Hunt noted:

“… Amanda Davis, who rang on the suggestion of Schorer.  She told me she had complained in effect to Bartlett of the legal support team to Hughes, that the administrator (the Telecom Ombudsman’s department) had been pressuring Hughes to produce results and get on with the matter generally.  She was putting it to Bartlett that any pressure on Hughes should be related to getting Telecom to produce results and not just to wind the matter up.

The impression I got was that Bartlett’s view was that the administrator had to keep out of the rights and wrongs of the disputation between the parties to the arbitration,”E-39-a

Dr Hughes was also Graham Schorer’s arbitrator and the issue here is the pressure that was still being exerted on Dr Hughes to complete Maureen Gillan’s claim, as noted in William Hunt’s file notes regarding Amanda Davis’ phone call.  The most important section of Mr Hunt’s file notes is his record of Amanda Davis saying that: “The impression I got was that Bartlett’s view was that the administrator had to keep out of the rights and wrongs of the disputation between the parties to the arbitration.”

Although Ms Davis does not appear to be critical of Mr Bartlett, it does seem somewhat alarming that Mr Bartlett seems to be laying some of the blame (for delays and interference in the process) on the administrator when previously (28th April 1995) it was Mr Bartlett himself who was directly interfering in Alan Smith’s arbitration when he wrote to Warwick Smith 28th April 1995, stating Dr Hughes had to bring down his findings before he left for Greece.

18 Mar 96: Oren Zohar from FHCA the TIO-appointed Arbitration Resource Unit sends a fax to Dr Hughes stating:

“…Telstra has proposed that the meetings be held on Monday, Wednesday and Friday week commencing 25 March 1996. Graham Schorer has yet to confirm whether these dates are acceptable and he has advised that he will contact me once he has spoken with George Close and his solicitor, Bill Hunt,” E40

19 Mar 96: William Hunt’s file notes states:

“…At or about the same time Bell Canada had Telstra doing reports on its service in relation to Golden’s receipt of same. At or about the same time similar tests were being done on the Telstra equipment to Smith and the results of those cover the demonstration that they could not have been done.  As to the second Bell Canada test Schorer has on disk the Telstra abandoned certain tests as part from certain exchanges. One can only assume that the reports were unsatisfactory to Telstra or supportive of Schorer.” E41

01 Apr 96: Document E39 is a letter from Graham’s technical advisor, Mr George Close, headed RE: Inability to Obtain Relevant documents from Telstra: RE: Telephone Service Difficulties and Faults.  In this letter Mr Close confirms that, without the relevant technical data from Telstra in relation to their testing process Graham had little chance of proceeding any further with his case.  Mr Close’s criticism of Telstra is supported by Dr Rumsewicz’s comment, in his report to AUSTEL (E28), that Telstra would have obtained “… more accurate incoming customer call profiles…” if they had used “…Telelek / CCS7 equipment”.  Telstra, however, had still not released this type of data to Graham two years into his arbitration.

So we have Telstra refusing to release discovery documents to Graham and deleting information in those few documents that were, miraculously, actually provided to COT claimants, and Dr Hughes writing to Warwick Smith see E31-a because these same document issues led him to declare the arbitration agreement to be ‘not credible’!  Is it any wonder that Graham is still receiving professional assistance to recover from this arbitration debacle

11 Jul 96: This letter from Sue Harlow (Member) AUSTEL to Senator Richard Alston attached the sixth AUSTEL COT Cases Report see E43 which notes on page 12 under the heading Conduct of the Arbitrations –

“The TIO believes some comment on the behaviour and attitude of Telstra in the conduct of these Arbitrations is warranted.

Recommendation 30  of the AUSTEL COT report recommends that the “proposed arbitration procedure only require a finding on reasonable grounds as to the causal link between a claim for compensation and alleged faults and allow reasonable inferences to be drawn from material.”

All three arbitration procedures make provision for the lower standard of proof. However, Telstra’s conduct in the defence of most (if not all) claims has tendered to assert that strict legal proof in relation to causation is required and is characterised by reliance on legal principals not in keeping with the spirit with which these arbitrations were instituted.

The TIO believes that Telstra has, in all claims, responded in an overly legalistic manner. It has shown a tendency to deny liability under every potential clause of action on the basis of perceived statutory and contractual immunities.”

Ms Harlow however failed to tell Senator Alston that Alan Smith had personally described to both the arbitrator and Ms Harlow how Telstra had blacked out relevant information in some documents after he had previously seen the same documents, at Telstra’s Melbourne offices (see E48-a and E48-b, below), without those sections blacked out, and that Alan provided copies of both versions of those documents as proof of his claims.

Although AUSTEL has a considerable amount of evidence of Telstra illegally altering information on documents legally requested under discovery, AUSTEL has still not publicly supported the COT claimants who are, after all, innocent Australian citizens.  It seems, again, that the Crimes Act has blinded some public officers in AUSTEL (some of them still working with ACMA) to the principles of natural justice.

22 Jul 96: Hughes writes to William Hunt noting:

“…I have considered the submission of the parties Dr in relation to the request by the claimant for an adjournment of this arbitration until January 1997. The essence of the claimants request is that: Telstra has not been co-operative in responding to FOI requests but (as I understand how the argument is put) further information might be usefully produced it Telstra is granted an adequate period of time to produce it.

Telstra has responded by asserting:

  • the arbitration agreement provides for the completion of steps within agreed time frames;
  • the history of this arbitration demonstrates that Telstra has taken all reasonable steps to provide the claimant with relevant information.

After considering the matters raised by both parties, I have come to the following conclusion:

  • it is not, however, essential that all relevant information be available to the claimant at the time the Statement of Claim is submitted;
  • I do not believe the claimant would be prejudiced by submitting a claim based on information presently available to him,”  

Please note: the FTAP (Agreement) at clause 10.2.2, states:

“The Arbitrator will make a finding on reasonable grounds as to the causal link between the alleged service difficulties, problems and faults in the provision to the Claimant telecommunication services and the losses claimed.”

It has already been established that, on 20th February 1996 (see above), Telstra provided Dr Hughes with a comprehensive list of the forty-eight separate exchanges that routed through to the North Melbourne telephone exchange that serviced Golden Messenger.  If Telstra wouldn’t provide Graham Schorer with all the traffic congestion data for those forty-eight exchange routes, how could Dr Hughes possibly expect Graham to be able to prove reasonable call loss associated with those forty-eight exchanges?  For example, if fifteen of the forty-eight exchanges suffered  14% congestion during peak hours (en-route to the North Melbourne exchange), and eighteen of the remaining thirty-three exchanges suffered 8% congestion in peak hours, how could Graham differentiate between a reasonable causal link for the lost calls if he was not provided with the traffic data for all forty-eight exchanges?

26 Nov 96George Afonezenko Telstra’s arbitration witness makes a number of statements regarding the Flexitel equipment in Telstra’s 26th December 1996 briefing B003 report see E45 and E46, which do not match the findings contained in the government regulators (AUSTEL) draft report on the same Flexitel equipment!

It would be reasonable to conclude that Graham Schorer was knowingly misled by Telstra on a number of occasions concerning the Flexitel System in 1987 to 1992.   It is also evident that towards the end of 1992, nothing had really changed for Golden Messenger and their communication problems. This misleading and or deceptive conduct continued during the Federal Government funded COT investigations of 1993 and 1996 with the regulator AUSTEL also withholding most of their relevant findings from the COT Cases investigations.

In October 2008, thirteen years after Graham’s original arbitration request to AUSTEL, the then Government Telecommunications Regulator (now called ACMA) he finally received, under FOI, a draft report that AUSTEL had prepared concerning his on-going telephone issues early in his FTSP (arbitration).  This draft report had been provided to Telstra during this period, but was withheld from Graham until October 2008 see pages 16, 17 , 18 and 38 E 45, which support Graham’s claims that his business had suffered severely due to these unresolved problems. When page 48 and 49 from Telstra’s B003 Briefing report see E 46 is compared to the four pages from the draft AUSTEL report at E 46 it is clear that, if Graham had been given a copy of the draft report in March 1995, under his original FOI request, he could have successfully challenged statements made by George Afonezenko regarding the Flexitel equipment.

These four pages from the AUSTEL draft report prove that it was Telstra’s own fault reports that led AUSTEL to come to the conclusion that Telstra had been more than just ‘misleading and deceptive’ in their dealings with Graham (the ‘Golden Messenger’ business referred to below), in relation to exactly what Telstra knew about the limitations of the Flexitel system.

The statement made by AUSTEL on page 38 of this report: 

“Golden Messenger has advised that its decision to accept a settlement and not proceed with legal action was made on the basis that it was not in the position to fund the legal action in the Federal Court. It should be noted that five years prior to the settlement, that is for the entire duration of the disputed period, Telecom maintained that the Flexitel System was satisfactory whilst internal correspondence from technical and legal staff acknowledged – the system did not meet Golden Messenger operational requirements (paragraphs 23, 24 and 25 refer) – Golden Messenger was likely to be successful in establishing that Telecom engaged in misleading and deceptive behaviour (Legal Briefing Paper, dated 1 July 1992, prepared by Principal Legal Officer) – The above findings do not support Telecom’s claim of COT receiving fair treatment.”

The above information confirms the Government regulator erred by withholding this important information from being assessed during Graham’s arbitration. 

If Graham had been given the Government Regulator’s findings before he signed for arbitration on 21st April 1994; even if he had been given the report shortly after he signed the arbitration agreement, he could have passed this information on to the arbitrator who would then have had to conclude that Telstra had deliberately withheld this information from Graham during his Federal Court proceedings. There was no way that Telstra could then have submitted a defence that contradicted AUSTEL’s findings because AUSTEL’s findings were based on Telstra documents provided by Telstra to AUSTEL during AUSTEL’s Government-funded investigation into Graham’s complaints.

26 Nov 96: Telstra arbitration defence document provided to Graham Schorer, entitled Briefing Document B003 report dated 26th November 1996, (Appendix D page 18) Telstra notes at:

Point 4:

“…From 10 October 1995 customers whose services were directly connected to LONU exchange would incorrectly receive a RVA when calling (03) 9287 70** (8 digit dialling). Customers connected to North Melbourne System-12 exchange (NMEE) to NMEX would incorrectly receive the RVA of 50% of all call attempts to (03 9287 70xx.  were trunked on 50/50 basis via LONU and North Melbourne AXE Telephone Exchange.  

Point 8:

“…Traffic Observation data available for the codes (03) 286 & 287 **** and (03) 9286 & 9287 **** shows that the percentage of callers dialling new 8 digit codes was less than in October 1995 and less than 50% in December 1995 E 46-a

In regards to this same Lonsdale fault see E 46-a Telstra notes at (Appendix E page 15 of 29) that:

“…On 19January 1996 the Claimants’ complained that at 4:30pm they attempted to ring their own (03) 9287 7000 number following a clients complaint of receiving RVA intermittently. The fault was traced to incorrect data at LONU exchange on 10 October 1995. {Ref: J05771 to ZJ05774}

A detailed analysis of this fault is provided in ‘Investigations, Analysis and Supportive Data’. The estimation of the impact attempting to call the Claimants’ ISDN services is:

for 1 (a) October to 12 December 1995, approximately 0.12% call loss from the Melbourne (030 network attempting to call the Claimant’s ISDN; and

 for 13 December 1995 to 23 January 1996, 0.23% call loss from the Melbourne (03) network attempting to call the Claimants’ ISDN services.

Therefore the data error on Lonsdale had negligible effect on call delivery to the Claimants’ ISDN service and no effect to their PSTN service. The Claimants’ outgoing calls were not affected

George Afonezenko regarding the Flexitel equipment

PLEASE NOTE: Alan Smith’s business was also trunked off of an AXE exchange which AUSTEL noted in their draft report had suffered with RVA faults see E46-c noting

“The assessment provided to Mr Smith that up to 50% of STD calls from Melbourne to Cape Bridgewater Holiday Camp would have been affected by the MELU RVA problem appears to be accurate”   

E46-d shows that on 25th February 1994, during Alan Smith and Graham Scherer’s (FTSP arbitration process) Senator Richard Alston raised the AXE problems in the Senate Estimates Committee with the then Chairman of AUSTEL Robin Davey noting:

“I refer you to a minute from Telecom dated 2 July 1992 in relation to Mr Alan Smith of Cape Bridgewater – no doubt well known to you and to me. This minute says:

Our local technicians believe that Mr Smith is correct in raising complaints about callers to his number receiving a Recorded Voice Announcement saying that the number is disconnected. They believe that it is a problem that is occurring in increasing numbers as more and more customers are connected to AXE”.

The upgrading to AXE exchanges has continued apace since that time, has it not?

Mr DaveyMy understanding is that it has, yes.

Senator ALSTON – “On the face of that letter then suggests or implies that you will be having more and more complaints as a result – presumably some sort of overload.”

Telstra waited until October 1998, see E46-e before supplying George Close (the technical advisor to Graham Schorer’s and Alan Smith arbitration) hundreds of Telstra minutes from their two weekly conferences where this known AXE problem was discussed on a regular basis noting:

**ACTION POINT: AXE T (Edwin Khaw) to raise Charging Check issues with Ericsson, and advise when final solution will become available – ACTION POINT: AXE (Bob Paton) to check that testing of RVA routes after the next AX62 conversion is performed,” and ACTION POINT: AXE-T (Bob Paton) to supply NSS CW with a list of outstanding package 2 faults in order to reach agreement on those which must be solved prior to implementation.”

E46-e is just one document from over a hundred Telstra conference memos which should have been supplied under discovery to Alan Smith and Graham Scherer prior to them submitting their claims.

On 3rd October 2008, under instruction from Mr G Friedman of the Administrative Appeals Tribunal the respondents to Alan Smith’s FOI complaints ACMA were to supply Alan free of charge all the FOI information pertaining to his FOI matters under investigation by the AAT.

E46-f is a copy of a letter from Alan Smith’s dated 3rd November 2008 to Mr Chris Chapman Chairman of ACMA advising him that ACMA has still not released to Alan the AXE documents they were obliged to provide him under direction of Mr Friedman during the AAT hearing.

E46-g this letter dated 9th November 2008 from Alan Smith to Mark Hughes AAT Case Service Officer (copied to Mr Chris Chapman) shows that the AXE report requested by Alan as part of his AAT hearing has still not been supplied by ACMA. On page 3 of this letter Alan quotes from page 168 from the April 1994 AUSTEL COT Case Report which notes at point 7.40

“AUSTEL recently became aware that Telecom had prepared an internal document on the subject of this AXE fault on 21 March 1994 sought a copy from Telecom.”

As of 2010, ACMA has still not abided by the orders given by Mr Freidman AAT and supplied Alan Smith a copy of this AXE report.

E46-h is page 168 from AUSTEL April 1994 COT Cases Report.

COMMENT 1

E 45 (above) confirms that AUSTEL’s draft report had condemned Telstra for misleading and deceiving Graham Schorer during his Federal Court proceedings while the following exhibits E46-b to 46-h show AUSTEL has since the time of their report both on Graham’s telephone problems and Alan’s Smith’s problems have withheld their knowledge of the damming information contained in those draft reports as well as not providing the AXE information they should have provided under the direction of the AAT.

Did the 1911 Crimes Act sway AUSTEL to withhold this vital evidence from Graham and Alan?  If AUSTEL had given Graham and Alan a copy of their AUSTEL draft report during Graham and Alan’s arbitration, Graham and Alan could have amended their claims and the arbitrator may even have decided that it was not appropriate to continue with the arbitration because AUSTEL (the Government Regulator) had already found in Graham and Alan’s favour – before the arbitration had even begun.

E46-c, (attached here) are pages 38 and 39 from a sixty-four-page draft report in relation to Alan Smith’s claims against Telstra, prepared by AUSTEL on 3rd March 1994 but not provided to Alan until the Australian Communication & Media Authority (ACMA) finally sent a copy to him on 21st November 2007.  Point 103 of this report is decidedly critical of Telstra for misleading and deceptive statements made by Telstra regarding the MELU Lonsdale Exchange RVA problem, noting that: “It is apparent from Telecom’s documentation that no investigation of the duration of the MELU data error problem would have been initiated without the persistence of Mr Smith’s complaints on the matter.”  Then, in the next point (104), the report further states that: “The assessment provided to Mr Smith that up to 50% of STD calls from Melbourne to the Cape Bridgewater Holiday Camp would have been affected by the MELU RVA problem appears to be accurate.”  This makes it quite clear that, if Alan had been given a copy of this draft report before his arbitration began, the arbitrator would surely have had to find against Telstra in relation to many of Alan’s claims.  Since a copy of the report was not given to Alan at the appropriate time however, in the same way that a copy of the report regarding Graham’s Telstra claims was not given to Graham, we have to conclude AUSTEL’ favoured Telstra against Graham & Alan.

IMPORTANT QUESTION

When Telstra wrote to both the TIO and AUSTEL on 11th January 1994 see E 17-c and E 17-d noting:

“That: Information obtained from Telecom, in the course of AUSTEL’s regulatory functions, and relevant to any parties involved in a formal arbitration process with Telecom under the control of the Telecommunications Industry Ombudsman (TIO) will only be released after consultation with the TIO and Telecom”.

Did they do so, aware that if AUSTEL disclosed information to the public (COT Cases) which had been passed onto AUSTEL by Telstra during AUSTEL’s regulatory functions that the officer who disclosed this information could be charged under the 1914 Crimes Act?   

Not in date order

8th March 1995: Correspondence sent from AUSTEL to Telstra and Graham’s FTAP advisor (Garry Ellicott), regarding Graham’s FOI request to AUSTEL, which asked for access to documents held by AUSTEL see E48-a, E48-b and 48-c these three letters show that Graham was asking to see technical information that AUSTEL would have had to have received from Telstra during AUSTEL’s investigation into Graham’s (Golden Messenger) issues.48Not in date sequence

31st March 1994: This letter from AUSTEL’s General Manger, John McMahon see E47 to Graham notes:

“The Telecommunication Act 1991 requires, in effect, that where as a result of an investigation AUSTEL makes a finding that is adverse to a respondent it must afford the respondent an opportunity to make submissions in relation to the matter. Accordingly, AUSTEL will be making a copy of its draft report available to Telecom for its perusal at its premises on Wednesday, 6 April and Thursday, 7 April. As a matter of courtesy I would like to give to you and other directly interested parties the opportunity to view the draft report,”

Graham was not provided a copy of their draft report referred to in their letter see E47, until October 2008. And neither did they provide a copy of their draft report regarding Alan Smith’s ongoing telephone problems until November 2007.  AUSTEL has also proved reluctant to provide copies of the Telstra AXE report they referred to in their 1995 COT Cases Report (see E 46-f to 46-h) and has still not provided Alan with the relevant AXE report, and other documents, that the (AAT) Member Mr Freidman directed them to provide, under an official order from the Administrative Appeals Tribunal.

It is also important to link the issue of the lack of documents supplied by ACMA after directions from the AAT (E46-f) with AUSTEL/ACMA’s reluctance to ever admit that the SVT process – the most important part of the COT arbitration process – was either not administered lawfully or, at the very least, was not administered transparently or in accordance with basic Australian legal processes.  After all, if the telephone faults reported by a business are still occurring at the end of an arbitrator’s deliberations, how can a successful outcome ever be attained?

The information we have supplied here proves that, as late as 2008, the Government Regulator and their Public Service employees were still deliberately withholding their knowledge of the many deficiencies in the COT arbitration process, and it seems that this has been done with the assistance of the ‘secrets’ sections of the Australian Crimes Act 1914.  This serious and deliberate deceit is compounded by Telstra also using the same Crimes Act to hide what they knew, thereby denying ordinary Australians their democratic right to be treated equally by our legal justice system, both according to Australian laws and the principals of natural justice.

Please help us to rectify these wrongs by passing a copy of this document to your Federal Member of Parliament or, if you are a Member of Parliament, by raising this matter with the Government, on behalf of those Australians whose lives have been ruined by the improper use of the Crimes Act 1914, which has stopped honest Australian Public Servants from exposing this disgraceful saga for sixteen years or more.

Letter dated 4th February 1998 from Telstra’s Ted Benjamin to John Pinnock TIO attaching Telstra files notes following their 14th January 1998 investigations into the continuing phone problems affecting Alan Smith’s business. E4950Not in date orderThis letter E50-a dated 13th October 1994 from a Telstra whistleblower was received by Graham Schorer in 2001 under FOI from the then government regulator ACMA. Exhibits 50-b and 50-c support the comments made in E50-a that Telstra were altering relevant and/or removing information from discovery documents requested by the COT claimants in an attempt to minimise Telstra’s liability.

Document E51, are pages 89 to 92 from the April 1994 AUSTEL COT Cases Report, clearly shows that the telephone problems that the claimants reported continued to occur because the SVT process was not in operation during the first COT settlement process in 1992.  When Neil Tuckwell then failed to ensure that the SVT process met the regulatory standards during the 1994/5 arbitrations, the COT claimants whose businesses were still suffering from the same major telephone problems that had sent them into arbitration in the first place (see E49), and who were complaining that now the SVT process was not being carried out correctly, continued to watch their businesses being destroyed for years after AUSTEL had told various Government Ministers that the SVT process had been ‘successfully’ completed.

Exhibit E23-j (see above) confirms on 25th February 1994 Robin Davey (then the Chairman of AUSTEL) told Senator Richard Alston (see Senate Hansard records at E23-j) that AUSTEL had developed a ‘network telephone standard’ and the telephone services of all the COT claimants would therefore have to reach this ‘standard’ before they were signed off, but Mr Davey’s predecessor, Neil Tuckwell, did not adhere to these standards.

Not in date order

This letter from Steve Black, Telstra’s arbitration defence coordinator to Robin Davey Chairman of AUSTEL notes:

“Attached for your information, an updated draft of the standard Verification Tests for use in Telecom’s Public Switched Telephone Network. The tests have been prepared in consultation with Cliff Mathieson of AUSTEL and will form the basis for determining whether an individual telephone service is operating satisfactory. Once agreement has been reached on these Verification Tests, Telecom will be in a position to commence the testing of the services associated with COT customers. And ensure they meet the agreed requirements for a satisfactory service.” E52

Not in date order

This AUSTEL document page 18 from the AUSTEL COT Cases 22nd August 1994 report Recommendation 20 & 22 re AUSTEL Comment:

At an appropriate time AUSTEL will be requesting a sample of reports provided to DNF customers to ensure that the process is being successfully implemented.” E53

Not in date order

This AUSTEL document page 14 from the AUSTEL COT Cases 22nd August 1994 report Recommendation 25 re AUSTEL comment:

“AUSTEL notes that DNF customers have characteristically reported recurring faults over extended periods of time. Clarification will be required of the definition of ‘service repairs’ when a fault recurs after initially having been determined as “repaired’. This issue will need to be addressed in the context of this recommendation.” E54

Not in date order

This AUSTEL document page 15 from the AUSTEL COT Cases 22nd August 1994 report Recommendation 26 re AUSTEL Comment:

“An issue relating to Telecom’s requirement to rectify all Difficult Network Faults (DNF) within 12 months and the role of the Service Verification Tests (SVT) in the determination of the adequacy of a DNF service is that the SVT clearly have to be conducted well before 30 May 1995 to meet the requirement of recommendation 25. For example, if the SVT indicate an unacceptable level of service then a considerable amount of time may be required to rectify the service in question, particularly if major replacement of exchange equipment is required to bring the service to the acceptable standard.” E55.

15 Sep 05: Senator Barnaby Joyce wrote to Alan Smith and Graham Schorer noting:

“…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 provide 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 privatisation legislation E56

16 Nov 06: Letter from Senator Joyce to the Hon Senator Helen Coonan noting:

“I must remain with my commitment to the people involved with the CoTs cases. The commitment is representing their frustration and finding a resolution to the issue.

The resolution to the issue, is referenced in your letter of 13th September 2005, where you state “I agree that there should be finality for all outstanding “COT” cases and related disputes. I believe that the most effective way to deal with these is for me to appoint an independent assessor to review the status of all outstanding claims.”E57

As of 2010, Telstra nor the previous Coalition Government or Telstra so far have addressed the agreed unresolved Telstra COT Case issues.

15 Sep 09: Letter from Alan Smith to Ms Deirdre O’Donnell noting: “Not long after Mr Pinnock wrote his letter to Mr James (President of the Institute of Arbitrators Australia) on 27thFebruary 1996, (in support of Dr Hughes as the COT arbitrator) he told a Senate Estimates Committee hearing, in relation to the COT arbitrations in general, that:

For present purposes, though, it is enough to say that the process was always going to be problematic, chiefly for three reasons. 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” E58

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