CAV Part 3

Please note: Part 3 of our CAV report is still being edited as of June 2019:- thank you

Part 3

26th February, 1997:  A 54-page transcript of a meeting held on this day is attached to the Graham Schorer Relevant Information document, at exhibit 7.  John Pinnock, Graham Schorer, William Hunt, Peter Bartlett, Lucy McCullagh (Minter Ellison) and John Armstrong (Telstra) attended the meeting, regarding a variety of issues associated with the FTSP and the FTAP.

Page 15 records Graham telling Mr Pinnock:

“Now, also at that meeting, it was disclosed for the first time, it was # # disclosed on the previous day, on 20th [20th April 1994], that Ferrier Hodgson and DMR Australia refused to accept the appointment as the Resource Unit under the FTAP, while having indemnified Telstra for amounts awarded as penalties of whatever for failure to act impartially – I don’t know the correct wording, but it was in the draft up the left column.

Please note

On 20th April, 1994 Graham and Alan Smith met with Graham’s solicitor, William Hunt, to discuss the latest FTAP agreement (dated 31st March, 1994) which was faxed to Mr Hunt the previous day by Caroline Friend, Dr Hughes’ secretary (see Graham Schorer’s Relevant CAV Information file exhibit 17).  Graham, Alan and Mr Hunt discussed whether the $250,000 liability cap for FHCA and DMR (Australia) was enough, considering the size of the claims, and finally agreed it was better than no amount at all.  Graham and Alan cannot recall why the Special Counsel was not named in the agreement (nor had a liability cap for conscious or deliberate negligence or wrongdoing), but they believed the Special Counsel’s role, as the Legal Advisor to the process, worked similarly to the arbitrator’s liability. See clause 24:-

“Neither the Administrator nor the Arbitrator shall be liable to any party for any act or omission in connection with any arbitration conducted under these rules save the Arbitrator (but not the Administrator) shall be liable for any conscious or deliberate wrongdoing on the Arbitrator’s own part.”

Pages 21 to 24, of the 26th February, 1997 transcript records Graham raising concerns regarding the impartiality of some people involved in the process, particularly the close relationship between Telstra representatives and certain members of Ferrier Hodgson Corporate Advisory (FHCA) as correspondence to the arbitrator, was passing via the TIO’s office to FHCA without being copied to the COT claimants.  On page 24, Graham explains to Mr Pinnock, “That’s correspondence between either the Resource Unit, Telstra and/or the arbitrator without the COT 4 being a recipient of that correspondence.

Mr Pinnock maintains that according to his knowledge, all the material passed through his office (at least since he was appointed as Ombudsman) was copied to the other party when it was appropriate, unless human error had been involved.  Graham does not hold Mr Pinnock responsible for anything occurring before Mr Pinnock was appointed, but he is most concerned about information not being correctly passed on now (including documents requested under FOI)

Finally, Mr Pinnock admits that he knows of at least one letter Telstra addressed to Dr Hughes in August 1994 that was not copied on to Alan Smith.  He states:-

“It certainly is not cc’d to Alan, at least on the face of the document, whether Gordon Hughes subsequently sent it to Alan I couldn’t tell either, I mean that would depend on looking at his files, the point of it however, and I’ve noted this myself the Telecom letter actually seeks a direction from Gordon Hughes as to a procedure or process issue under the arbitration and if such a direction was sought and Gordon was prepared to give he certainly wouldn’t have given it without first inviting Alan Smith to comment on it.”

The discussion continues:

Graham:          “Not necessarily, and what I’m also saying is if Telstra had sought a direction of the arbitrator it should have been cc’d to Alan it should be cc’d.”

Mr Pinnock:“I understand that but you’re saying that it is selective.”

Graham:          “Of course I am.”

Mr Pinnock:    “All right now, well what’s your example to show that it is selective as opposed to an oversight?”

This discussion raises the following questions about this meeting:

  1. Why didn’t Mr Pinnock admit he knew Alan Smith’s arbitration was totally derailed by FHCA withholding relevant inter-procedural arbitration billing claim documents from AUSTEL to Dr Hughes and/or Telstra and from Telstra to Dr Hughes, during December 1994? (See Dr Hughes Billing issues LGE 6)
  2. Why didn’t Mr Pinnock admit that, between November and December 1994, Telstra sent Dr Hughes a letter that incorporated three separate attachments, regarding the billing faults Alan raised in his claim, and which confirmed Telstra advised AUSTEL they would address these faults in their arbitration defence? Ultimately, they only addressed these faults secretly with AUSTEL, on 16th October, 1995 five months after Alan’s arbitration was deemed to be complete. (See Alan Smith – Steve Black Target file)
  3. Why didn’t Mr Pinnock admit the 16th October, 1995 submission to AUSTEL was accompanied with a witness statement, dated 12th December, 1994 which Telstra knew was flawed?
  4. Why didn’t Mr Pinnock admit he added his own handwritten note to one of the letters Alan Smith had written to him in relation to the withholding of these very same documents (see 26th June, 1996), noting:-

“These are quite serious allegations. We need to respond to specific letters Smith says weren’t forwarded or received and provide answers on each”? (See John Pinnock Conspiracy to Pervert the Course of Justice LGE 5)

  1. Why didn’t Mr Pinnock admit he knew FHCA wrote to Dr Hughes (copied to the TIO’s office), on 2nd August, 1996 admitting to withholding the aforementioned letters from both Dr Hughes and Alan Smith? (See John Pinnock Conspiracy to Pervert the Course of Justice LGE 5)

Had Mr Pinnock made these admissions during this meeting, particularly with Telstra’s Legal Representative (John Armstrong), the TIO’s Legal Representative (Peter Bartlett) and Graham’s Schorer’s solicitor (William Hunt) all present, then a proper investigation would have had to have been convened – and such an investigation would have validated Graham’s concerns.

27th February, 1997:  It appears from William Hunt’s file notes, he believes even Mr Pinnock is now wondering where the discovery and production of document issues are heading:-

“In support of Pinnock’s own views as well as what was put to him by me, he will ring Gordon Hughes to advise that with Telstra’s and his permission, I am to ring Hughes on Thursday or Friday afternoon – the idea being that the problem of obtaining information from Telstra via FOI is to be abandoned in effect by getting it specifically under directions from Dr Hughes and that there will be a need to get certain information first before usefully any further information can be obtained.” ( GS-CAV 260)

Dr Hughes responds to William Hunt’s letter of 25th February, 1997 (incorrectly referring to 26th February 1997).  In this response Dr Hughes notes:-

“At this stage, I am not inclined to hold an oral hearing to discuss ‘the continuing failure of Telstra to supply information in breach of the basis on which the FTSP and FTAP were entered into’.”

It appears Dr Hughes forgot the commitment he made to Graham and the other COT cases, on 17th February, 1994 “that as arbitrator, he would not make a determination on incomplete information’. ( GS-CAV 261) 

3rd March, 1997:  Ted Benjamin writes to Dr Hughes, re Schorer Arbitration – Golden Messenger:

“I refer to your letter 18 February 1997 and the Claimants’ letter dated 25 February 1997. …

Considering the options you outlined in your letter dated 18 February 1997Telstra does not propose, at this stage, to respond in detail to the Claimants’ request for documents as such a response may be irrelevant.” (GS-CAV 262)

5th March, 1997:  Dr Hughes replies to Ted Benjamin, noting:-

“As foreshadowed, I propose giving directions regarding the production of documents by each party. This may or may not involve a direction that Telstra produce documents.” (GS-CAV 263)

12th March, 1997:  Ted Benjamin writes to Dr Hughes, stating:-

“I refer to your letter dated 5 March 1997 in which you foreshadowed giving directions in relation to the production of documents, and allowed the parties until today to provide you with their submissions by way of comment.”

“As Telstra has not completed its submission, I propose that subject to your consent, the parties be allowed until close of business this Friday 14th March 1997.” (GS-CAV 264)

14th March, 1997:  While misleading Graham, in regards to the type of information that should be readily available to him, i.e., the CENTOC – TRAXE exchange congestion data information, Mr Benjamin states:

“I understand the tables of data at page 137 of the AUSTEL Report to have been compiled from Traffic Observation (TROB) data, which was specifically extracted and analysed for AUSTEL in the course of preparing its report of April 1994.”
(GS-CAV 265-A)

Various official Senate Hansard recordings of March 1999 show Senators Alan Egglston, Kim Carr and Chris Schacht all damned Telstra for withholding these types of important technical documents from the COT cases during their arbitrations.

Attached as Exhibit GS-CAV 265-B is page 30 of an Excel spreadsheet, marked Legal Professional Privilege – Telecom Confidential, listing an array of technical fault information associated with Alan Smith’s complaints raised with Telstra in February 1993.  Telstra only supplied this Excel information and numerous similar files to Alan in October 1997, under pressure applied by the Senate.  At points 755 and 758 in this document, is evidence confirming TRAXE – CENTOC – Traffic Data Acquisition Report half-hour summaries were in existence during Alan’s arbitration.  However, like much of the technical information relevant to Alan and Graham’s arbitrations, this was withheld from them under Legal Professional Privilege.

14th March, 1997:  Ted Benjamin writes to Dr Hughes noting:-

“I refer to your letter dated 5 March 1997 in which you indicated that you proposed giving directions in relation to the production of documents. …”

“The above information/documents have been the subject of Freedom of Information requests made by the Claimants. …”

“These files are clearly subject to a claim for legal professional privilege as they were prepared at Telstra’s solicitors [sic] request, for the sole purpose of use in this arbitration. Telstra has not waived its privileged [sic] in these files and is not prepared to release the whole files to the Claimants. However, Telstra is concerned that the Claimants are using these files (amongst other things) as an excuse for not progressing the arbitration.” (GS-CAV 266) 

17th March, 1997:  Graham Schorer writes to Dr Hughes:-

 Enclosed herewith please find a List of Documents now sought from Telstra if you, as Arbitrator, are prepared to direct same to be made available.”

“Please note that this list is part only of the documents required. As soon as I complete the List I will forward same to you.”

“Based on experience, and especially that of other CoT members, I anticipate that when certain documents are made available, it may be then necessary to seek additional documents as the documents supplied might indicate ought to be released. (GS-CAV 267)

1st April, 1997:  Dr Hughes writes to Ted Benjamin:

“I have perused the submissions of each party in relation to the production of further documents by the other.”

“I have noted the offer by Telstra, in its letter of 14th March 1997, to make available certain computer disks requested by the claimant, subject to specific conditions. In this regard, I note Telstra asserts the disks are subject of legal professional privilege.”

“I presume Telstra maintains the position espoused in its letter of 12 February 1997, namely, that there is no basis for making an award in the claimant’s favour and that I should find accordingly. …

“I am not in a position to judge whether Telstra’s claim of legal professional privilege is well founded. I do believe, however, that there is no reason why the disks should not be made available under the conditions proposed by Telstra. This will clearly be the most expeditious manner of progressing this arbitration.” (GS-CAV 268)

Dr Hughes addresses a mirrored copy letter to William Hunt.

2nd April, 1997:  Graham Schorer writes to Dr Hughes:

“I note Telstra still asserts that the requested disks are the subject of legal professional privilege.”

“I still maintain Telstra are wrongly claiming these disks are the subject of legal professional privilege which is in accordance with the legal advise [sic] I have received. …”

“I understand you are only prepared to direct Telstra to supply the requested disks to myself if I totally accept your qualifications which are:

  1. prior to release of the disks to the claimant, the claimant (through his representatives) must acknowledge in writing that by releasing these modified files, Telstra has not waived its privilege in relation to the whole files or any subsequent versions and that the claimant will not raise any argument to the contrary; and
  2. the claimants will treat the files and the information contained in them as confidential and shall only use them for the purposes of this arbitration.

“In order to enable me to finalise my claim and progress my arbitration, I accept the Arbitrator’s qualifications and undertake to treat the files and the information contained in the disks as confidential and shall only use the information contained in the disks for the purpose of this arbitration.”(GS-CAV 270)

9th April, 1997:  Ted Benjamin raises his concerns with Dr Hughes, stating:

“I am not satisfied that the undertaking provided by Mr Schorer in his facsimile of 2 April 1997 adequately responds to the issues raised in your letter of 1 April 1997.

“While Mr Schorer states that he accepts the qualifications set out in your letter he does not positively state that he acknowledges that Telstra is not waiving its privilege in relation to the whole files or any subsequent versions of that he acknowledges that he will not raise any argument to the contrary.

“This matter could be simply addressed by Mr Schorer or Mr Hunt writing to you and stating that, further to Mr Schorer’s letter of 2 April 1997, Mr Schorer:

  1. Acknowledges that by releasing the modified files, Telstra has not waived its privilege in relation to the whole of the files or any subsequent versions and that Mr Schorer will not raise any arguments to the contrary; and
  2. that Mr Schorer will treat the files and the information contained in them as confidential and shall only use them for the purposes of this arbitration.”
    (GS-CAV 271)

15th April, 1997:  Dr Hughes writes to Mr Benjamin:

“I acknowledge receipt of your letter 9 April 1997. I do not necessarily agree that the claimant’s response is inadequate. I would be prepared to accept that the intention of his letter dated 2 April 1997 is to accept the conditions initially proposed by Telstra.

“Given that you have raised concerns, however, I shall ask Mr Hunt to seek a brief written confirmation from his client that he is willing to provide an acknowledgment and undertaking in the terms set in your letter of 9 April 1997.”(GS-CAV 272)

17th April, 1997:  Graham writes to Dr Hughes. Graham reluctantly agrees to Telstra’s terms of 9th April, 1997:

“This letter is not to be taken as an acknowledgement that Telstra does have the privilege it claims nor is this letter to be taken as an acknowledgment to my detriment or the detriment of any of the claimants in this arbitration in respect of any matters the subject of FOI procedures already set in hand or which may later be set in hand.” (GS-CAV 273)

18th April, 1997:  Dr Hughes writes Ted Benjamin:

“Assuming Telstra is stratified with the claimant’s acknowledgment, I would expect Telstra to make the disks available to the claimant within 48 hours as directed in my letter of 1 April 1997.” (GS-CAV 274-A)

Ted Benjamin responds

“On the basis of the acknowledgement set out in that letter and in Mr Schorer’s letter of 2 April 1997, Telstra will make the disks available to Mr Schorer, by no later than close of business 21 April 1997.”(GS-CAV 274-B)

Graham Schorer writes to Dr Hughes:

“I am concerned that Telstra will supply Golden disks with data deleted as suggested in Telstra’s 14 March 1997 correspondence to the Arbitrator.”

“Golden’s discovery upon Telstra does encompass all of the data contained within the disks that Telstra have in their possession.

“Telstra has contested Golden’s right to discovery by claiming legal professional privilege. …

  • Golden has never agreed to Telstra’s condition for Telstra to delete data from the unabridged disks,
  • nor are Golden prepared to accept disks containing an abridged version of the data contained in the original disks.
  • Golden has met all of Telstra’s undertakings on the basis that Golden are provided with the unabridged mirrored copy of the original disks.”(GS-CAV 275)

William Hunt’s file note says:

“On 21st April several times attending Schorer who phoned having sent an example of the disk discovery. Two columns were heavily blacked out rendering the disks of no value at all. Extrapolated from the computer disks on to type they turn out to be useless for this purpose

I suggested that he consider an application to the Court or to the Appeals people.” (GS-CAV 276-A)

24th April, 1997:-  Graham Schorer writes to Dr Hughes in disgust concerning what he received under the Fast Track Arbitration discovery process (see GS-CAV 277-C).

“The Telstra disk supplied to GOLDEN in accordance with your directive has had 9 columns of data deleted, leaving only 6 columns of data of little relevance to GOLDEN.”

Mr Benjamin writes to Dr Hughes, setting out Telstra’s further concerns about Graham Schorer:

“The letter of 14 March 1997, which was copied to Mr Schorer, made it clear that only the modified files would be released to the Claimant.”

“It is therefore incorrect for Mr Schorer to contend that he has met all of Telstra’s required undertakings and should therefore be provided with an unabridged version of the disks.” (GS-CAV 277 )

28th April, 1997:  William Hunt drafts an FOI request for Graham

“The suggested alterations to the draft are:

“Re: Paragraph 1

All agenda and minutes of Telstra meetings related to identifying various methods or ways by which Telstra could investigate and maintain electronic (or other) surveilance [sic] of CoT members’ activities.”

“Re: Paragraph 2

All E-mail messages, notes, diary entries of or to Mr Frank Blount, Mr Doug Campbell, Mr Paul Rizzio, Mr David Krasnostein, Mr Jim Holmes, Mr Michael Montalto, Mr Charlie Zoi and any other Telstra personnel which relate or refer to engagement and/or use by whatever means by Telstra of services by INGE Detective Agency.” (GS-CAV 278-A)

8th May, 1997:  Graham Schorer’s request (under FOI) for all documentation regarding Telstra’s employment of Inge Detective Agency Pty Ltd, re their surveillance of the COT cases, was the result of information the COTs received regarding Telstra having or compiling a file on the COT cases for their internal intelligence network. (GS-CAV 278-B)

Exhibit GS 278-c comprises two pages from the Graham Schorer & Alan Smith Fax Interception Exhibit 3 file, prepared for Allen Bowles in January 2007.  It is quite clear from reading these two pages that Alan and Grahams’ business and/or private residences were under electronic surveillance via Telstra’s unauthorised fax-screening process, at least up to 1999.  The actual documentation that was intercepted via this screening process is attached to Exhibit 3.  It is ironic that the only documents that were intercepted, before being sent to the original destinations are only Telstra-related information

The CAV John Pinnock – Interception of facsimile transmissions LGE 2 targets show electronic surveillance was still in progress in December 200

20th May 1997:  Mr Benjamin writes to Dr Hughes:

“On 4 February 1997 you requested submissions from the parties as to the further documentation they required to be produced.

“Mr Schorer has also sought a direction with respect to the provision of the entire version of the disks 1Schorer.xls, 2Schorer.xls and MGSchor2.xls. Telstra responded to the concerns raised by Mr Schorer on 24 April 1997. However, no ruling has been made.” (GS-CAV 279)

22nd May, 1997:  Dr Hughes responds to Ted Benjamin’s letter:

“I acknowledge receipt of your letter 20 May 1997.”

“On 1 April 1997, I directed that Telstra provide specified computer disks to the claimant, subject to certain qualifications. The qualifications included an undertaking to be provided by the claimant.

“The claimant subsequently provided an undertaking which acknowledged that Telstra had not waived its privilege in relation to the contents of the diskettes. …

“The claimant suggested that Telstra should make an unbridged version of data available to me so that I could decide whether Telstra was entitled to claim legal professional privilege. …”

“The claimant’s query relates to whether the claim of legal professional privilege is well founded. …”

“I propose directing that Telstra produce the disks to me in an unabridged form and provide such co-operation as necessary to enable me to inspect the contents and determine whether the claim for legal professional privilege is well founded.” (GS-CAV 280)

27th May, 1997:  John Pinnock advises Graham Schorer:

“I have recently been advised that Lane Telecommunications business has been purchased from Pacific Star by Ericsson Australia.”

“Lane Telecommunications will remain an independent telecommunications consultancy, forming part of the Services Corporate Business Unit of Ericsson Australia.” 

Comment:

The Ericsson ARE, ARF and AXE inter-exchange equipment used by Telstra to service the exchanges that COT cases’ businesses connected to was the root cause of most of their telecommunications problems. How fortunate was it for Ericsson to have COT cases’ claim fault material readily available, after the purchase of Lanes?

30th May, 1997: Ted Benjamin responds to Dr Hughes’ letter of 22nd May, 1997.

“As stated in my letter of 24 April 1997, the entire disk was prepared at the request of Telstra’s solicitors for the sole purpose of the arbitration. Telstra claims privilege for the entirety of the disk. Telstra is not, and has never asserted that only parts of the disk are privileged. …”

“The analysis was performed for the purpose of assisting Telstra in the preparation of its Defence in this arbitration.”

“In these circumstances, neither Telstra nor its independent legal advisors can see how there can be any serious argument as to whether privilege has been properly been claimed. …”

“However, Telstra is concerned that if you were to view the material you may find it difficult in practice, to put the material wholly out of your mind in making your Award in this arbitration. I am advised that it is for this reason the judges are generally most hesitant to review the documents where a claim for privilege is made, unless these is legitimate cause to doubt the validity of the claim. …”

“Notwithstanding the above, in order to expedite the matter I enclose:

  1. Masked disk sent to Mr Schorer;
  2. Unmasked disk;

I look forward to receiving your ruling.” (GS-CAV 282)

12th June, 1997:  Dr Hughes responds to Ted Benjamin’s letter and states:

“Clearly I need to be satisfied that the diskettes in question were prepared at the request of your solicitors for the sole purpose of this arbitration. Are you able, and do you wish, to provide further evidence in support of your contention that this was the sole purpose for which the diskettes were prepared?” (GS-CAV 283)

13th June, 1997:  William Hunt writes to Dr Hughes concerning his letter to Mr Benjamin:

“We are in receipt this morning of your copy letter dated 12th June, 1997…”

“On information supplied by our client, we believe that Column E of the printout of the diskettes as made available by Telstra is not privilege from disclosure.”

“It would appear that the description is simply a description of documentation which already was in existence before there was any arbitration proceedings on foot.”

“As such it should not be privileged from production.” (GS-CAV 284)

18th June, 1997:  Telstra’s Corporate Secretary, Mr Montalto writes to Alan:

“In those letters you have made allegations as to Telstra’s conduct in relation to a report prepared by Bell Canada International. I am advised that you raised these same allegations in your arbitration claim made against Telstra. I am advised further that you again raised these allegations with the Arbitrator after an award had been delivered and referred those matters to the Telecommunication Industry Ombudsman. Telstra responded to the Ombudsman’s queries in relation to this matter.” (AS-CAV 230)

Telstra to appear before the Senate Estimates Committee – Arbitration

19th June, 1997:  Telstra’s Legal Directorate, on behalf of Ted Benjamin, writes to Mr Schorer under the heading, “Confidentiality Waiver for Senate Estimates Committee”:

“Telstra is to appear before a Special Parliamentary Committee of the Senate on 24 June 1997.”

“Telstra will be asked questions relating to the ‘Casualties of Telecom’ cases. You may have been invited to appear before the committee. …”

“Telstra views its obligation of confidentiality seriously. Telstra will not disclose any confidential information regarding the arbitration process before the parliamentary committee unless you, and the Arbitrator and the Administrator specifically agree.”

The above statement by Mr Benjamin, “Telstra views its obligation of confidentiality seriously,” would be laughable if it wasn’t so serious, considering it was Mr Benjamin, who on 30th November, 1993, freely supplied confidential TIO council COT case information to Telstra’s hierarchy after a TIO Council Meeting. (GS-CAV 285)

23rd June, 1997:  Dr Hughes writes to Ted Benjamin in response to the letter of 19th April 1997, under the heading Confidentiality Waiver For Senate Estimates Committee Schorer Arbitration.” He states:

“I consider it would be inappropriate for me to waive the requirements for Telstra to comply with its confidentiality obligations in this arbitration.

“I consider the requirements for confidentiality to be a fundamental feature of this arbitration and the other COT Case arbitrations. A waiver for the purpose outlined would potentially undermine both the integrity of past rulings and my ability to continue the present arbitration involving Schorer.” (GS-CAV 286)

Comment:

It appears Dr Hughes didn’t understand the integrity of the COT arbitrations were already compromised when he continued to use an Arbitration Agreement he had previously deemed ‘not credible’ (12th May, 1995)

Roger Levy (Telstra Consultant) provides a Statutory Declaration stating:

“one of the things that needed to be done, before work could substantially begin in preparing Telstra’s defence, would be to organise the vast quantities of documentation pertinent to Mr Schorer’s complaints which had been provided to Mr Schorer under the Freedom of Information Act.  Leo Gore, the solicitor of FHP then responsible for this Arbitration, directed me to arrange for this documentation to be indexed in an Excel spreadsheet…” (GS-CAV 287)

Comment

When Mr Levy refers to documents “which had been provided to Mr Schorer under the Freedom of Information Act”, he does not indicate Graham actually received all the documents under FOI that Mr Levy provided to Freehill Hollingdale & Page, i.e., all the information Mr Levy used to produce the Excel files

In Alan Smith’s case, CENTOC – TRAXE data was entered into Excel files (confirming Telstra had sourced that data from somewhere), which also confirms the CENTOC – TRAXE data was available to Telstra’s lawyers when they prepared their Excel files.  Alan only received the Excel files on disk because of intervention by the Senate, 28 months after the end of Alan’s arbitration, and he was never provided with the actual CENTOC –TRAXE data documents, only information indicating the data exist somewhere but was being withheld under Legal Professional Privilege.  Had Alan been given the Excel disk when Telstra conducted their Service Verification Tests, he would have been able to compare the SVT data with the actual CENTOC – TRAXE data.  That comparison may have helped him prove Telstra used Statutory Declarations, sworn by two Senior Telstra Executives, despite those Statutory Declarations containing information known to be false (see Dr Hughes Verification issues LGE 7).  Instead, the false Statutory Declarations were used in Alan’s arbitration, and were not challenged, to the serious detriment of Alan’s claim

24th June, 1997:  Dr Hughes receives a letter from Telstra’s Legal Directorate, on behalf of Ted Benjamin:-

“I enclose a confidential Statutory Declaration of Roger Laurence Levy.”

“This statutory declaration relates to the circumstance of the creation of the Schorer disks. As such, the statutory declaration should not be provided to Mr Schorer. A copy of this letter has been sent to Mr Schorer without the statutory declaration.”

“Given the time that has elapsed since the disks were created, Mr Levy is most appropriate person currently retained by Telstra to make the declaration. For your information, the Group General manager, Mr Steven Black and Ms Joy Geary Special Counsel Dispute Resolution are no longer employed by Telstra. Mr Gore, the solicitor at Freehill Hollingdale & Page (FHP) primarily involved in the matter is no longer employed by FHP.” (GS-CAV 288)

In 2001, renowned Australian FOI Associate Professor Suzanne McNicol provided a legal opinion to the COT cases, stating Telstra’s use of legal professional privilege in these COT technical issues was spurious and illegal.

A Senate Hansard exhibit (GS-CAV 289), on page 77, confirms Senator Carr stated to Ted Benjamin:

“In terms of the cases outstanding, do you still treat people the way that Mr Smith appears to have been treated? Mr Smith claims that, amongst documents returned to him after an FOI request, a discovery was a newspaper clipping reporting upon prosecution in the local magistrate’s court against him for assault. I just wonder what relevance that has. He makes the claim that a newspaper clipping relating to events in the Portland magistrate’s court was part of your files on him.”

Senator SHACHT “It does seem odd if someone is collecting files. That is a matter that has nothing to do with his telecommunications business. It seems that someone thinks this is a useful thing to keep in a file that maybe at some stage can be used against him.” 

Senator CARR“Mr Ward, we have been through this before in regard to the intelligence networks that Telstra has established. Do you use your internal intelligence networks in these CoT cases?

As shown, on 15th March and 8th April, 1993 Telstra was already involved in internal intelligence networking in 1993, when Freehill Hollingdale & Page employed Equity Investigators to investigate Graham’s Schorer’s business affairs.  Facsimile interception files confirm someone with access to Telstra’s network was still electronically intercepting legal correspondence between Graham and his lawyer as late as 199

30th June, 1997:  Graham Schorer writes to Dr Hughes, regarding Roger Levy’s Statutory Declaration letter he received from Telstra 24th June, 1997:

“The contents of Mr Levy’s Statutory Declaration contradicts what I have directly been told by the person who alleges to have created the Excel spreadsheet file.” 

“The delay in my ability to obtain a Statutory Declaration from this person is due to an event taking place before this person will sign a Statutory Declaration.” (GS-CAV 290)

7th July, 1997:  Dr Hughes’ letter to Mr Benjamin shows he is blind to the fact that he has already compromised the integrity of the arbitrations.  Dr Hughes’ statement to Ted Benjamin:-

“Accordingly, I direct that Telstra make available to the claimant, in unabridged form, the materials described in my direction of 1 April 1997,”

appears to have been the reason Mr Levy alters his previous statutory declaration. (GS-CAV 291)

11th July 1997:  Ted Benjamin writes to Dr Hughes:-

“I attach a supplementary statutory declaration of Roger Levy.

“The declaration corrects the period for which Mr Levy has been a consultant to Telstra and seeks to clarify the time at which work on the disks commenced.” (GS-CAV 292-A)

“I, ROGER LAURENCE LEVY … do solemnly and sincerely declare:

  1. I commenced at Telstra on 15 November 1994, not in October 1994 as stated in paragraph 2 of my earlier declaration. …
  2. When I commenced at Telstra, rudimentary work had already commenced compiling the Excel spreadsheet. I do not know precisely when that work commenced.” (GS-CAV 292-B)

Ted Benjamin was no stranger to discrepancies in Statutory Declarations signed off by Telstra witnesses during the COT arbitrations.  On 21st March, 1997 Mr Pinnock wrote to Mr Benjamin stating

“I would appreciate your advice concerning the matters raised by Mr Smith, in particular and arising out of your letter of 23 December 1994 to Dr Hughes:

  • any explanation for the apparent discrepancy in the attestation of the witness statements of Ian Joblin
  • were there any changes made to the Joplin statement originally sent to Dr Hughes, compared to the signed statement?”

(GS-CAV 293-a)

The matter concerning why Telstra allowed Freehills, its external lawyers, to sign a Statutory Declaration without the witness being present was never addressed by Dr Hughes during Alan’s arbitration.  That this serious breach of law was never correctly investigated, in Alan’s arbitration, left the door open for Telstra and its lawyers to offend again.  Could some Telstra witness statements, submitted during Graham’s arbitration, have also been signed by Freehills, before being forwarded onto the witnesses to sign

Exhibit (GS-CAV 293-B) is a letter dated 26th June, 1998 from Senator Bill O’Chee to Telstra’s Graeme Ward, regulatory and external affairs, stating

“I note in your letter’s last page you suggest the matter of the alteration of documents attached to statutory declarations should be dealt with by the relevant arbitrator. I do not concur. I would be grateful if you could advise why these matters should not be referred to the relevant police.

There was no transparent outcome to this

15th July, 1997:  William Hunt responds to Dr Hughes’ letter to Telstra of 7th July, 1997 requesting Dr Hughes to grant more time for his client to “make appropriate submissions”. (GS-CAV 294)

16th July, 1997:  Ted Benjamin writes to Dr Hughes stating:

  1. “Telstra notes your direction and that you will provide the unabridged version of the disk to the Claimant;
  2. “In making that direction you have not made any ruling as to whether Telstra’s claim that the three computer files, namely 1schorer.xls, 2schorer.xls and mgschor2.xls are privileged is well founded. You have further made no judgement as to whether the individual documents described in those files are relevant to the proceedings or whether the individual documents could be subject to a claim of legal professional privilege.(GS-CAV 295)

16th July, 1997:  John Pinnock explains his concern to William Hunt:

“Lane is presently involved in arbitrations between Telstra and Bova, Dawson, Plowman and Schorer. The change of ownership of Lane is of concern in relation to Lane’s ongoing role in these arbitrations.

“The first area of concern is that some of the equipment under examination in the arbitrations is provided by Ericsson.…

“The second area of concern is that Ericsson has a pecuniary interest in Telstra. Ericsson makes a large percentage of its equipment sales to Telstra which is one of its major clients.

“It is my view that Ericsson’s ownership of Lane puts Lane in a position of potential conflict of interest should it continue to act as Technical Advisor to the Resource Unit. …

“The effect of a potential conflict of interest is that Lane should cease to act as the Technical Advisor with effect from a date shall [sic] be determined.” (GS-CAV 296-A)

On 9th March, 1995 the TIO appointed Lane as the Technical Resource Unit for the TIO-administered COT arbitrations (GS-CAV 296-B).  During the next two years, Lane assessed the COT claimants’ technical claims but, during the same period, Lane was purchased by Ericsson as stated previously.  Alan and Graham maintain that, once this contact with Ericsson had occurred, the TIO was obliged to arrange for the COTs’ technical claims to be re-assessed to ensure Lane had not hidden any known problems with the Ericsson AXE exchanges Graham and Alan’s businesses were routed through.

Lane prepared the draft of their Cape Bridgewater Report on 6th April, 1995 before Paul Howell of DMR Canada arrived in Australia.  In the final DMR and Lane Cape Bridgewater Report (dated 30th April, 1995), 22 of the 23 faults discussed relate to problems Alan experienced before 1994 even though, when David Read of DMR had visited Cape Bridgewater on 5th April, 1995 Alan showed him Telstra’s list of 72 complaints registered by various Cape Bridgewater residents between February and August 1994.  None of Alan’s up-to-date 1994/95 evidence of the ongoing billing problems associated with the Cape Bridgewater RCM system, which routed through the Portland Ericsson AXE exchange equipment, were ever addressed.  What was the point of the TIO commissioning a Technical Unit to view the ongoing problems experienced by claimants like Alan and Graham, if the Technical Consultants only addressed historical problems and not the problems still affecting the COT cases

17th July, 1997:  Freehill Hollingdale & Page provides its legal opinion to Sue Laver, Telstra’s Legal Directorate, stating:

“We refer to your instructions to advise whether the database of information produced for the purpose of preparing Telstra’s defence in the Schorer Arbitration and which is contained on computer disk (the ‘Telstra Disk Document’) is subject to legal professional privilege.” (GS-CAV 297)

24th July, 1997:  Graham and Alan are not the only ones with nagging doubt about the true independence of Lane Telecommunications.  In John Pinnock’s letter to Ann Garms, he states:

  1. “By letter dated 14 November 1995 I advised you that I did not have the power to dismiss the Arbitrator or the Resource Unit. I advised that pursuant to the Commercial Arbitration Act 1984 (Vic) the Supreme Court has the power to remove an arbitrator in certain circumstances. …”
  2. “In November 1995 you had concerns regarding the independence of Lane. By letter dated 6 November 1995, having made considerable enquiries of the relevant parties on the issue of independence, I advised you of my view that your concerns regarding the independence of Lane were unfounded. …”
  3. “On 8 March 1995 you advised the TIO that Mr David Read of Lane was unacceptable on the basis that he was a former employee of Telecom. However on 13 March 1995 you advised the TIO that ‘after meeting with Mr David Read I feel confident that he and his company Lane Telecommunications Pty Ltd possess the necessary integrity, professionalism and expertise to do justice to the assessment of our Claim.’” (GS-CAV 298)

Mr Pinnock did not reveal to Ms Garms that Alan Smith had provided him irrefutable evidence confirming David Read acted either on his own volition, or in concert with DMR (Canada), when addressing only 23 of Alan’s 200 claim (fault) documents.  (See Alan Smith CAV Chronology file).

25th July, 1997:  Dr Hughes writes to Ted Benjamin

“Taking into account the matters which you raised, I direct that in addition to the files embraced by my direction of 7 July 1997, Telstra make available to the claimant its current version of those files on or before 29 July 1997. (GS-CAV 299)

Dr Hughes also writes to William Hunt:-

“I refer to your letter of 15 July 1997 and would be pleased to receive your submission regarding my proposal for the future conduct of this arbitration by 5.00pm on 30 July 1997.” (GS-CAV 300)

29th July 1997:- Ted Benjamin supplies Dr Hughes with the Excel disk and states:-

“I note that there may be duplication in the summaries contained in the disk. Like the earlier disk supplied to Mr Schorer these files are Telstra’s working summaries of the documents. Those summaries do not stand in the place of any formal document provided to you in the course of this arbitration.(GS-CAV 301)

7th August 1997:  Graham Schorer faxes William Hunt a number of printout samples extracted from the first and second disks received from Telstra.  These examples (GS-CAV 302-A), do not compare with the original Excel disk information (GS-CAV 302-B) Alan Smith downloaded when he received his files in October 1997, and which confirm Telstra regularly checked Alan’s service provided by using the CENTOC – TRAXE traffic reports

Comparing his material to Graham’s, Alan believes Telstra provided Alan with the correct, complete Excel spreadsheets because they were released 28 months after his arbitration and so Telstra did not feel they posed any sort of threat.  The comparison between Alan and Graham’s spreadsheets reveals Alan’s spreadsheets include more details than Graham’s. Alan’s spreadsheets include columns recording when the fault was logged, who responded to the fault and when, while Graham’s spreadsheets don’t include this information, indicating Graham’s may have been edited before release.  If Telstra had revealed it was using CENTOC – TRAXE reports to measure the traffic through the 48 exchanges routed through to the North Melbourne exchange, these reports might have shown how bad the congestion still was.

18th August, 1997:  Sister Maureen Burke, IBVM, principal of Loreto College, Ballarat, writes to Alan:

“Thank you for the opportunity to read the working draft of your book and to view your promotional video.

“Only I know from personal experience that your story is true. I would find it difficult to believe. I was amazed and impressed with the thorough detailed work you have done in your efforts to find justice.” (AS-CAV 231-A)

Alan first met Sr Burke in March 1992, when she was attempting to organise a trip to the holiday camp for a group of underprivileged children from the Ballarat region. When she had been unable to contact Alan by phone, over a couple of weeks, she decided to drive the three hours to visit instead.  She arrived just after Alan’s partner (at that time), Karen Gladman, handled a phone call from an irate singles club patron who had also been trying to ring the camp for weeks.  Karen had just worn the full brunt of this man’s fury and was in the office, in tears.  After speaking to Karen, Sr Burke suggested Karen needed to see a counsellor and that it would be in the best interest of both of them if Karen left Cape Bridgewater.  Sr Burke believed she could arrange counselling for Karen in Warrnambool.  Over the next two or three years from then on, Sr Burke was instrumental in keeping Alan calm and helping him control his anger towards Telstr

Twelve months after Sr Burke’s charity camp, another sister from Loreto College (Sr Karon Donnellon) attempted, unsuccessfully, to phone Alan to arrange another camp. She finally wrote

“During a one week period in March of this year I attempted to contact Mr Alan Smith at Bridgewater Camp. In that time I tried many times to phone through.

“Each time I dialled I was met with a line that was blank. Even after several re-dials there was no response. I then began to vary the times of calling but it made no difference.”(AS-CAV 231-B)

Alan received some similar 80-plus letters over the years, from people with similar complaints to Sr Donnellon, but they appear to have been withheld from DMR and Lane (the TIO-appointed consultants) during Alan’s arbitration, even though he submitted them to the arbitrator as supporting material.  He also covered his Letter of Claim with a Statutory Declaration as per clause 6 of the Arbitration Agreement, which states

“All written evidence shall be in the form of an affidavit or statutory declaration.

  • Why would DMR and Lane state, in their report, “A comprehensive log of Mr Smith’s complaints does not appear to exist”? ( AS-CAV 322-C )

If DMR and Lane did not see the letters and Alan’s comprehensive log of fault complaints, who withheld this information from them?

11th August, 1997:  On behalf of Telstra’s John Armstrong, Telstra’s Legal Directorate writes to the Commonwealth Ombudsman, John Wynack, stating:-

“Further, as directed by the Senate, Telstra has sought advice as to its claim for privilege.  A copy of that advice is enclosed…” (GS-CAV 303-A)

In an advice document, Rod Kearney states, at point 3:

“As the FOI delegate making the decision, I considered the spreadsheets were privileged for two reasons, firstly, because they were created solely for the purposes of developing Telstra’s defence to Mr Schorer’s claim under the Fast Track Arbitration Process, and secondly, because the spreadsheets were new documents which had been created to provide advice to Telstra’s solicitors as to the content and relevance of the documents in the context of Telstra’s defence. … I decided that legal professional privilege applied.” (GS-CAV 303-A)

We do not know whether Mr Kearney is qualified to make such legal professional privilege decisions but exhibit GS-CAV 303-B is an internal Telstra memo, dated 21st January 1994, and notes, under the heading, “Request for Telecom Records”:-

“The attached request is referred for your action. The author of the request, Simon Chalmers, is from Freehill Hollingdale & Page, Telecom’s solicitors. I suggest that you action this request not just for the two customers mentioned but also for Mr G Schorer and Mr A Smith. Information that has previously been sent to the Viewing Room will be accessed from there. It is important to note that material that is not produced for this request cannot be used in Telecom’s defence.

Exhibit GS-CAV 303-C is an earlier internal Telstra fax, dated 17th January, 1994 from Simon Chalmers to Duncan Wallace stating, under the heading “Requests for Telecom records – Mr Alan Smith/Mr Graham Schorer”

“I need your assistance to ensure that all documents, memos, notes, outputs of network monitoring or testing, and all other records (‘records’) concerning Mr Alan Smith’s or Mr Graham Schorer’s telephone services…

When Rod Kearney wrote to Mr Wynack (see 11th August, 1997), it seems he was not aware technical information, regardless of who prepares it, does not fall under legal professional privilege.  Graham should have had access to the same technical information Telstra’s solicitors used to prepare Telstra’s defence

14th August, 1997:  Dr Hughes writes to William Hunt

“Mr Schorer has commented that at best an interim technical evaluation could only proceed ‘on the evidence {submitted} to date by Telstra’. I do not agree with this observation. …

“The first step in the process would be for the resource unit to assess the nature and content of material submitted to date, prior to referral to the technical expert for evaluation.” (GS-CAV 304-A)

“Accordingly, Idirect that

  1. the evidence submitted by the parties to date now be referred to the Resource Unit;
  2. the Resource Unit examine the materials submitted to date and inform me whether, in their opinion, further material should be produced by either party before a technical evaluation takes place;
  3. subject to (b), or may the materials submitted by the parties be referred to Mr Howell for technical evaluation;
  4. noting that Mr Howell may not be able to reach a conclusive opinion the progress of this matter be reviewed by me upon receipt of an interim technical evaluation report from Mr Howell;
  5. in the meantime, Telstra advise me by 20 August 1997 whether any modifications to the disks enclosed with its letter to me of 29 July 1997 involved the deletion of any material and, if so, specifying what material was deleted.”

COMMENT:

To the casual observer, Dr Hughes’ letter may seem quite reasonable, but to the COT claimants who suffered because Dr Hughes was too weak to ensure Telstra acted honestly and the Resource Unit remained independent, it is a smoke screen.  Dr Hughes and the people this letter was copied to (except, perhaps, Ted Benjamin) must have known that, in his incomplete Draft Report dated 30th April, 1995, Paul Howell advised Dr Hughes

“One issue in the Cape Bridgewater case remains open, and we shall attempt to resolve it in the next few weeks, namely Mr Smith’s complaints about billing problems. Otherwise, the Technical Report on Cape Bridgewater is complete.

Mr Howell added he would “attempt to resolve it in the next few weeks”. (See CAV Relevant Information file, Alan Smith, exhibits 5 and 6.)  Dr Hughes forwarded the same report to Alan Smith, with the same date but without the reference to the report being incomplete, and instructed Alan to respond within five days

Dr Hughes’ statement that “Mr Howell may not be able to reach a conclusive opinion…” would also be laughable, if it was not such a hollow statement

18th August, 1997:  Dr Hughes’ instructs Sue Hodgkinson:

“You have previously been forwarded a copy of my letter to Mr Hunt dated 14 August 1997.

“I now wish to formally instruct you to examine the material submitted to date with a view to submission, as soon as practicable, of the technical materials to Mr Howell for technical evaluation.” (GS-CAV 304-B)

As shown above, see 2nd August, 1996, Ms Hodgkinson knowingly misled Dr Hughes in her memo regarding Alan Smith’s arbitration.  It is unbelievable the TIO’s Office did not severely reprimand Ms Hodgkinson for her gross misconduct in Alan’s arbitration, and it is beyond contempt for the TIO to compound this incident by allowing Ms Hodgkinson to assess the validity of inter-procedural documents in Graham’s arbitration.  Did Ms Hodgkinson hide relevant documents from Dr Hughes in Mr Schorer’s arbitration at the detriment of his claim

Exhibit GS-CAV 304-C is a combined list comprising only one third of Alan Smith’s claim documents submitted into arbitration and a list of Telstra’s defence documents (that assessed those claim documents on this restricted list).  This list was attached to the DMR and Lane report of 30th April, 1995 and provided as a draft for Dr Hughes to assess

Exhibit GS-CAV 304-D is the same list of documents but includes an additional 13 of Alan’s claim documents, which were supposed to have also been assessed by Telstra in their defence and DMR and Lane in their evaluation of Alan’s claim and Telstra’s defence of his claims.  This second list was provided to Alan to convince him that FHCA passed ALL of Alan’s claim documents on to Telstra, DMR and Lane, when the list at exhibit GS-CAV 304-C proves otherwise

Alan Smith’s CAV Relevant Information file shows that, in both DMR and Lane reports, dated 30th April, 1995, all the technical information is exactly the same – word for word.  A further comparison of these two reports (when read in conjunction with Telstra’s defence) confirms none of the 13 extra documents were assessed. Someone from FHCA acted unconscionably in withholding Alan’s documents from being addressed by Telstra and DMR and Lan

Alan has matched these lists to his Telstra fax/phone account to determine which claim documents he faxed to Dr Hughes and which were then copied on to Telstra under the agreed rules of supply.  He discovered Telstra did not receive at least 41 separate sets of information that Alan faxed to Dr Hughes’s office

Exhibit GS-CAV 136 confirms an arrangement existed between Telstra, Warwick Smith and FHCA, to vet arbitration documents prior to being delivered to Dr Hughes.  Are we to assume that some of the 41 documents were vetted and then destroyed before reaching Dr Hughe

Again, Mr Pinnock acted unethically when he allowed FHCA, DMR and Lane to continue as the official Resource Unit in Graham’s arbitration, once Alan provided the evidence he did

20th August, 1997:  John Pinnock writes to Graham

“At the TIO meeting held at Minter Ellison on Tuesday 29 July 1997, it was agreed that a new technical advisor to the Resource Unit would have to be appointed to your arbitration, to replace Lane Telecommunications. The new advisor will assist Mr Paul Howell.” (GS-CAV 305)

Alan says Derek Ryan first suggested he see lawyer Ben Dunn.  After that first visit, Mr Dunn decided he would help Alan, pro-bono, to prepare a brief for presentation either for Senator Alston or the Telstra Board

20th August 1997:  Ben Dunn writes to Alan confirming his belief that Alan was “less than fairly dealt with by Telstra and the arbitrator”.

Not long after he wrote this letter, Ben Dunn would not agree to meet Alan, nor would he return Alan’s phone calls.  Even his office secretary seemed to be annoyed with him on one occasion when Alan had travelled from Portland only to discover that Mr Dunn couldn’t be found. (AS-CAV 231)

Alan passed a copy of Mr Dunn’s letter to Steve Boswell (Senator Boswell’s son), who was working at the time as a young solicitor in Minter Ellison’s Sydney office.  Steve later phoned Alan to offer assistance, but Alan decided not to accept, as by this time, Senator Boswell and Senator Alston had left him off the Senate’s litmus test A-list investigation (discussed in October below) into the COT arbitrations and he didn’t want to cause issues between father and so

25th August, 1997:  Dr Hughes appears to have given up regarding the disk issues, when he states to Ted Benjamin

“Following my letter to Mr Hunt of 14 August 1997, a copy of which was forwarded to you, I had subsequent discussions with Mr Hunt in which he requested on behalf of his client that the unmodified original diskette, which was the subject of my order of 7 July 1997, be made available. The purpose of the request is to enable the claimant to compare the original diskette as supplied which was subjected to modification by Telstra.

“In view of my directions of 14 August 1997, which I consider to be adequate, I do not propose directing that you comply with this request. At the same time, it may assist in the arbitration process if you were to comply with the request.” (GS-CAV 306)

27th August, 1997:  Graham writes to John Wynack of the Commonwealth Ombudsman’s Office

“It would appear that the Arbitrator has failed to grasp the significance to GOLDEN in not being supplied by Telstra with the unabridged, unmasked, unmodified original diskette containing the Excel files in accordance with his original directive.” (GS-CAV 307)

John Wynack responds to Mr Schorer

“I did, however, inform Ms Laver that I would pass on to you the above information and also Ms Laver’s opinion that she believes that Telstra has complied with the Arbitrator’s directions in respect of the computer files.” (GS-CAV 308)

16th September, 1997:  Graham Schorer writes to John Pinnock.  This letter is one of a number of letters refusing the TIO’s pressured to accept Paul Howell of DMR Group, Canada, as the TIO-appointed Technical Advisor to Graham’s arbitration. (GS-CAV 309)

John Pinnock responds to Graham

“I look forward to receiving a nomination from you for a replacement for Lanes, as soon as possible

I remind you, however, as noted in the Arbitrator’s letter of 14August 1997 to your solicitor, that the Resource Unit currently comprises Mr Paul Howell.” (GS-CAV 310)

John Pinnock addresses the Senate, Part 

26th September,1997:  Mr Pinnock writes to The Senate Environment, Recreation, Communications and the Arts Legislation Committee, regarding many deficiencies in the COT arbitration process

“[O]ne of the potential deficiencies should have been obvious from the outset. …

“In the process leading up to the development of the Arbitration procedures, the Claimants were told that documents would be made available under the Freedom of Information Act. …

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

“Firstly, the arbitrator had no control over the process, because it was conducted entirely outside the ambit of the Arbitration Procedures. …

“Finally, as I have remarked previously, the Arbitrations have been bedevilled by the inability of the parties to treat the disputes as matters of a commercial nature and to put behind them the atmosphere of mutual suspicion and mistrust that had built up over a long period of time.” (AS-CAV 232-A)

Exhibit AS-CAV 232-B contains pages 109 and 110 from the Senate Hansard of 26th September, 1997 – the day Mr Pinnock discussed these issues.  Observe the following questions raised by Senator Schacht at this Senate Hearing and the answers given by both Ted Benjamin and Mr Pinnock

Senator SCHACHT“Are you also a member of the TIO board?

Mr Benjamin“I am a member of the TIO council

Senator SCHACHT“Were any CoT complaints or issues discussed at the council while you were present

Mr Benjamin“There are regular reports from the TIO on the progress of the CoT claims.

Mr Pinnock addresses the Senate, Part

From 23rd November, 1993 when Graham Schorer signed the Fast Track Settlement Proposal (FTSP), he continued to lodge FOI requests for all of Bell Canada International’s (BCI) working notes, data and test information related to the two Telstra-co-ordinated BCI tests of the North Melbourne and associated telephone exchanges.  No relevant material was ever provided during his arbitration.  The Alan Smith CAV Chronology file and supporting material also show that although Alan lodged numerous similar FOI requests, he was never provided with any CCS7 data for 055 267211 (Cape Bridgewater PTARS) or working notes showing how BCI arrived at its findings in the Cape Bridgewater study during his arbitration, either

Exhibit 8 in Graham Schorer’s CAV Chronology file is a copy of a Senate Hansard Report, from pages 94 to 152.  On pages 99 to 100 (see also exhibits GS-CAV 312-A to 323 & GS-CAV 312-B), Mr Pinnock discusses the problems the COT claimants encountered when they attempted to access documents from Telstra.  Yet, he fails to mention Alan Smith proved to Mr Pinnock’s predecessor, Warwick Smith, there were many instances of Telstra’s unethical behaviour during the COT arbitrations, including altering and changing information on requested documents in an attempt to minimise Telstra’s liability.  This Senate Hansard Report is relevant to Graham’s arbitration, as well as Alan’s, because it shows Mr Pinnock was very selective regarding what he chose to reveal to the Senate.  In relation to problems with the arbitration, the TIO implied, wherever possible, that the COT claimants were as much at fault as Telstra

On page 100 of the Hansard Report, in relation to arbitration technical reports – the most important issue in the entire COT arbitration process – Mr Pinnock states:

“Those delays have also been exacerbated by extensive arguments by both sides, but particularly by the claimants, as to the accuracy and merits of the technical evaluation and financial evaluation of reports produced by the resource until, so much so, I might say, that the resource unit has almost been in danger of being dragged into the fray when the original intention of the process was for it to be exclusively and really a matter for advice to the arbitrator.” (GS-CAV 312-B)

All the health and financial problems that followed for 10 years after the Schorer and Smith arbitrations may well have been avoided if Mr Pinnock had told the Senate, on 26th September ,1997, that:-

  • Someone with access to the arbitration agreement secretly altered some sections of the document, after the original version was provided to Graham’s legal advisors for assessment, without ever advising any claimants of these changes, and
  • These alterations exonerated the resource unit and the special counsel from any liability arising from conscious negligence, to the detriment of both Alan Smith and Graham Schorer. This removed any incentive for the resource unit and the special counsel to look after Graham and Alan’s common interests.

QUESTION 

Why did Mr Pinnock tell the Senate the resource unit was “in danger of being dragged into the fray”?  He knew, on 11th July, 1994, the TIO and Telstra agreed together, without consulting the claimants, the resource unit would assess arbitration documents and decide which were relevant before passing them (or not) to the arbitrator (See Graham Schorer CAV Relevant Information file exhibit 13).  This decision immersed the resource unit in the arbitration process (i.e., “the fray”) almost from the very beginning

For the TIO to allow Telstra to use the resource unit as a second arbitrator for the vetting of what information the arbitrator should see and/or not view, contravenes the Commercial Arbitration Act 1984 (see exhibit-GS-CAV 313 unless all parties have agreed to this in writing.

QUESTION 

How could Mr Pinnock tell the Senate

“perhaps the most difficult issue, and one that has bedevilled the arbitrations almost from the beginning, was the inability of the parties to treat these disputes as matters of a purely commercial nature” and the parties to the arbitration “were unable to put behind them the attitude of mutual suspicion and mistrust”

His predecessor, Warwick Smith, was advised on 18th April, 1995:-

“It is unfortunate that there have been forces at work collectively beyond our reasonable control that have delayed us in undertaking our work.” (See Alan Smith – Warwick Smith Target)

QUESTION 3

Why didn’t Mr Pinnock inform the Senate that if his predecessor had investigated who “these forces at work” were, that were interfering in this Government-facilitated arbitration process, and eliminated those forces in 1995, the COT arbitrations might have stood a better chance of bringing some sort of justice to the claimants!

QUESTION 4

When Mr Pinnock was addressing the Senate in relation to Alan Smith’s case, why didn’t he advise the Senate he knew Commonwealth Ombudsman Ms Philippa Smith wrote to Frank Blount, Telstra’s CEO, on 6th May, 1994 noting:

“it was unreasonable for Telecom to impose a condition for release of certain documents that the participants needed to make further assurances that they will participate in the FTSP; and

“it was unreasonable for Telecom to require the participants to make the assurances while Telecom was considering the agreement related to the FTSP (the Agreement) and thereby denying the participants the opportunity to consider the rules that Telecom wished to have included in the Agreement.” (GS-CAV 188)

QUESTION 

Why didn’t Mr Pinnock tell the Senate that:

  1. Derek Ryan of DMR Corporate wrote to Mr Pinnock, as the administrator of Alan Smith’s arbitration, on 2nd December, 1995 advising

“I worked all day Saturday and Sunday with Alan Smith trying to interpret the FHCA report. After this work I considered that the report was incomplete as the calculations of the FHCA loss figures were not included in their report. …

“On 17 May I telephoned John Rundell and he stated that he was unable to discuss anything with me until the appeal period had expired. During that telephone conversation I told him that I was unable to recalculate the FHCA figures and that I felt that the report was deficient in this regard, he then stated that he understood my problems and that FHCA had excluded a large amount of information from their final report at the request of the arbitrator.”

  1. John Rundell later wrote to Mr Pinnock (13th February 1996) confirming he advised Mr Ryan “that the final report did not cover all material and working papers”

QUESTION 6

Why didn’t Mr Pinnock tell the Senate he knew the technical resource unit’s draft report regarding Alan Smith’s case stated extra weeks were needed to complete the work and this request was mischievously deleted from the draft, and the draft was presented as a final report (in the same way that the FHCA Financial Report was presented as a final report

Mr Pinnock also states

“On an objective and dispassionate analysis in my view of the procedures, there are nevertheless benefits that have been derived, particularly for the claimants, although I am the first to admit that they do not necessarily agree with my view on these matters”

QUESTION 

Why didn’t Mr Pinnock tell that Senate that, long after the arbitration process was supposed to fix the claimants’ telecommunications problems, the businesses of at least two of the claimants, Graham Schorer and Alan Smith, continued to suffer from exactly the same problems that led them to arbitration

QUESTION 

In Alan Smith’s case

  1. Telstra’s Peter Gamble’s witness statement noted:-The SVT, carried out in September 1994, showed that the service passed the Customer Specific Line Tests and the Public Network Call Delivery Tests. My overall conclusion based on the analysis of the selected performance parameters outlined above is that in the periods covered by these investigations (which commenced in July 1991 and concluded in September 1994), Mr Smith’s service met appropriate performance levels and therefore appeared, in my opinion, to be operating satisfactorily” and,
  2. On page 23 of the arbitrator’s award, at point (j), the arbitrator states:-

“Another important statement on behalf of Telecom is made by Peter Henry Gamble who was involved between July 1991 and September 1994 in a series of investigations and analyses of the claimant’s complaints. His overall conclusion was that during the period in question, the claimant’s service ‘… met appropriate performance levels and therefore appeared, in my opinion, to be operating satisfactorily’.” (see Dr Hughes Verification Issues LGE 7

What would the arbitrator have put at this point in his award if he had known Mr Gamble’s opinion was based on information known to be false, including the fabricated September 1994 SVT tests

QUESTION 

On page 101 of this same Senate Hansard Report exhibit, Mr Pinnock notes

“Turning to what I regard as the benefits – firstly under the fast track arbitration procedure, the claimants had the significant benefit of Telstra effectively waiving any statutory immunity it may have otherwise been entitled to plead in legal proceedings.”

If Telstra were waiving their statutory immunity why, in Alan Smith’s case, on page 16 of the arbitrator’s award, at point (a), would the arbitrator note Telstra referred to statutory immunities, e.g.

“Statutory Immunities: In its defence documentation, Telecom makes reference to statutory immunities contained in the Telecommunications Act 1975 section 101 and the Australian Telecommunications Act 1989 section 30.”? (GS-CAV 314)

On page 127 of this same Senate Hansard Report Senator Boswell asks John Pinnock:

“Could Mr Schorer make a request that he wants disclosure of the documents?

Mr Pinnock“Yes. As long as he can say, ‘I want the arbitrator to order Telstra to produce documents relevant to my arbitration’, he is entitled to make such an application. It would have to have some degree of specificity, obviously. The arbitrator is not going to be able, with confidence, to make an order that Telstra produce all relevant documents. One would need some boundaries to the request. However, the power has always been there. I might say, Senator, that in the early days when Mr Schorer and I were discussing this matter, we clashed very much on this point.”

Senator BOSWELL“In what way

Mr Pinnock “I put to Mr Schorer precisely what I put to the Senate committee today about the deficiencies of the FOI process. I said that I was of the strong view that applications for documents ought to be made under the arbitration procedures and, equally forcefully, Mr Schorer put to me that the CoTs had always been promised by all concerned that access to documents would be made and that the best way to do that was under FOI.

Senator SCHACHT“I ask Mr Wynack: with all the requests that you have made to Telstra on FOI, have you felt that there has been any deficiency in your powers, even though it may be a belated process, to finally get the information that you need?

Mr Wynack “I do not believe that there is any deficiency in our powers. I think that our extremely limited resources have limited the processes we can apply to investigations.” (GS-CAV 315)

What Mr Wynack didn’t disclose to Senator Schacht, is that, on 22 April, 1997 he wrote to Telstra’s John Armstrong, Legal Directorate Office, stating

“I refer to your letter of 21 April 1997 to Alan Smith concerning the assessment of the amount of compensation payable to Mr Smith.

“I note with concern that you sent a copy of that letter to the TIO. Please inform me as soon as possible why you have made the TIO privy to what I understood to be a confidential process involving Mr Morgan, Telstra, Mr Smith and the Ombudsman.” (GS-CAV 317)

It is clear from the content of Mr Wynack’s letter that John Pinnock was privy to confidential information that had nothing to do in his role as TIO.  Remember, Dr Hughes wrote to John Pinnock, on 21st June, 1995 and attaching a letter from Alan Smith on 20th June, 1995 confirming Telstra knowingly used flawed defence documents in Alan’s arbitration.  (See Dr Gordon Hughes and John Pinnock Conspiracy to Pervert the Course of Justice LGE 5

However, Dr Hughes 21st June, 1995 letter of concern regarding this matter was only copied to Mr Pinnock and Telstra

It appears, from Mr Wynack’s letter of 22nd April, 1997 and Dr Hughes’ letter of 21st June, 1995, John Pinnock, Dr Hughes and Telstra had a three-way relationship that Mr Pinnock did not disclose to the Senate

4th October, 1997:  John Wynack writes to Telstra regarding Alan’s FOI request of 18th October, 1995 which has still not been fully responded to.  Mr Wynack asks Telstra to inform him “of the actions which Telstra has taken to ascertain the whereabouts of the specific the file which Ms Gill described as the ‘arbitration file’”. (AS-CAV 233)

8th October, 1997:  The Hon Peter Costello writes to Alan

“I am quite seriously concerned about the allegations you make regarding the Telecommunications Ombudsman, Telstra Senior Management, the Arbitrators and the Resources Unit attached to the Arbitration. Any information you have of allegations of impropriety should be brought to the attention of Senator Alston and the Australian Federal Police.” (AS-CAV 234)

When Alan contacted the parties as suggested by Mr Costello, they all declined to become involved

23rd October, 1997:  Senator Schacht’s office faxes Senator Ron Boswell the proposed terms of reference for the Senate Working Party, for their investigation into the COT arbitration FOI issues.  This document shows two lists of unresolved COT case FOI issues to be investigated:  five on Schedule A and 16 names of Schedule B.  Graham Schorer’s name is on Schedule A, while Alan Smith’s name is on Schedule B (GS-CAV 318-A). This list states:

“1.       The working party must develop a list (“List”) of all document which

  • were reviewed by Telstra in the course of preparation of its defence;
  • were brought into existence after Telstra prepared its defence, but which would in the opinion of Telstra’s solicitors have been reviewed by Telstra if it were preparing its defence today; or
  • were lost or destroyed before Telstra prepared its defence, but which would in the opinion of Telstra’s solicitors have been reviewed by Telstra if they had been in existence at the time Telstra was preparing its defence,

including documents in relation t

  • the:
  • arbitration cases
  • responses to requests under FOI; and
  • appeals in respect of cases already decide

described in Schedule A to these terms of reference. 

  • if the Working Party becomes aware of relevant case additional to those listed in the Schedule, or relevant documents, the Working Party will advise the Senate Environment Recreation, Communication and the Arts Legislation Committee in writing of these cases or documents and the reasons why the Working Party considers they are relevant. The Working Party will not proceed with any investigation of such additional cases or documents unless and until the Senate Environment, Recreation, Communications and the Arts Legislation Committee so agrees in writin
  • the Senate Environment, Recreation, Communications and the Arts Legislation Committee reserves the right to amend the Schedules to this document.

It is important to point out in the heading of the Senate Schedule, the 16 other COT case names are shown in the Senate Schedule B as described below:

“Unresolved Matters, Including The Amount Of Settlement Offered Or Paid In Respect Of Persons Listed In Schedule B.”

Graham was told the five claimants in list A were to be investigated first, as they were to be used as a ‘litmus test’:  it would take too long to investigate all 21 cases, including the 16 on the B list, and that would impact on the privatisation of Telstra.  It has since been proved Graham never received anywhere near the number of FOI documents he should have received in response to his various FOI requests, even with the Senate Working Party’s involvement.  If the Government of an alleged democratic country couldn’t obtain documents from a Government-owned Corporation like Telstra, then what hope did any of the COT cases and the arbitrator have of obtaining documents?

IMPORTANT

Alan Smith travelled to Parliament House in Canberra before the A list was even formed and saw how shocked Mr Pinnock was when Graham Schorer introduced Alan to him during a breakfast meeting in the motel.  Alan believes his name was left off the A list as a direct result of his comment to Mr Pinnock (during this breakfast meeting) that he would at last be able to have the unlawful conduct by the arbitrator, Telstra and the resource unit properly addressed by the pending Senate investigation

Mr Pinnock could not risk a Senate investigation into Alan’s FOI issues, as that would have uncovered Mr Pinnock and Dr Hughes’ agreement, during January and February 1996, to hide the very same FOI issues from the Institute of Arbitrators and Graham Schorer’s Directions Hearing on 27th February, 1997.  Mr Pinnock could not allow Alan Smith’s FOI issues to be investigated by the Senate because an investigation would show FOI documents Alan did not receive, during his arbitration, proved Telstra knowingly used flawed reports and test results to support their defence

24th October, 1997:  John Pinnock writes to Ms Pauline Moore, Secretary Senate Environment, Recreation, Communications and the Arts Legislation Committee, noting:

“I refer to previous correspondence and discussions with the Committee’s Research Officer, Ms Ducker, concerning a series of questions put on notice by Senator Boswell and arising out of the Committee’s proceedings of 26 September 1997…” (GS-CAV 318-B)

“The COT Arbitration Procedures contain provisions relating to the confidentiality of the proceedings, which bind the parties. Those provisions also bind the Arbitrators, the Resource Unit, the Special Council and the TIO in my role as Administrator.

Please note: only Telstra and the COT claimants signed the Confidentiality Agreement.

Mr Pinnock also notes:-

“Accordingly, I ask that the answers given below to the questions on notice be treated as confidential by the Committee and not published:

  1. In November 1995 I received correspondence from a COT member expressing concern about the Technical Resource Unit. The COT member:
  • expressed concern that the purchase by Pacific Star of Lane Telecommunications compromised the independence of the Technical Resource Unit;
  • stated that there were inaccuracies and biases evident in the Lane Telecommunications/DMR Technical Evaluation Report;
  • requested the Telecommunications Industry Ombudsman to dismiss the Resource Unit.
  1. On 6 November 1995 I was advised by Steve Black of Telstra that Lane Telecommunications and Pacific Star had already worked together on several Pacific Star contracts in Queensland and Western Australia and for the Federal Government.” 

and

“6Apart from the evidence I gave to the Committee on 26 September 1997 concerning the purchase of Lane Telecommunications by Ericsson Australia. I have recently been advised by one of the Arbitrators (Dr Hughes) that he will be transferring his legal practice to Blake Dawson, Waldron, Solicitors. I am aware that that form is currently acting for Telstra in relation to a number of matters. Arrangements are being made to discuss with Blake. Dawson, Waldron any possible conflicts of interest. …

“8. It is my recollection that I have never stated in person or by telephone to individual COT members and/or their representatives that the arbitration has failed.

9. Yes, from time to time I received complaints from foundation COT members, concerning a range of matters, including alleged non-compliance with the rules of the Fast Track Arbitration Procedure by Telstra and/or the Arbitrator and/or the Technical and Accounting Resource Unit. Identifying individual instances of complaints and detailing the response taken will require a huge amount of administrative resources in searching TIO files\

10. Yes, I have refused to provide COT members with a copy of Telstra’s Preferred Rules of Arbitration. A copy of this document was not provided because it was of historical interest only, and the COT members did not advance any argument as to why it was relevant to their arbitration. A copy is provided for the information of the committee.

Addressing all of Mr Pinnock’s letters would take considerable time:  in this context, it is more useful to address specific statements, such as those pertaining to the non-compliance with the rules of the Fast Track Arbitration Procedure by Telstra and the arbitration units.  The situation regarding the financial unit is addressed in Alan Smith’s CAV Chronology of Events and elsewhere in this document.

Point 10 in Mr Pinnock’s letter is, however, most important and is addressed in the following list.

Exhibit GS-CAV 153 is a letter dated 24th January, 1994 from Mr Shelton of Minter Ellison to Dr Hughes, the arbitrator, noting:-

“Following our meeting on Thursday last, I now enclose revised Procedure for your consideration.

Exhibit GS-CAV 171 is a letter dated 25th February, 1994 from Mr Shelton to Dr Hughes, detailing amendments made to the Fast Track Arbitration Procedure by Mr Shelton.

Exhibit GS-CAV 172 is an internal Telstra email dated 2nd March, 1994 noting:

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

Exhibit GS-CAV 175, dated 22nd March, 1994 is the transcript of a secret arbitration meeting attended by Telstra and their lawyers (Simon Chalmers and David Krasnostein from Telstra’s Legal Directorate), Dr Hughes (Arbitrator), Peter Bartlett (the TIO’s Special Counsel) and Warwick Smith (TIO).  The COT claimants were not represented and were not even aware of this meeting until late in 1998.  At point 2 in this transcript, Telstra notes:

“Mr Smith [the TIO] stated he would not endorse the rules as fair unless clause 10.2.2 repeated clause 2(f) of the Fast Track Settlement Proposal…

Exhibit GS-CAV 319 is a copy of Telstra’s Preferred Rules of Arbitration, which was attached to Mr Pinnock’s letter to Ms Pauline Moore (see exhibit GS-CAV 318-B).  With the exception of some minor cosmetic changes, this document is exactly the same as that allegedly drafted by Mr Shelton, proving Telstra’s threat to force Dr Hughes to use their preferred rules of arbitration, was no idle threat.

Exhibit GS-CAV 320 is page two from the award Dr Hughes handed down on 11th May, 1995 in Alan Smith’s case.  In this document, at point (h), the arbitrator notes:-

“at my request, an arbitration agreement was prepared by Mr (now Judge) Frank Shelton of Messrs Minter Ellison and settled by Messrs Minter Ellison in consultation with me, Telecom and the four COT case members concerned;

It may be argued that Frank Shelton’s amended agreement was prepared collectively by Mr Shelton, Dr Hughes and the COT claimants and only included some clauses from Telstra’s preferred rules.  Although, it is clear that almost all of the amended FTSP agreement was based on Telstra’s preferred rules.  Page 9, point 8(a)(bb)(ii), was taken directly from the AUSTEL-facilitated Fast Track Settlement Proposal clause 2(f), i.e., “will make a finding on reasonable grounds as to the causal link between each of the Claimants claims and the alleged faults or problems”, which was also in Telstra’s preferred rules. (GS-CAV 319)

Did Warwick Smith and John Pinnock refuse to provide the COT claimants with a copy of Telstra’s preferred Rules of Arbitration because it would reveal Frank Shelton’s agreement was almost (except for some cosmetic changes) the same agreement as Telstra’s Preferred Rules (and that someone altered clause 10.2.2)?  Therefore Warwick Smith, the TIO, should have kept to his promise to withdraw his endorsement of the rules? (GS 175)

OR perhaps it was because Warwick Smith and John Pinnock were concerned the COT claimants and their advisors might compare Telstra’s FTSP rules, Minter Ellison’s Arbitration Agreement and the final FTAP Agreement Graham Schorer and Alan Smith signed, and discover yet another alteration was made to the version provided to Dr Hughes, so that Minter Ellison (as Special Counsel) and the two resource units (FHCA and DMR) were exonerated from any liability resulting from negligence or wrongdoing?

The original FTSP was originally based on the AUSTEL-facilitated commercial review (which was never intended to be a legalistic arbitration) and the TIO, Telstra, the TIO’s Special Counsel and the Assessor, Dr Hughes, were all involved to some degree in turning the commercial review into a highly legalistic and unworkable arbitration process.  After all this, Dr Hughes wrote to Warwick Smith on 12th May 1995, warning the TIO that the whole process was not credible and the TIO told the Senate on 26th September, 1997 that the arbitrator had NO control over the process.  This secret alteration to the Arbitration Agreement, either by Warwick Smith and Peter Bartlett alone, or with Dr Hughes’ assistance, took away the only life-raft the COT claimants had – the right to sue the Special Counsel, FHCA or DMR (Australia) for misconduct

Graham’s solicitor, William Hunt, showed concern in his file notes (see 8th December, 1997 below) because Mr Pinnock wouldn’t provide him a copy of Telstra’s preferred rules noting:

“Pinnock will not make available the first draft of the fast track arbitration procedure sent in early 1994 by the then TIO to Bartlett of Minter Ellison. Telstra has refused to make the first draft available under FOI. Schorer says Pinnock has a copy and made it available to the Senate on a confidential basis.

“Schorer is convinced that it will show a complete programme altering the intention of the fast track settlement proposal and commercial assessment which was the subject on the November 1993 arrangement

Please note: The Senator, who finally provided Graham with a copy of Telstra’s Preferred Rules, is not named here in order to protect his/her identity.

27th October, 1997:  Graham Schorer writes to John Wynack, attaching a letter dated 11th January, 1994 to AUSTEL from Telstra’s Paul Rizzio, Group Managing Director, Finance and Administration. (GS-CAV 321-A & GS-CAV 321-B).  In his letter, Graham provides Mr Wynack with evidence proving Telstra advised AUSTEL it would not provide documents for the COT claimants until the claimants formally entered the TIO-administered arbitration process.  Paul Rizzio’s letter, and letters to Warwick Smith (see Graham Schorer CAV Relevant Information file, exhibit 13), confirm Telstra also advised Warwick Smith of this.

The draft AUSTEL Report regarding Alan Smith, the Cape Bridgewater Holiday Camp and the local exchange was not released to Alan before or during his arbitration (although it was released to Telstra).  Alan finally received a copy in November 2007.  Even after Alan signed the Arbitration Agreement (which was one of the provisions under which the draft findings would be released), he still wasn’t provided with a copy of the draft.  If he had been correctly provided with a copy of the Draft Report before the end of his arbitration, (and if the arbitrator had seen it), the Arbitrator’s Award would have been quite different.

The letters from Telstra to AUSTEL and Warwick Smith state:

  • “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.
  • The AUSTEL draft report will be expedited to ensure that it is available at an early stage of the arbitration process.
  • The AUSTEL draft report will be released to the parties involved in the fast track arbitration process for comment in accordance with a process agreed with the TIO, and only after each party has signed a formal document committing to keeping the contents of the report confidential and giving an undertaking not to comment either privately or publicly on the report until after it has been released publicly by AUSTEL.” (GS-CAV 136)

28th October, 1997:  Mr Pinnock writes to Ted Benjamin re Mr Alan Smith:  Dispute 1800 Charges, and notes:-

“For your information I enclose a copy of a letter received from Mr Smith.

“I would appreciate your detailed advice concerning call charges for Mr Smith’s 1800 line, in particular whether Telstra agrees that this matter was not addressed in Mr Smith’s arbitration.” ( AS-CAV 212)

Alan has never seen a response to this letter, but Ted Benjamin wrote to AUSTEL’s Bruce Matthews on 11th November, 1994 confirming Telstra would address the billing faults raised by Alan Smith, in their defence of his claims lodged under the FTAP

Other correspondence provided to Mr Pinnock by AUSTEL on 3rd October, 1995 and referred to previously, shows he was advised Telstra had still not addressed the billing issues then, five months after Dr Hughes deliberated on Alan’s claim.  Telstra responded to AUSTEL’s letter on 16th October, 1995, again confirming that the 008/1800 billing issues were never addressed in Alan’s arbitration and also confirming Telstra was trying to address these same issues from Alan’s arbitration, including short duration and RVA calls, and fax faults in secret – outside the legal structure of the FTAP. (AS-CAV 213)

By AUSTEL allowing Telstra to address arbitration matters outside of the arbitration procedure, without giving Alan right of reply, has made a further mockery of the FTAP.  Was it unlawful, under the Victorian Commercial Arbitration Act, for the defendant Telstra to secretly address arbitration issues raised by a claimant outside the legal forum of the agreed-arbitration procedure?

Please note

In its attempt to convince AUSTEL Alan’s complaints about the billing issues were not valid, Telstra attached a Witness Statement to the 16th October, 1995 letter, which was originally signed by Ross Anderson, a local Portland technician on12th December, 1994 and attached it to Telstra’s legal submission provided to Dr Hughes.  Ross Anderson was the technician who collected Alan’s TF200 telephone from Alan’s premises on 27th April, 1994 – yet the phone did not reach Telstra’s laboratories until 10th May, 1994.  In Alan’s reply to Telstra’s Arbitration Defence, he provided evidence to the arbitrator that either Mr Anderson lied under oath, or his negligence as a technician attributed to the problems in the phone system. (AS-CAV 73)  This raises another issue that has never been addressed – Telstra’s use of a tainted Witness Statement in an attempt to stop AUSTEL from further investigating Alan’s valid complaints

During this same period in October 1997, the Senate became involved and expressed outrage that Telstra had knowingly altered (blanked out) relevant sections of documents being supplied to the COTs under FOI.  Particularly in relation to Telstra’s Excel files that were being given to Alan, but which he had not sighted during his arbitration.  Under pressure from the Senate, Telstra provided some 200 previously unseen documents.  Commonwealth Ombudsman records support this

Alan prepared a report titled Telstra’s Falsified BCI Report, using many of the late received Excel files as support.  In 2016, eight copies of this report, along with supporting exhibits, were provided to members of Telstra’s Board.  As previously discussed, Technical Consultant Brian Hodge, BTech, MBA (BC Telecommunications) concluded BCI could NOT have generated the 13,000 (through the CCS7 system) because the unmanned Cape Bridgewater RCM could not facilitate this test call-trapping device

Fault data associated with Alan’s complaints should never have been withheld from him under the cloak of legal professional privilege.  Graham and Alan believe these few examples alone show how disadvantaged he was by not receiving the documents he should have received during his arbitration procedure.  If these documents had been provided, he would have had grounds to ask Telstra for Further Particulars

Put together the Excel files that Telstra didn’t supply under FOI or discovery, together with the documents that were not provided to DMR and Lane, by the TIO-appointed resource unit, and it is clear why Alan and Graham are still fighting for a correct assessment

This list of documents, produced by using Telstra’s schedules of Alan’s claim material (which it received from DMR and Lane), does not match up with the list of material Alan forwarded to arbitrator Dr Hughes for Telstra.  Alan matched these lists to his Telstra fax/phone account to determine which claim documents he faxed to Dr Hughes and which were then copied to Telstra under the agreed rules of supply and discovered Telstra did not receive at least 41 separate sets of information Alan faxed to Dr Hughes’s office.

Exhibit AS-CAV 62-B confirms an arrangement existed between Telstra, Warwick Smith and FHCA, to vet arbitration documents prior to being delivered to Dr Hughes.

Telstra’s Arbitration Liaison Officer, Steve Black, wrote to the TIO Warwick Smith on 11 July, 1994 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 [sic]. 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.”
(AS-CAV 179-B)

The statement, “If the resource unit forms the view that this information should be provided to the arbitrator”, confirms that both the TIO and Telstra were aware the TIO-appointed resource unit was assigned to vet most, if not all, the arbitration procedural documents en-route to the arbitrator.  If the resource unit decided a particular document was not relevant to the arbitration process, it would not be passed to the arbitrator or other parties.  This particular secret deal has been linked to further clandestine dealings.

Are we to assume that some of Alan’s 41 documents were vetted and then destroyed before reaching Dr Hughes?

Note: The TIO did NOT have the authority to introduce a separate deal into a process being conducted according to a written legal agreement.

Revisiting FHCA’s conduct

As previously discussed, on 6th December, 1995 Derek Ryan, Alan’s arbitration accountant from DMR Corporate, Melbourne, was so incensed with the inaccuracies in FHCA Financial Report that, without Alan’s knowledge, he wrote to Senator Alston to alert him to what Mr Ryan believed was a miscarriage of justice.  He notes:-

“The FHCA report was inaccurate and incomplete.  I have since been advised by a staff member of FHCA that a large amount of information was excluded from their final report at the request of the arbitrator.” (AS-CAV 177-A)

On 20th December, 1995 John Pinnock wrote to Mr Ryan refuting his allegations in his letter (AS-CAV 177-B).  Derek Ryan responds to Mr Pinnock, naming John Rundell as the FHCA person who advised of this incomplete report see (AS-CAV 178-B).

Also discussed previously, John Rundell wrote to Mr Pinnock on 13th February, 1996 stating:-

“I did advise Mr Ryan that the final report did not cover all material and working papers.” (AS-CAV 179)

Steve Black’s aforementioned letter to the TIO dated 11th July, 1994 appears to be relevant to most document issues being discussed here, i.e., FHCA altering reports, the removal of information from technical reports under the guidance of FHCA and the withholding of vital inter-procedural arbitration documents from Alan by FHCA.

Questions:

  • What happened to the material Telstra supplied to FHCA, which, in FHCA’s opinion was not relevant to the arbitration?
  • Why did Warwick Smith not advise Graham and Alan, prior to signing the Arbitration Agreements, that FHCA, as the Resource Unit, would be vetting material provided by the defence before it reached the arbitrator?
  • Was it appropriate for Warwick Smith, as the Arbitration Administrator, to give FHCA technical priority over Graham and Alan’s own technical advisor George Close, as to what was of relevant technical importance and to be seen by the arbitrator, and what was not??
  • Was FHCA’s involvement with the vetting of documents between Telstra, the claimants and Dr Hughes also related to why DMR and Lane’s list of Alan’s supposedly assessed claim documents were only added after they submitted their incomplete report as the Final Report?
  • Is it usual in an arbitration process such as Alan’s, to have two incomplete reports (the FHCA financial report and the DMR and Lane report) provided to the claimant and their professional advisors for official written comment?

Exhibit AS 220 confirms FHCA wrote to Dr Hughes (copying the same to the office of TIO), on 2nd August, 1996 admitting to withholding a number of arbitration procedural documents from Alan Smith during his arbitration.  As can be seen from exhibit AAS 217, the TIO appeared concerned about this, but has never addressed this matter.

7th November, 1997:  John Pinnock again writes to Ms Pauline Moore, secretary to the Senate Environment, Recreation, Communication and the Arts Legislation Committee, noting:-

“I refer to your letter of 31 October 1997, seeking further advice, on behalf of the Committee, arising out of my answers to Questions on Notice. …”

“I also note that the Committee wishes me to identify any documents provided in response to questions from the Committee, that I request remain confidential and to provide reasons for my request. …”

I set out my reasons for seeking confidentiality in relation both to information and documents supplied in that letter.” (GS-CAV 321)

Question:

The TIO held his position as a privately funded ombudsman.  A substantial part of the funding for his position came from the party under investigation in the COT arbitrations.  His only role in the COT arbitrations was as administrator.  The arbitrations were supposed to have been conducted transparently according to the Commercial Arbitration Act 1984 (Victoria).  How could Mr Pinnock therefore ask that any information or documents ‘remain confidential’?

Alan Smith and Graham Schorer believe the Senate Environment, Recreation, Communication and the Arts Legislation Committee should be advised it has now been proved that:-

  1. The TIO’s office knows – (at least in Alan’s arbitration, if not the other COT arbitrations) – the TIO-appointed Technical Resource and Financial Resource Units’ Reports either omitted important issues or were incomplete when they were provided to the claimant as if they were the Final Reports. The claimant was formally advised to respond to the incomplete versions of the reports, without being advised of the flaws in the reports.
  2. The TIO’s Office and/or its Special Counsel were party to the removal of two important clauses from the Arbitration Agreement, after the agreement was provided by Dr Hughes’ office to Solicitors Hunt and Goldberg as the final agreement, for legal advice regarding whether or not Graham and Alan should sign the agreement.

The Senate Environment, Recreation, Communication and the Arts Legislation Committee should be required to provide all the documentation they received from the TIO’s Office between 1995 and 2000, regarding the COT arbitration process.

7th November, 1997:  Mr Pinnock writes to Ms Catelli, of the Department of Communications.  This letter is in response to Alan’s letter to the Minister alleging his arbitration wasn’t conducted in a transparent manner.  Mr Pinnock makes no reference to Dr Hughes continuing to arbitrate using an agreement he knew was not credible, but instead, advises he has “considered each and everyone [sic] of these various allegations which I have found to be without substance”. (AS-CAV 235

Important:

Mr Pinnock made this statement five weeks after he condemned the COT arbitration procedures to the Senate and the Minister’s Office, on 26th September 1997, and stated:-

“One of the potential deficiencies should have been obvious from the outset. This deficiency revolves around the vexed question of the best method of enabling the Claimants to obtain documents held by Telstra. For present purposes, it is enough to say that the process was always going to be problematic, chiefly for three reasons, firstly, the Arbitrator had no control over the process, because it was conducted entirely outside the ambit of the Arbitration Procedures.”

17th November, 1997:  Wally Rothwell, Deputy TIO, writes to Alan confirming Mr Pinnock wrote to Telstra on 28 October regarding charges related to his fax line. (AS-CAV 236)

21st November, 1997:  Graham writes to William Hunt:-

“Enclosed is a copy of the Preferred Rules of Arbitration Telstra provided to the then TIO, Mr Warwick Smith, on or before 12 January 1994, entitled “Telstra Corporation Limited – ‘Fast Track’ Proposed Rules of Arbitration”, plus an interesting letter.”

“When I have the time, I am going to check the Clauses and wordings of this document against the Clauses and wording in:-

  1. the arbitration process mentioned in the AUSTEL letter of 18 November 1993 to Garms, Gillan, Smith and Schorer;
  2. the “Draft” of the Fast Track Arbitration (FTAP) allegedly drafted by Sheldon of Minter Ellison forwarded to the C.o.T.s in early February 1994;
  3. the Final Draft of the Fast Track Arbitration Procedure.” (GS-CAV 322)

26th November, 1997:  Graham writes to John Pinnock

“Re: Dr Hughes’ transfer of practice to Blake Dawson Waldron creating potential conflict of interest. …”

“In order to protect my self interest, I can no longer support Dr Hughes being the Arbitrator in my arbitration against Telstra. …”

“As my arbitration has been declared, in effect, a “mistrial”, and the offer of professional mediation is on the Agenda, I agree to meet you and Telstra on Tuesday, 2 December 1997 to discuss this and the fall back positions to be adopted if it, for any reason, fails to produce resolution.” (GS-CAV 323)

Mr Pinnock removes Dr Hughes as Graham’s arbitrator.

Regarding Telstra’s non-compliance with the FOI Act, prior to and during the arbitrations, and their conduct (GS-CAV 318-A):-

  1. In 1997, the Senate Environment, Recreation, Communications and the Arts Legislative Committee set up a Working Party to examine the COT arbitrations, with the assistance of the Commonwealth Ombudsman’s Senior Investigating Officer, Mr John Wynack. Even this intervention, by the Federal Government, could not force Telstra to supply all relevant FOI documents requested by Graham Schorer during this Senate investigation.  Therefore, what hope did Graham or any of the COT claimants have of acquiring the documents they were promised when they signed for arbitration?
  2. On 26th September, 1997 Mr Pinnock advised the Senate Environment, Recreation, Communications and the Arts Legislative Committee:-

“In the process leading up to the development of the arbitration procedures – and I was not a party to that, but I know enough about it to be able to say this – the claimants were told clearly that documents were to be made available to them under the FOI Act.”  (GS-CAV 312-A, also see GS-CAV 311)

Even after this statement, still no public investigation was conducted into how Telstra (a Government-owned Corporation during Graham Schorer and Alan Smith’s arbitrations) were able to control the arbitration process to their benefit and the claimants’ detriment.

  1. With all this information before them, why did the Federal Government condone the hiding of these FOI/arbitration matters, under the cloak of in-camera Senate Hansard privilege?
  2. If the Senate Working Party found nothing wrong with how the COT arbitrations were conducted, why did Senator Alan Eggleston, (Chair of the Senate Environment, Recreation, Communications and the Arts Legislative Committee), write to Alan Smith, on 16th August 2001, to warn him that he could be charged under the Parliamentary Privacy Act if he exposed in-camera Senate Hansard reports on the Senate Working Party’s investigation into the Telstra COT FOI arbitration matters?
  3. Why is the Commonwealth Ombudsman’s Report, prepared by John Wynack in relation to the Senate Working Party, being withheld from public scrutiny? What is in Mr Wynack’s Report, that caused the Coalition Government to classify it as parliamentary privileged?
  4. How can the TIO’s Office continue to maintain their TIO-administered COT arbitrations were conducted lawfully and transparently even when the Government of the day had to cover their Hansard reporting of 6th and 9th July, 1998 regarding the COT arbitration fiasco, as in-camera privileged information?

CHAPTER SIX

3rd December, 1997:  Graham writes two identical, but separate, letters to David Hoare, Chair of the Telstra Board and Michael Montalto, Telstra’s Corporate Secretary:-

“With reason, C.o.T. members believe many of Telstra’s recent answers provided to The Senate are neither true nor fair answers to specific questions asked of it by individual Senators.

“The attached Appendix, with supporting documents, sets out the reason for the C.o.T. members’ belief.” (GS CAV 325-A and GS CAV 325-B)

Had David Hoare and Michael Montalto correctly addressed some of the important issues raised in the appendix, most, if not all, of the problems continuing to plague the COT claimants could have been solved then.  For example, appendices one and two show Graham proved to the Telstra Board that the Alan Smith Bell Canada Addendum tests were impracticable, yet Telstra still used the results of those tests to support their defence of Alan’s arbitration claim.  Alan’s chronology shows DMR and Lane never investigated any of the faults Alan claimed continued to occur after the Bell Canada tests were completed.

Had the Telstra Board correctly investigated Graham’s evidence, they would have agreed with Brian Hodges MBE (Technical Consultant), in his report of 27th July, 2007, when he concluded BCI could not have conducted the tests at Cape Bridgewater and thus all Cape Bridgewater BCI tests were fundamentally flawed (see Alan Smith’s Relevant Information file).

The CAV Conspiracy to Pervert the Course of Justice LGE 5 files for John Pinnock and Dr Hughes show, on 20th June, 1995 Alan Smith provided both of them with the same evidence that Graham provided to Mr Hoare and Mr Montalto.  On the following day, 21st June, Dr Hughes wrote to Mr Pinnock (and copied to Telstra) regarding Alan’s BCI evidence.

Did Mr Hoare and Mr Montalto receive Alan’s letter of 20th June, 1995 regarding the BCI evidence, and Dr Hughes’ letter to Telstra on 21st June?  Perhaps the Telstra Board deliberately allowed Telstra to use the flawed BCI Defence Material in the COT arbitration process – and then allowed Telstra’s misleading and deceptive answers to the Senate, on 26th September, 1997 to go unanswered, because it wanted to avoid a major inquiry into Telstra’s use of false evidence in a process conducted under the auspices of the Commercial Arbitration Act, Victorian Supreme Court. (See Senate Hansard and Graham Schorer Relevant Information files, pp 23 and 24)

5th December, 1997:  Graham again writes:-

“CoT members believe many of Telstra’s recent answers provided to The Senate are neither true nor fair answers to specific questions asked of it by individual Senators.” (GS CAV 324)

Although this letter is only a draft of the 5th December, 1997 letter (GS CAV 336) and it is referred to in Part 1 of the Chronology, it is included for reference.

Graham Schorer writes to John Wynack:-

“Enclosed with this facsimile is the interim List describing the types and classes of documents Telstra need to discover in order to identify their existence in its list of documents to enable it to comply with the Senate Committee Terms of Reference. Equally, these are some of the same documents the Claimant, GOLDEN, needs to establish reasonable causal link between telephone service difficulties, problems and faults it experienced and call losses.” (See Graham Schorer CAV Relevant Information file, exhibit 14)

8th December, 1997:  William Hunt’s file note shows just how concerned he was for Graham to end this dreadful Telstra saga:-

“I have recommended to Schorer that he settle for almost anything that would be of use to get on with his business. He says he can quantify his call losses without any doubt (I would need to be shown this to believe it. What he cannot determine is the cause of the call losses being the fault of Telstra and rate. This is always spoken about as being showing evidence of the cause or link between Telstra and the losses. It is not a question of quantifying causes or links it is a question of identifying in simple language that calls were lost because Telstra did not provide a service that enabled the calls to be received when made. …”

“It should be noted that there is something in incongruous and unfair in Telstra being the case directly or indirectly of Schorer’s losses being able to set up ‘its prepared rules of arbitration’ to dispose of the fast track settlement procedures…” (GS CAV 327-A)

IMPORTANT

Part 1 of this Chronology does not reveal how ill Graham became as he watched his business struggle to survive.  Not because of his business decisions, but because, like the other COT claimants, he had no control over the communications system linking him to his existing and prospective new customers.  As the COT spokesperson, Graham learned, early in the claims process, Telstra had to hide, at all costs, the network problems resulting from their incompetence in not reading the signs regarding business and residential telecommunications growth as a result of population/immigration growth – millions more than the Telstra Board expected.  All the extra telecommunications traffic, created by population growth in the cities and in numerous rural hamlets, which became major tourist attractions, put a severe strain on Telstra’s old and obsolete copper wire:  it was lasting only 20 years instead of the expected 40!  The combination of population growth and corroded copper wire caused communications congestion because Telstra’s Board didn’t do their calculations properly, and ordinary Australian business people (like Graham and Alan), suffered as a result.

After more than 10 years of attempting to run a telephone-dependent courier business, Graham attended his first counselling session on 18th November, 1996 in an attempt to control his anger in relation to the situation he found himself in due to the ongoing Telstra saga.  By 7th June, 1999 Graham had attended 107 counselling sessions.

When William Hunt noted he “recommended to Schorer that he settle for almost anything that would be of use to get on with his business”, Mr Hunt did not realise that, like Alan Smith’s business, Graham’s business was still experiencing telephone problems.  Bell Canada should have tested the lines properly at both Alan and Graham’s telephone exchanges:  the faults would have been uncovered if the tests had been carried out correctly.  Proper initial testing would also have shown Telstra hid the problems during the COT arbitrations, under Legal Professional Privilege or Telstra in-confidence, or simply by stating the problems did not exist.

How could anyone, particularly the Government of the country, reasonably expect a small-business person like Graham, to enter into a process as complex as a Senate Working Party at the same time as they were in an arbitration process and trying to run a business?

Graham’s letter of 29th September, 1997 to Ms Pauline Moore, secretary to the Environment, Recreation, Communications and the Arts Senate Committee, discusses Senate Hansard records of 26th September, 1997.  On page 2, at point 2 under the heading “Quantum of Claim”, Graham notes:-

“The claimant’s Interim Claim for loss, as at 30 September 1996, is a minimum $4.3 million to a maximum of $12.6 million.” (GS CAV 328)

Even though Graham provided the Senate Committee Secretary with his interim loss figures to September 1996, Telstra later pressured Graham into taking a May 1999 offer of $3.8 million without any forensic valuation of the costs involved in trying to get Telstra to simply provide the telecommunications service the Government assured all Australians they had a right to!

An accurate valuation was never provided regarding the consequential future losses resulting from prospective customers not being able to contact Graham’s business, or from the effects of bad advertising, spread by word-of-mouth among customers and prospective customers of Golden Messenger, as a direct result of the seriously faulty telephone service provided by Telstra.

There was never any investigation into Graham’s claim the Government Regulator started with a review of past and present problems and then, with the assistance of the TIO, converted the review into the commercial Fast Track Settlement Proposal (FTSP) and then the Fast Track Arbitration Process (FTAP), putting Telstra in control of the procedure.  In the end, even John Pinnock, the TIO, had to admit the arbitrator had no control over the arbitration process!

Back in September/October 1993, Graham convinced Ian Campbell, then Group General Manager of Telstra’s Commercial and Consumer Division, it would be cheaper and more successful, all round, if Telstra would just negotiate with the claimants, without any admission of liability, and appoint an assessor to take a case by case approach, so no precedent would be set and there would be no problems with quantum or call-loss calculations.

Because of these discussions with Graham, Mr Campbell and AUSTEL’s Robin Davey arranged the FTSP.  The process disintegrated, however, when legal gurus, within and outside Telstra, saw a way to make a fortune out of litigation instead of a simple commercial loss assessment, such as that commonly used by insurance loss assessors around the world.

By 1998, Graham was in a highly legalistic nightmare, having been forced out of the FTSP and almost to his knees in desperation.  Telstra’s legal parties saw Graham was becoming more frantic and denied the existence of any relevant FOI documents to support his claim, knowing that when they then offered him what would seem like a lifeline, he was almost guaranteed to accept any amount.  The following information shows just how far Telstra, and those allegedly employed as independent umpires, were prepared to go – to cover their tracks!

Had John Pinnock told the Senate Working Party, at the beginning of that process, that Warwick Smith (Mr Pinnock’s predecessor), Peter Bartlett and Dr Hughes were warned by FHCA’s John Rundell, on 18th April, 1995 the arbitration process was being derailed by “forces at work” beyond the control of the TIO-appointed arbitration resource units, then the Senate Working Party would have had to investigate this and the FOI matters.

Had Mr Pinnock told the Senate Working Party Dr Hughes also warned Mr Pinnock’s predecessor that, if the arbitration agreement was to remain credible, it had to be revised – but Warwick Smith ignored this advice and continued with the process:  it would be reasonable to conclude the Senate Working Party would have taken this matter seriously and included it in their further investigations.

Exhibit (GS CAV 329) is a Telstra facsimile dated 7th November, 1997 to the Senate Legislation Committee providing answers to the Senate concerning how many COT-type complaints were in existence during the previous financial year.  On page 3, is written:-

“During the last financial year the total costs of providing advice for legal matters including costs of the Telstra Legal Directorate and litigation and arbitration costs resulting from disputes and claims was approximately $52 million. Of this amount approximately $40 million was spent with external service providers including legal firms and patent attorneys.”

Telstra’s answer to the 1997-8 Estimates Hearing, question 112 shows Telstra were prepared to spend three times the total of the actual original claims, on lawyers and legal advisors.  This very damning issue is highlighted in our conclusion.

QUESTION:

  1. Why did Telstra force Graham and Alan out of the already signed FTSP commercial agreement that Telstra’s Group General Manager Commercial Business, Ian Campbell, thought was the best way to go for all concerned?
  2. Did the highly paid lawyers suggest Telstra should go legal instead of settling the claims commercially

It is clear from the answer given by Telstra, to the 1997-98 Estimates Hearing, the lawyers won and the COT cases’ lost.

12th December, 1997:  Graham writes to John Wynack, Commonwealth Ombudsman’s Office:-

“Enclosed is copy of the correspondence sent to all Senators and a copy of correspondence sent to all Telstra Board Members, including Appendix and index of support documents, plus all support documents. …”

“[D]ocuments now in the possession of C.o.T. confirm there was an agreement reached between Telstra and the then TIO, Mr Warwick Smith, on or before 12 January 1994, for a legalistic arbitration process to be used with the C.O.T. Four who signed the FTSP…”

“This is one of many examples of how Telstra used misleading, deceptive and unconscionable conduct against C.o.T. members to gain an unfair advantage in the dispute resolution process. Telstra’s unfair advantages gained by unethical tactics and unlawful conduct is resulting in C.o.T. members being financially disadvantaged.”

“This conduct must be investigated and exposed for what it is in order to make Telstra accountable and be restrained in the future from engaging in like conduct.” (GS CAV 330-A)

The Bell Canada tests, carried out on 1st & 10th November, 1993 and the Cape Bridgewater addendum tests that Graham labelled as fundamentally flawed in this letter, were also discussed on pages 107 and 108 of the Hansard records of the Senate Meeting on 26th September, 1997 attended by the TIO, John Pinnock (GS CAV 330-B).

Exhibit GS CAV 331-A is a Statutory Declaration, dated 6th November, 1995 which was sworn by Mr John Main, a COT claimant.

“I spoke to Ms Pia Di Mattina from the Telecommunications Ombudsman’s Office at approximately midday today.”

“She advised me that the Bell Canada International Inc Report to Telecom Australia dated 1 November 1993 and the addendum dated 10 November 1993 were flawed documents.”

QUESTION:

When Mr Pinnock addressed the Senate on 26th September ,1997, why didn’t he report one of his officers, Ms Di Mattina, told John Main the BCI reports were flawed in November 1995?

In Graham’s letter to Jenny Fox, Senator Schacht’s secretary, on 19th November, 1997, Graham notes:-

“Telstra’s and John Pinnock’s recent answers to The Senate in response to Questions on Notice do not give a true and fair representation of events. In a number of instances, answers are misleading and/or contained statements that contradict fact.”

“During Telstra’s and John Pinnock’s recent appearances before The Senate, they both provided The Senate with explanations/account of the Telstra arbitrations, which was not a true and fair representation of events. …”

“C.o.T members were invited to appear before The Senate on 24 June 1997. They were told The Senate would give C.o.T. members an opportunity to give the Senators their version of events that did or did not take place, plus be available to answer questions.” (GS CAV 331-B)

Relying on this promise, Graham and Alan paid their own travel and accommodation expenses, believing they would finally be able to expose the Telstra/TIO arbitration fiasco, once they arrived in Canberra, but as Graham further notes:

“Unfortunately, no C.o.T. member was given an opportunity to provide The Senate with the C.o.T. version of events that have or have not taken place or address the misleading and inaccurate statements made to The Senate by Telstra and Mr Pinnock in their opening statements or response to questions.

Had the Senate allowed access to the sort of information included in Graham Schorer and Alan Smith’s individual Chronologies, surely it would have had no alternative but to call for an official Senate Enquiry into why the TIO-administered arbitration process, initially facilitated by the Government Regulator, was administered and conducted by the arbitrator outside the auspices of Australia’s accepted and democratic process of law.  The Senate did investigate the five litmus COT cases FOI issues, but nothing else.  Was the Senate pressured not to further investigate why the process was not conducted according to the agreed process?

15th December, 1997:  Graham writes to John Wynack:-

“I wish to include other items on the Agenda under the following:-

  1. Bell Canada International

Is there any reason why Telstra:-

  1. has not provided the C.o.T.s with, and
  2. will not provide the C.o.T.s with

the working papers, testing data and other relevant information created before, during and after the testing of the Telstra network relating to the Telstra test calls performed in accordance with the Bell Canada International (BCI) requirements before BCI completed its November 1993 Report and its attached Appendix, or for the Working Party to consider if the information is relevant?” (GS CAV 332)

19th December 1997:  John Wynack writes to Graham:-

“Attached is the letter I sent to the Senate ERCA Committee re the Working Party’s activities.”

“I decided not to send the appendix which you sent to me late yesterday as I do not think it relevant to the purpose of the letter and I think that those issues should be the subject of debate in the Working Party in the first instance.” (GS CAV 333)

The attached letter Mr Wynack refers to is to Senator John Tierney.

29th December, 1997:  Dr Hughes writes to William Hunt on the letterhead of Blake Dawson Waldron.

“[D]ue to a perceived conflict of interest arising from my commencement at Blake Dawson Waldron, I shall forthwith cease to act as arbitrator…”

“I noted the following reservations and qualifications expressed by the parties

  • Mr Schorer has reservations as to whether the arbitration should continue;
  • Mr Benjamin has some reservations as to whether a mediation should be commenced;
  • Mr Schorer’s objects to the involvement of Mr Howell as technical expert (although this is an issue which has previously been addressed by me).”
    (GS CAV 324)

7th January, 1998:  John Wynack writes to Graham:-

“Attached is a copy of a letter Telstra sent to me on 5 January 1998, in which they suggest that I write to Bell Canada International asking that BCI provide to the Working Party certain documents relating to its reports which were published in 1993.”

“I should be grateful for your comments on Telstra’s suggestion. Should you decide to request me to write to BCI, please provide details of the documents you think BCI might hold which are covered by the Working Party’s Terms of Reference.” (GS CAV 335)

9th January, 1998:  Graham responds to Mr Wynack:-

“Ann Garms and Graham Schorer have discussed this matter and are both in agreement that it would be improper and would not be appropriate for the Chairman of the Working Party to write directly to Bell Canada International to request information.” (GS CAV 336)

MOST IMPORTANT

Of the five COT claimants selected for the Senate Working Party litmus-test process, Graham was the only one still running his business.  It was unreasonable to expect him to be the major player and spokesperson for the whole group, while preparing his own arbitration claim and operating his business.  It is clear from the numerous letters and other documents that Graham prepared, between 1997 and 1999, his arbitration and his business both suffered as he attended to Senate Working Party business.

Because scores of letters, exchanged between Graham, John Wynack, Telstra, individual Senators and the Senate Working Party, discuss all five of the COTs involved in the Senate Working Party process, it has been impossible to separate out references to Graham alone.  This correspondence is collated into a separate file, in date order, and is available for perusal.

Telstra’s Ms Chisholm and Mr Carless

14th January, 1998:  Telstra’s Lyn Chisholm and Peter Carless arrive at Alan’s residence (not the camp) and discuss the continuing fax lock-up problems and billing faults associated with the line remaining connected after sending a fax.  Alan provides fax journal printouts that do not match Telstra’s accounting for those calls.  They also discuss the just-disconnected 1800 billing service and the problems experienced during and after Alan’s arbitration.  Alan provides examples showing the Commonwealth Ombudsman’s Office officially provided Telstra with a document confirming the Ombudsman’s Office made 43 calls to Alan’s 1800 line, until February 1997, yet Telstra charged him for 96 calls from the office.

When AUSTEL’s Darren Kearney visited the camp, on 19th December, 1995 he commented to Cathy that he had never seen such well-documented evidence.  “It’s unbelievable!” he said.  He subsequently took some of the arbitration billing claim documents that were not addressed during the arbitration back to Melbourne.  Alan believes Lyn Chisholm and Phil Carless had the same thought and he later followed Ms Chisholm’s suggestion and provided some of this evidence, via the TIO’s office, to Telstra.  Alan’s records confirm he continued to provide evidence of fax and phone problems, occurring throughout 1998 and 1999, to the TIO’s office and Mr Pinnock advised him these billing issues were still being investigated.  Other letters confirm Mr Pinnock was advising both Mr Hawker and the Minister’s office that these matters were still under consideration as late as February 1999.

Alan was never told, however, Telstra provided both the Minister for Communication’s Office and the TIO with copies of Lyn Chisholm’s file notes, confirming her opinion the billing faults he raised in his arbitration continued after his arbitration.  This would have given Alan good grounds to appeal the Arbitrator’s Award.

22nd January, 1998:  Ms Toni Ahkin, Communication Minister’s Office, writes to Mr Pinnock:-

“Further to our recent phone conversation I am forwarding Telstra’s transcript of its meeting with Alan Smith, held on 14 January 1998 concerning his claim of overcharing on his 1800 number [sic].” (AS-CAV 239)

23rd January, 1998:  Ms Toni Ahkin again writes to Mr Pinnock:-

I am forwarding copies of our proposed replies (that will be sent to the Minister’s office today) to David Hawker and Alan Smith in response to recent Min Rep’s concerning the arbitration process and overcharging on Mr Smith’s 1800 number.”

This fax suggests John Pinnock received a draft copy of information regarding Alan’s arbitration and billing problems, for his comment, before the Minister or David Hawker received it. (AS-CAV 240)

4th February, 1998:  Ted Benjamin writes to Mr Pinnock noting:-

“Telstra has examined the information forwarded by your office with regard to Mr Smith’s 1800 telephone service and is currently conducting an investigation into Mr Smith’s complaints.”

Attached to this letter is a three-page file note from Telstra’s Lyn Chisholm. This attached file note raises a number of questions:-

  1. Why were these file notes only provided to Ms Ahkin (and possibly the minister and Mr Pinnock), but not provided to Alan until December 2001? (and only then because of the then-new Privacy Policy Act)?
  2. Why wasn’t Alan told that Lyn Chisholm noted the billing faults he raised in his claim appeared to continue after his arbitration, when the Minister’s office and Mr Pinnock WERE told? This documented proof was what Alan needed to appeal his Award.
  3. When Lyn Chisholm alerted the Minister’s office and Mr Pinnock about the ongoing billing problems, why didn’t they initiate an enquiry?
  4. Ms Ahkin’s fax of 23rd January confirmed Mr Pinnock would see the Minister’s response to Alan’s complaints before David Hawker. Consider a Telstra FOI document, I00265, dated 16th October, 2002 and noting, regarding Darren Lewis, the new owner of Alan’s business:-

Hopefully, the TIO will become involved and that will take the Minister and Member [David Hawker MP] out of the equation.”(AS-CAV 242)

This document suggests Mr Pinnock has a lot to answer regarding to the problems that continued in Cape Bridgewater for so long.

COMMENTARY – Most important (1):

Regarding checking AUSTEL on dates: Mr Benjamin’s statement, “Telstra responded to investigations undertaken by Austel on 16 October 1995,” relates to correspondence from AUSTEL on 4th October, 1st December 1994 and 3rd October 1995.  It is a misleading and deceptive comment.

Please note: The 16th October, 1995 response Ted Benjamin is referring to, is when Telstra addressed Alan’s arbitration 1800 billing issues outside the legal arbitration arena. (AS 213)

The letter of 4th October is exhibit AS-CAV 126.  Mr Benjamin wrote to Bruce Mathews of AUSTEL, on 11th November, 1994 noting:-

“Each of the questions put by you in your letter 4 October, 1994 will be answered as part of Telecom’s defence to Mr Smith’s claims lodged under the Fast Track Arbitration Procedure.” (AS-CAV 127)

When he wrote his letter of 4th February, 1998 Mr Benjamin knew Telstra waited until five months after Alan’s arbitration before addressing the same billing faults he previously told AUSTEL would be addressed under arbitration.

COMMENTARY – Most important (2):

There are far-reaching ramifications from AUSTEL allowing Telstra to address arbitration matters without allowing Alan his legal privilege of responding to this document, as he would have been able to if Telstra submitted this document in their arbitration defence.  Imagine the outcome if Alan was able to challenge the information contained in this 16th October, 1995 document had it been submitted in the arbitration.

Page one, second paragraph letter dated 4th February, from Mr Benjamin to Mr Pinnock, notes:-

“Telstra will not be investigating complaints relating to the period before the Arbitration award that was handed down on 11th May, 1995 as Telstra considers that this matter was included in the arbitration and is finalised.”

How can Mr Benjamin make such statement when, on the next page he admits Telstra addressed the 4th October and 1st December 1994 matters on 16th October, 1995 – five months after 11th May, 1995 (the end of the arbitration)?

26th February, 1998:  Wally Rothwell, Deputy TIO, writes to Alan advising his office has received Alan’s letters, of 17th & 18th February, regarding billing information withheld from Alan during his arbitration. Mr Rothwell notes:-

“the Ombudsman has asked me to seek the opinion of the Special Counsel to the TIO under the FTAP, as to whether the aspect raised in those letters are matters which were or should have been decided by the Arbitrator in the Award he made”. (AS-CAV 243)

In her letter of 2nd August, 1996 to Mr Deeble of the TIO’s office, Sue Hodgkinson admitted, to Dr Hughes and the TIO’s office, billing documents WERE withheld from Dr Hughes and Alan, during his arbitration (AS 220).  Therefore, Dr Hughes could not address billing issues nor include them in his award.

Mr Pinnock’s statement is confusing, as he told Mr Hawker on 28th March, 1996 the faults were addressed in Alan’s arbitration.  Again, Mr Pinnock concealed his knowledge of FHCA admitting, on 15th November 1995, DMR and Lane did not address the 008 billing problems nor diagnose the causes of the faults, but left the problems “open” (see the Technical Report).

27th February, 1998:  John Pinnock writes to Graham and Ted Benjamin:-

“On 22 December 1997, Dr Hughes held a Directions Hearing in this matter.

Subsequently, Dr Hughes advised the parties, the Administrator, the Special Counsel and the Resource Unit that:

  • due to a perceived conflict of interest he had ceased to act as Arbitrator;
  • the arbitration should continue with the appointment of a new Arbitrator by the Administrator;
  • the Resource Unit should suspend further work pending directions from a new Arbitrator.

The parties then held discussions about the possibility of a mediated settlement. However, to date nothing concrete has emerged from these discussions.

Advice from the Special Counsel confirms

  • the Arbitration remain on foot;
  • as Administrator, I should appoint a new Arbitrator;
  • the Arbitrator must give directions about the release of the Preliminary Technical Evaluation Report prepared by Mr Paul Howell at the direction of Dr Hughes and now held by the Resource Unit.” (GS CAV 337)

Note:   Graham never received a copy of the Preliminary Technical Evaluation Report by Paul Howell.

Paul Howell’s Preliminary Report could only have been compiled from Telstra’s technical information because Graham was unable to submit his technical claim, as he had still not received ALL his relevant requested FOI information.  In Alan’s case, Paul Howell only assessed 23 claim documents from the 200 plus Alan submitted (see his report of 30th April, 1995 page 37).  Perhaps Paul Howell was contemplating doing the same in Graham’s arbitration?

6th March, 1998:  William Hunt’s file note contains his recollection of a discussion with Graham, concerning Graham’s belief he was forced under duress to sign the Arbitration Agreement.  Mr Hunt noted Graham as saying:-

“I rang Hughes and said ‘this is nonsense, you’re considering a proposition when it shouldn’t even be considered. We’re a commercial assessment process not arbitration’. He said ‘well that’s the way I’m playing it’ (or words to that effect).”
(GS CAV 338)

Mr Anthony Hodgson, Chair of Ferrier Hodgson misleads Mr Alan Cameron, Chair of the Australian Securities Commission

17th March, 1998:  Even though Ferrier Hodgson’s John Rundell wrote to Mr Pinnock on 15th November, 1995 advising him DMR and Lane had NOT addressed Alan Smith’s billing claim documents (AS 104), Mr Hodgson told Mr Cameron, “DMR and Lanes did address all of the claim documents submitted to the Arbitrator.” (AS-CAV 249)

18th March, 1998:  These file notes were prepared by parties other than William Hunt and Graham, confirming the author was present during this Direction Hearing administered to appoint a new arbitrator to assess Graham’s claims. (GS CAV 339)

25th March, 1998:  John Pinnock writes to Graham:-

I refer to the meeting at the TIO on Tuesday, 17 March 1998.

At the conclusion of this meeting I gave various directions in relation to the future conduct of your arbitration. I note that two of the dates by which certain actions were to be taken by the parties fall on a weekend. To prevent any misunderstanding, I now summarise my directions, providing revised dates where required:

By Friday, 15 May, 1998 the parties are to have provided one another and the TIO with detailed curriculum vitaes for nominations for the appointment of a new Arbitrator.(GS CAV 340)

On 26th March, 1988 Peter Bartlett writes to John Pinnock:-

1.       Appointment of new Arbitrator

1.1       Clause 1 of the Fast Track Arbitration Procedure (‘FTAP’) states that:

‘This procedure provides arbitration pursuant to the Commercial Arbitration Act 1994 Victoria), as amended (“the Act”).

1.2       Clause 3 of the FTAP states that the Arbitration:

‘will be administered independently by the TIO…(“the Administrator”) and conducted by Dr Gordon Hughes…(“the Arbitrator”.)’. …

  1. Arbitration remains on foot

2.1       We advise that the Schorer and Telstra Arbitration remains on foot despite Dr Hughes ceasing to hold office. The Act provides that when an arbitrator ceases to act, either the court or person with the requisite power shall appoint a new arbitrator. Neither the Act nor the FTAP provide that the Arbitration shall cease if an Arbitrator ceases to hold office.” (GS CAV 341)

Since Mr Bartlett was the legal advisor to the arbitration and John Pinnock was the administrator of the process, why didn’t they apply to the Supreme Court of Victoria and ask for an enquiry into Telstra’s conduct during Graham’s arbitration?  The legal architects of the Victorian Commercial Arbitration Act in 1984 would not have envisaged a situation, like that surrounding the COT arbitrations, where the arbitrator and administrator allow:-

  1. the defendants to use documents they knew were flawed to support their defence;
  2. the official Arbitration Resource Unit to submit a half-completed report for the claimant’s response.

Surely the legal architects of the Arbitration Act would not have envisaged an arbitrator and administrator would allow the Australian Federal Police to run their own investigation into the same arbitration issues at the same time?  How could both investigations take place at the same time when the documents were supposed to be held under strict confidentiality by the arbitration process?

Graham’s 12 counselling sessions during January and March 1998 (GS CAV 327-B) had little effect in mitigating the damage done by the TIO, the TIO’s Legal Counsel and the arbitrator, as they allowed Telstra’s conduct to continue throughout most, if not all, of Graham’s arbitration.  In fact, the damage done to Graham is immeasurable.

21st April, 1998:  William Hunt’s file note discusses the following:-

“On the Thursday before Good Friday (9th April) I had made special arrangements with Mr Schorer to be available to go through the material that he had been working on for purposes of the ‘working party’ for the Senate representations he was wanting to make. …”

“On Friday morning 17th April in the middle of the morning he rang me and asked for urgent help to provide copies of documents that he had prepared for the submissions to the arbitrator Hughes.” (GS CAV 342) 

In regards to Mr Hunt’s file note, concerning Graham’s representations to the Senate Working Party, Graham submitted the following submissions to the working party while he was still corresponding to the other parties in the arbitration process:-

  1. 3rd December 1997 to 11th January 1998, 5 letters and 82 attachments;
  2. 12th January 1998 to 10th February 1998, 8 letters and 210 attachments;
  • 11th February 1998 to 16th March 1998, 6 letters and 98 attachments;
  1. 17th March 1998 to 5th April 1998, 3 letters and 28 attachments;
  2. 6th April 1998, to 22nd April 1998, 8 letters and 199 attachments.

22nd April, 1998:  John Pinnock writes to Dr Hughes:-

“The TIO proposes to appoint a new arbitrator as soon as possible. Until such an appointment is made, I consider that it would be appropriate for the TIO, as administrator, to hold for safe keeping all the documents and correspondence submitted to you, as well as your own files, in relation to this Arbitration.” (GS CAV 343)

4th May, 1998:  William Hunt faxes Graham a list of seven legal experts he considers a possible replacement for Dr Hughes.  The relevance of this letter is discussed below. (GS CAV 344)

15th May, 1998:  Lyn Chisholm, writes to Mr Pinnock noting:-

“I refer to your correspondence of 25 March, 1998 regarding the appointment of a new Arbitrator and Technical Resource Unit.”

“I attach for you copies of curriculum vitaes for Mr Geoff Nettle QC, Mr Julian Burnside QC and Mr Jonathan Mott for consideration.” (GS CAV 345)

18th May, 1998:  John Pinnock writes to Graham:

“I confirm that by Friday 15 May 1998, the parties were to have provided one another and the TIO with curriculum vitae for nominations for the appointment of a new Arbitrator. I have to date received no such documentation.”

“I request that you immediately provide me with your nominations for the appointment of a new Arbitrator.” (GS CAV 346)

IMPORTANT

Between the dates of 3rd December, 1997 to 6th April, 1998, Graham corresponded with the Senate Working Party at least 29 times and provided 617 attachments to his correspondence. Over approximately the same period Graham received the following correspondence from the Working Party:-

1st December, 1997 to 31st December, 1997:  3 letters and attachments;

2nd January, 1998 to 30th January, 1998:  12 letters and attachments;

2nd March, 1998 to 25th March, 1998:  29 letters and attachments;

4th February, 1998 to 28th February, 1998:  20 letters and attachments;

2nd April, 1998 to 30th April, 1998:  25 letters and attachments;

5th May, 1998 to 13th May, 1998:  7 letters and attachments.

During this time Graham attended four Working Party Oral Hearings, and here was John Pinnock on 18th May, 1998 stating:-

“I have to date received no such documentation.”

Graham did send this documentation.  Where is it?

The TIO and his Legal Counsel failed to grasp that they had a duty of care to see the process was conducted transparently and ethically.  The arbitrator, Dr Hughes, failed to understand that once he realised that the Arbitration Agreement he condemned as not credible, as it didn’t allow claimants their proper entitlements to access documents from Telstra or allow reasonable time for the preparation of technical reports, he should have refused to carry on as arbitrator.

Had Dr Hughes’ letter of 12th May, 1995 to Warwick Smith reached the TIO Board and Council, stating:-

“it is my view that if the process is to remain credible, it is necessary to contemplate a time frame for completion which is longer than presently contained in the Arbitration Agreement”

The Board and Counsel would have immediately aborted the process until a new agreement was drafted.

It is a national disgrace and a mark against the Australian legal system:  Dr Hughes, Warwick Smith and John Pinnock did not act legally, via the Supreme Court of Victoria, in compelling Telstra to abide by the original agreement reached between the parties before the COT cases signed for arbitration (that they would get the relevant documents they needed through the FOI process).  The Senate became involved but, due to their own work load, it could only partially assist some of the COT cases.

It is a sad indictment that even Senator Richard Alston, wouldn’t apply force on Telstra to supply the relevant documents needed by the Working Party, so Graham could complete his claim for a negotiated settlement and have his claim of between $4 – $12 million professionally valued.

19th May, 1998:  In William Hunt’s file note he writes:-

“On today’s date I had conversation with Schorer and with Lyn Chisholm and Harry Thorpe [Graham’s accountant] on the telephone at Golden’s office. The upshot was that Benjamin is still holding back on agreeing to the proposition for stage one of Chisholm’s proposals because of fear that the arbitration would be blamed and he would be criticized in Parliament.” (GS CAV 347-A)

21st May, 1998:  John Pinnock writes to David Hawker, Federal Member for Wannon noting:-

“As you may be aware, Mr Smith has written to this office on numerous occasions concerning aspects of his Arbitration which was completed in May 1995.”

“The vast majority of Mr Smith’s complaints seek, in effect, to review the conduct of the Arbitrator, or the Resource Unit or both, as well as the Arbitrator’s Award.

“Recently, Mr Smith has raised a question as to whether the Arbitrator’s Award dealt with his complaint that he had been overcharged on his 008 (now 1800) freecall service.  As this is a matter which I can properly consider, I have made preliminary enquiries of Telstra and have also sought advice from Mr Peter Bartlett, Special Counsel, Minter Ellison. (AS-CAV 245)

IMPORTANT

Graham’s business losses were supposed to be assessed by an arbitration process, conducted transparently, ethically and according to the Commercial Arbitration Act (Victoria).  Yet, it is quite clear that the defendants in the arbitration – Telstra – controlled the arbitration process, not the arbitrator (Dr Hughes) or the administrator (the TIO’s office).

On 26th September, 1997, just nine months earlier, Mr Pinnock explicitly told the Senate:-

“the arbitrator had no control over that process because it was a process conducted entirely outside the ambit of the arbitration procedures”.

On 25th May, 1998 Ted Benjamin blatantly refutes the value of Graham’s claim.  The same Ted Benjamin who was previously condemned by the Senate for his conflict of interest: as Telstra’s Arbitration Liaison Officer (as well as a sitting member of the TIO Council), while the TIO’s office administered the COT arbitrations.

On top of relevant information being altered and blanked out in legally requested FOI documents and the drip-feeding of FOI documents (usually not those specifically requested), in order to withhold vital FOI documents from the claimants, Telstra – not the arbitrator – was running the arbitration and deciding what it would pay the claimants.

25th May, 1998:  This facsimile document from William Hunt’s office to Graham’s office was intercepted via Telstra’s fax-screening process. This will be discussed shortly (GS CAV 348-B)

Exhibit GS CAV 349, entitled Graham Schorer & Alan Smith Fax Interception Exhibit 3, prepared for Allen Bowles, January 2007, is a four-page document describing information showing legal documents between William Hunt, Graham and Alan’s offices were intercepted via Telstra’s fax-screening process during 1998, without their written authorisation.

Graham’s May/June 1998 settlement offer is similar to Alan’s 11th December, 1992 settlement offer, with Telstra dictating what the claimant should receive during settlement and appearing to know the minimum a claimant will accept, in order to stay financially afloat.

Exhibit GS CAV 350 contains pages from Alan’s arbitration reply, dated 18th January, 1995 to Telstra’s arbitration defence.  On page 3, Alan states to Dr Hughes:-

“I feel it is an appropriate time to indicate to you my interpretation of events of 11 December 1992, my date of settlement. I recall that I arrived at 10.00 am and left for lunch at 12.10 pm I arrived back at 1.00 pm and finished at approximately 2.15 to 2.30 pm. I would make mention that I had no legal representation and was completely on my own. I recall using the telephone twice. The affair, the bizarre type of negotiations, started at bargain basement style: $20,000.00 was offered, then $40,000.00 and then Ms Pittard [Telstra’s commercial general manager] left the room. On her return, she showed me two letters of guarantee that my phone was now up to network standard.”

Towards the end of page 3, Alan notes:-

“I recall that Ms Pittard deliberately stated that Telecom had time on their side which in my opinion Ms Pittard was attempting to say that Telecom would stretch me financially in respect to getting to Court.”

On page 4 of Alan states:-

“Mr Arbitrator you would find that Telecom has been negligent in their dealings with my phone service and the actions of Ms Pittard in refusing me historical fault information prior to the settlement was not only negligent, misleading and deceptive, it was also unconscionable conduct. Mr Arbitrator you would also have to wonder about Ms Pittard’s statementthat I had unlimited use of a telephone and that she was aware that in her absence I made several telephone calls during the negotiation period. Was Ms Pittard that concerned about me that she had this telephone monitored?” (See also GS CAV 351)

26th May, 1998:  Graham writes to Telstra’s Graeme Ward, Group Director Regulatory and External Affairs, unaware Mr Ward was also a sitting member of the TIO Board during part of the early period of Graham’s arbitration.  Graham notes:-

“GOLDEN believe [sic] its immediate compensation, without incurring further time and costs, for matters referred to and covered by the arbitration process originally agreed to as a Fast Track Settlement Procedure in November 1993 should not be less than $7.183 million.”

“Notwithstanding the $4 million limit imposed late as set out above, and on the basis that Ms Chisholm was genuine in her discussions with me on 13th May last and was acting with the knowledge and authority of some of her superiors in Telstra and that in consequence Telstra was in good faith indicating its readiness to make substantial concessions if GOLDEN could likewise respond then GOLDEN is prepared to accept $3.8746 million in full settlement of all the matters referred to in the arbitration proceedings or covered by or arising there out up to the present time.” (GS CAV 352)

As shown in exhibit GS CAV 349, Telstra intercepted faxes of Graham’s legal advisor William Hunt during the time Telstra and Graham were under confidential negotiation to settle all outstanding issues the arbitration process failed to settle.  While Graham states:-

“Ms Chisholm was genuine… and acting with the knowledge and authority of… superiors in Telstra and… Telstra was in good faith indicating its readiness to make substantial concessions”,

It is blatantly clear Telstra was NOT acting in good faith at all, otherwise they would not have intercepted legal correspondence between client and lawyer.

28th May, 1998:  Graham writes to Ted Benjamin noting:-

“Telstra’s advise [sic] that the 1st of June 1998 is the earliest it can arrange for the inspection of GOLDEN’s accounts, documents, and discuss GOLDEN’s methodology used to calculate its claim, is acceptable to GOLDEN.” (GS CAV 353)

Ted Benjamin writes to Graham in response to his letter to Mr Ward of 26th May:

“In respect to the conditions you have placed at point 2), Telstra will need to seek advice from its professional legal and accounting advisors and therefore reserves its rights to disclose contents of documents to the above mentioned parties solely for the purpose of assessing Goldens [sic] claim. (GS CAV 354)

The fax imprint at the top of Ted Benjamin’s letter shows the letter was faxed back to Graham at 16:28, after Mr Hunt read the document.  Exhibit GS CAV 355 (a previous faxed document from Mr Hunt’s office, dated 4th May, 1998) shows William Hunt’s usual fax identification display:  May 04 ’98 61 11:55AM 61 3 96706598 – yet Ted Benjamin’s letter see (GS CAV 354) shows a very different fax identification font and style.

A more detailed explanation of these faxes issues are explained in more detail in exhibit GS CAV 349.

29th May, 1998:  Senator Alston writes David Hawker MP, noting:-

“I understand that Mr Smith gave Telstra an undertaking in January 1998 that he would provide Telstra with any documentation he had in his possession supporting his claims. The Telecommunications Industry Ombudsman has also advised that the matter is still under consideration.” (AS 246)

2nd June 1998: Lucy McCullagh, Minter Ellison, on behalf of Mr Pinnock writes to Graham:-

“We refer to the above meeting and regrettably advise that the tape recording made of this meeting is inaudible due to radio interference.”

“Fortunately, Lucy McCullagh took notes throughout the meeting. As a formal transcript is not available, we request that you peruse the enclosed draft minutes and provide us with your comments and amendments in order for us to prepare a final set of agreed minutes.” (GS CAV 356)

9th June, 1998:  Wally Rothwell, Deputy TIO, writes to Alan:-

“The purpose of my intended meeting with Mr Hughes is to clarify whether he did consider the 1800 issues during the arbitration. …

“The Ombudsman’s advice to me though, is that he is only prepared to discuss or investigate the 1800 matter of overcharging and the Gold Phone issue if that appears to be necessary, after I have looked into it initially.” (AS-CAV 247)

Question:

How could Dr Hughes have considered the technical issues when:

  • DMR and Lane state, at point 2.23 in their technical report, “the level of disruption to overall Cape Bridgewater Holiday Camp (CBHC)” was not clear and the “fault causes” remained undiagnosed and, therefore, they expected “these faults would remain ‘open’”.
  • There was no provision in Dr Hughes’s award for future damages that might arise out of the faults DMR and Lane admitted were not investigated; and
  • DMR and Lane admitted, in their official Arbitration Report, they only assessed approximately 11 per cent of the faults Alan registered.

10th June, 1998:  Graham writes to Neil Mounsher, Manager Telstra’s Customer Response Unit:-

“Point 1

“It is my understanding that Mr Crofts [Telstra’s accountant] considers the GOLDEN claim is worth between $.6M to $1.2Million. …

“In my opinion, the amounts being considered by Mr Peter Crofts are less than what was alleged to be on offer in 1996.

“Point 2

“GOLDEN’s basic losses – $8, 333,000.00

“When these losses are discounted by 53.85% = $3.846 Million.

“Point 

“Loss of jobs (see Schedule)                           $5,003,000.00

‘Loss of Goodwill (see Schedule                     $1,198,000.00

“Interest Foregoing (see Schedule)                 $2,132,000.00

“Total GOLDEN                                            $8,333,000.00

“Total – Integrated Transport Service $2,777,000.00

“TOTAL                                                        $11,110,000.00

“Legal costs (not being FOI)                               $60,000.00

“FOI                                                                  $431,000.00

“Court costs ($200,000.00 taxed)                        $80,000.00

“G Schorer – injury, loss of health, etc           $1,000,000.00 plus

“GRAND TOTAL                                         $12,681,000.00” (GS CAV 357)

17th June, 1998:  Graham’s five page letter to Mr Pinnock, does not agree with the Arbitration Meeting Draft Minutes dated 22nd May, 1998 prepared by Minter Ellison.

“The GOLDEN response has been made in consultation with Mr William Hunt in order to address all of the deficiencies within the Minter Ellison Draft.” (GS 358)

Wally Rothwell, Deputy TIO, again writes to Alan:-

“I understand that you are going through a hard time at the moment and, while I cannot guarantee a successful outcome of your 1800 complaint, hope that you can bear with this delay.” (AS-CAV 248)

18th June, 1998:  Ted Benjamin writes to John Pinnock:-

“I have received a letter dated 17 June 1998 from Mr Schorer attaching his proposed amendments to the minutes of the above meeting.”

“Telstra does not agree with Mr Schorer’s suggested amendments to paragraphs 20 and 21. It believes that the minutes should remain as is, because they more accurately reflect the meeting proceedings than do Mr Schorer’s proposed amendments.” (GS CAV 359)

18th June, 1998:  Telstra’s Neil Mounsher responds to Graham’s letter of 10th June 1998, noting:-

“Notwithstanding the above, Telstra is not prepared to let the arbitration process be unduly delayed and I have been instructed to seek the appointment of a new arbitrator. I enclose a copy of Telstra’s letter to the TIO on this matter.” (GS CAV 361)

19th June, 1998:  Graham writes to John Pinnock:

“At 11:44 am Friday, 19 June 1998, my office received a Telstra facsimile dated 18 June 1998, addressed to the TIO, containing comments on my response to the errors within and omissions from the Draft Minutes of 22nd May 1998 meeting. …”

“It is unfortunate for all present at the meeting that the Draft of the brief notes taken by Lucy McCullagh do not record all of the key words used and key statements made by each party at the meeting. Telstra’s assertion the Draft should remain as is cannot take place because it does not mirror the meeting’s procedures and content.”

“The only action the TIO is entitled to take is to produce a set of Minutes that includes reference to my correction of the errors and the omissions of the key words/key statements made by individual parties, plus record Telstra’s belief the Minutes should remain as is, on their stated grounds they believe the Draft ‘more accurately reflect the meeting proceedings than do Mr Schorer’s proposed amendments’.

Please advise what action the TIO intends to take.” (GS CAV 362)

Had Mr Pinnock admitted to himself and the ACA (formerly AUSTEL), both he and Dr Hughes failed the claimants, and had Mr Pinnock handed Graham’s claim back to the ACA where the whole process began, the ACA would have had to declare all four arbitrations and settlement processes null and void.

The ACA would have had the power to do this because AUSTEL originally appointed Mr Pinnock’s predecessor to administer the original, signed, commercial-settlement agreement and AUSTEL endorsed that agreement.  Had Mr Pinnock handed Graham’s arbitration claim back to the ACA, his claim would have been properly valued, on the merits of the evidence, but instead Graham was told to accept Telstra’s offer, regardless of whether or not it came anywhere near Graham’s claim amount.

Was Graham still in the Fast Track Arbitration Procedure under the control of the TIO or did the appointment of the Senate Working Party mean his claim was now under the control of the working party?  It certainly seems that, at least up to this point, Telstra was in control – not the TIO or the Senate Working Party.  By June 1998, Mr Pinnock already knew the arbitrator had no control over the arbitration.

Graham again writes to John Pinnock:-

“I agree with your previous statements made in words to the effect, the TIO does not have the power to appoint a new Arbitrator under circumstances where the parties do not agree on who should be appointed, again repeated at the 22 May 1998 meeting.”

“After re-reading the previous correspondence between AUSTEL, TIO and myself, and my other notes on the same matter, it is quite clear the TIO’s only option is to refer this matter back to the ACA (formerly AUSTEL).” (GS CAV 363)

Please note: Because of Graham’s ill health during May and June 1998, much of the Senate Working Party correspondence was administered by other COT members, although Graham did receive 14 letters in May and June 1998, while he was trying to find a suitable arbitrator that was acceptable to all parties.

Ted Benjamin also writes to John Pinnock:-

“I note that, despite recent efforts, the parties have been unable to agree to date upon an Arbitrator to replace Dr Gordon Hughes.”

“The Arbitration has now been in limbo for some months as a result, a situation which clearly cannot be allowed to continue indefinitely. (GS CAV 364)

IMPORTANT COMMENTARY

Graham was still seeing a counsellor four times a month, to help him cope with this TIO and Telstra fiasco.  Did John Pinnock, the TIO Board and the TIO Council, expect anyone to believe they were looking after Graham’s welfare as a claimant in an arbitration supposedly being conducted under the Commercial Arbitration Act (Victoria)?

It was not revealed, in the Alan Smith CAV Chronology or the Graham Schorer Chronology part 1, that, during Graham’s arbitration, on a number of occasions, friends found Graham on his office floor crawled up into a foetal position and shaking.  Is it any wonder Graham is a shell of the man he used to be before he took part in the alleged TIO-administered transparent arbitration process?

CHAPTER SEVEN

FAXING PROBLEMS CONTINUE

29th June 1998:  William Hunt writes to Alan about lost faxes:-

“There are enclosed six sheets of paper which are the material received by fax from you this morning. I have numbered each of the pages at the bottom in ink and signed my name on the two blank pages.”

“There is a seventh separate page which is read-out from our fax machine as at quarter to three this afternoon.” (AS-CAV 249 and AS-CAV 250)

COMMENTARY

Exhibit AS-CAV 250 includes Telstra FOI document K01489, dated 29th October 1993:

“During testing the Mitsubishi fax machine, some alarming patterns of behaviour were noted, these affecting both transmission and reception. Even on calls that were not tampered with the fax machine displayed signs of locking up and behaving in a manner not in accordance with the relevant CCITT Group 3 fax rules. A half A4 page being transmitted from this machine resulted in a blank piece of paper 4cm long, the relevant protocol printout in sample #2 shows that the machine sent the correct protocol at the end of the page. Even if the page was sent upside down the time and date and company name should have still appeared on the top of the page, it wasn’t.

Please consider the following examples:

  • Exhibit AS 253 dated 24th July, 1998 confirms Chrissy Hawker recorded her experience of receiving similar half pages, including blank pages while working for Alan during 1998.
  • Exhibit AS 254 dated 24th July, 1998 confirms Ronda Fienberg likewise recorded similar experiences when receiving faxes from Alan’s office between August 1994 and July 1998.
  • Exhibit AS 255 dated 25th July, 1998 confirms Robert Palmer recorded experiencing similar transmission problems (over a two year period) when receiving faxes from Alan’s office.
  • Exhibit AS 270 dated 30th January, 2000 confirms Margaret Van Run, recorded experiencing fax problems while working over the Christmas period of 1999.
  • Exhibit AS 250 dated 21st January, 2003 confirms Darren and Jenny Lewis (the new owners of Alan’s business) wrote to David Hawker MP concerning their experiences when sending faxes.
  • Exhibit AS 250 dated 23rd January, 2003 confirms Mr and Mrs Lewis raised their faxing complaints with John Pinnock, TIO.
  • Exhibit AS 250 dated 29th January, 2003 from Senator Alston’s office to David Hawker MP, states:-

“Thank you for your representations of 20 January 2003 on behalf of Mr Darren Lewis concerning Telstra services.

The issues raised in your letter are receiving attention and the Minister will respond to you shortly.

Graham and Alan believe their telephone calls and facsimiles were intercepted during their respective arbitrations, and during the Senate Working Party investigations. Consider the fax identification footprints in (GS CAV 365).

Exhibit GS CAV 367 is a four-page document detailing the information on file showing someone with access to Telstra’s network was intercepting Telstra-related correspondence leaving Alan Smith’s office and his residence, via his facsimile service, from 1998 to 2002

30th June, 1998:  John Pinnock writes to Graham:

“It is unfortunate that the tape recording of our meeting on 22 May 1998 failed. I do not agree that the draft of the notes of the meeting do not record all key words used. However, that is a matter of opinion.”

“While I believe that the notes fully record the essential points of the meeting, it seems to me that the parties will have to add their own addenda to the minutes in respect of any aspect with which they disagree. …”

“I do not propose to refer this matter back to the Australian Communications Authority. …”

“While I assume that the document entitled ‘Telstra Corporation – Fast Track Proposed Rules of Arbitration’ which you provided to Mr Bartlett on 22 May 1998 is a copy of the document provided to Warwick Smith on or before 12 January 1994, I cannot be certain it is. (GS CAV)

COMMENTARY

Exhibit GS 144, in Graham’s Chronology part 1, is a letter dated 18th January, 1994 from Dr Hughes, to Graham:-

“I have been provided by the TIO with a document entitled ‘Telstra Corporation Limited – “Fast Track” Proposed Rules of Arbitration’. I have not yet formed a view as to the suitability of this proposal.”

Exhibit GS CAV 343  contains a letter from John Pinnock to Dr Hughes, dated 22nd April, 1998 which notes:-

“The TIO proposes to appoint a new arbitrator as soon as possible. Until such an appointment is made. [sic] I consider that it would be appropriate for the TIO, as administrator, to hold for safe keeping all documents and correspondence submitted to you, as well as your own files, in relation to this Arbitration

Question 1

If Mr Pinnock couldn’t be certain the document Graham provided to Mr Bartlett was a mirrored copy of Telstra’s ‘Fast Track’ Proposed Rules of Arbitration, why didn’t he check the arbitration files supplied back to him by Dr Hughes?

Any forensic document researcher would agree if comparing both the final Arbitration Agreement we signed and the agreement Telstra sent to the TIO, that the Arbitration Agreement used in the arbitration process was based on Telstra’s rules and not on an independent agreement.

Exhibit GS 318-b, in Graham’s Chronology part 1, is a letter from John Pinnock to Ms Pauline Moore, Secretary Senate Environment, Recreation, Communications, and the Arts Legislation Committee, noting:-

“Yes, I have refused to provide COT members with a copy of Telstra’s Proposed Rules of Arbitration.  A copy of this document was not provided because it was of historical interest only, and the COT members did not advance any arguments as to why it was relevant to their arbitration. A copy is provided for the information of the committee.”

Question 2

Does this suggest the copy of Telstra’s Proposed Rules of Arbitration, provided by Mr Pinnock to the Senate, might not be a true and correct copy of the one supplied to the Arbitrator 18th January, 1994? 

8th July 1998:  Graham discusses his previous phone call, of Monday, 6 July 1998, with Telstra’s Neil Mounsher:-

“I am confirming in writing I did not terminate the Telstra-GOLDEN 3-Part Agreement which Telstra initiated, nor did I imply I was going to terminate the agreement. …”

“The outcome of the proposed meeting between Telstra and GOLDEN, tentatively scheduled to take place on Friday, 19 July 1998, may result in Telstra re-committing to participate in Part 2 and Part 3 of the agreement between the parties.”

“I await advice as to whether the proposed Friday, 10 July 1998 meeting will take place.” (GS CAV 369)

Please note

During July and August 1998, Graham was heavily involved in preparing a Confidentiality Agreement for the Senate Working Party, so commercial sensitive Telstra documents uncovered by Graham, Ann Garms, Ralph Bova, Ross Plowman and Anthony Honner would remain confidential to their claims.  This agreement was seen to be fair, considering the five COT cases were only the litmus tests for the remaining 16 and the other claimants would have similar opportunities for accessing their required previous-non supplied FOI documents

However, at the disgust of many, including the Commonwealth Ombudsman’s Office, Senator Richard Alston, Minister for Communications, Information, Technology and the Arts, went back on the Schedule B list agreed terms of reference.  The remaining 16 were never afforded the opportunity to view at least some of the relevant information previously withheld from them by Telstra and which might provide them the opportunity to successfully win an appeal process.

Graham was saddened by Senator Alston’s about-turn decision: after all, the whole COT group had suffered at the hands of Telstra and their sympathisers.

16th July, 1998:  Wally Rothwell writes to Alan:- 

“I further outlined your concerns about fax pages which you considered did not reach the arbitrator, during your arbitration, and the mysterious blank pages.  …”

“With regard to the 1800 and Gold Phone matters, I have received information from Mr Bartlett and have asked Dr Hughes about his consideration of the matters during arbitration.” (AS-CAV 251)

Alan has never seen this “received information from Mr Bartlett”.

22nd July, 1998:  Telstra’s John Armstrong writes to Graham.  While the Senate Working Party process has been kept separate from this Chronology, it is important this letter is highlighted, as the content is relevant to Alan Smith’s arbitration process as well.

Under the heading, National Network Management Centre Logbooks, Mr Armstrong states:-

“Also provided in addition to the above, is an example of a National Network Management Centre (NMC) Logbook. The NMC is responsible for monitoring traffic levels and blockages within the Telstra network and taking action to limit or redirect traffic as necessary. … The logbooks listed in the attached table are the record of events controlled or monitored by the NMC from 20 July 1984 to 4 June 1998.”
(GS CAV 370)

24th July, 1998:  Alan writes to Wally Rothwell re lost faxes during his arbitration: 

“Another chronological list of faxes which have been lost in transit to Dr Hughes is enclosed. …” 

“The pieces of the puzzle are beginning to fit together now that it appears that neither the Arbitrator or the resource team actually saw all the claim documents I believed I had submitted and which I intended Telstra to address in their defence of my claims.” (AS-CAV 252)

25th August, 1998:  Mr Pinnock writes to Alan noting:-

“The only issues that I am considering, as the former Administrator of your arbitration, are the alleged overcharging for your 1800 service and matters pertaining to your Gold Phone service, and whether they were considered in the final award. (AS-CAV 257)

1st September, 1998:  Graham’s letter to Mr Pinnock again criticises the TIO and Peter Bartlett’s office for their failing to correctly address the misleading and deceptive conduct of Graham and Alan knowingly being misinformed by the TIO and Dr Hughes, concerning the Fast Track Arbitration Rules being drafted by Minter Ellison, when Telstra’s own lawyers drafted the agreement.

The evidence, shown in Graham’s Chronology part 1, confirms someone with access to Minter Ellison’s office altered the Arbitration Agreement, without notifying Graham or Alan, after copies of the agreement were provided to their legal advisors, William Hunt and Alan Goldberg, for advice. (See Graham Schorer Exhibit 2, Relevant Information file.)

16th October, 1998:  The Hon David Hawker, MP, writes to Mr Pinnock:-

“I would appreciate your assistance in resolving Mr Smith’s complaint.

I look forward to receiving your advice in due course.” (AS-CAV 258)

Exhibit AS-CAV 262 confirms Mr Pinnock is still investigating the billing issues in February 1999, even though he knew these issues were not addressed in Alan’s arbitration.

19th October, 1998:  Ted Benjamin submits his sworn Affidavit to the Court (on behalf of Telstra) in the Matter of an Arbitration under the Commercial Arbitration Act, between Telstra Corporation Limited and Graham Schorer

It is important to point out some discrepancies in this affidavit i.e.

Point 4:  “The FTAP was prepared after Dr Hughes advised the parties that his functions could most be effectively be discharged if he was appointed as Arbitrator rather than assessor,” is incorrect because:-

  • Dr Hughes did not make that statement until the FTAP meeting attended by Graham on 17th February, 1994 see Graham’s Chronology part 1 exhibit (GS 165); and
  • Telstra faxed Warwick Smith a copy of their Telstra Proposed Rules of Arbitration on the 10th January, 1994

Point 20:  “On 12 May 1995 the Arbitrator indicated to the Claimants that he had not heard from them for some time and that he would be convening a directions hearing in order to determine whether the parties wished the arbitration to proceed,” is misleading as is the letter itself because:

  • on 12th May, 1995 Dr Hughes also wrote to Warwick Smith without copying the same to Graham noting: “In summary, it is my view that if the process is to remain credible, it is necessary to contemplate a time frame for completion which is longer than presently contained in the Arbitration Agreement.” (GS 217)

Why didn’t Mr Benjamin state in his Affidavit that the Arbitration Agreement was not credible, or wasn’t he aware?

If Mr Benjamin wasn’t aware, as a sitting TIO Council member, does this mean the TIO Board and Council are also unaware their officers were administering the COT arbitrations on an agreement that Dr Hughes damned “not credible” on 12th May, 1995?  Did Mr Pinnock keep Dr Hughes’ letter to himself?

Point 42:  “On 14 August 1997 the Arbitrator made directions in relation to the involvement of Mr Paul Howell of DMR Group Australia Pty Ltd, in accordance with Clause 8.1 of the FTAP.”

  • This statement is incorrect as Paul Howell was commissioned in Canada, during March 1995, from DMR Group Canada Pty Ltd.
  • DMR Group Australia Pty Ltd was sacked from the FTAP, in February/March 1995, because it had a conflict of interest.

Point 48: “On 22 May 1998, I attended a further meeting at the TIO. Mr Schorer and his solicitor were also present. Again, the purpose of the meeting was to attempt to progress the arbitration by appointing a new arbitrator.”

Remember, the 22nd May, 1998 Minutes referred to were originally compiled from handwritten notes prepared by Ms Lucy McCullagh of Minter Ellison.  Graham was advised Minter Ellison’s tape-recording equipment apparently failed to record the meeting.  John Pinnock and Ted Benjamin accepted these Minutes as a true and correct account of the meeting and Graham’s interpretation of events were irrelevant. (GS 358)

IMPORTANT COMMENTARY

Alan Smith has maintained, during, and for years after his arbitration, the problems and faults raised in his claim continued until he and his partner Cathy were forced to sell their business, because Telstra and the TIO would not investigate their valid claims.

The importance of exhibit GS CAV 370 is that, with the attachments, it shows that, if the Senate had not been involved in the COT FOI investigation, Graham would not have received this relevant log-book information.

Exhibit GS CAV 371 is John Wynack’s letter, dated 11th November, 1994 to Telstra’s CEO Frank Blount, noting:-

“At the request of Ms Geary, I am notifying you of the details of the complaints made to the Ombudsman by Alan Smith.”

On page 2, it is noted for the date 7/11/94:-

“Telecom unreasonably refused to provide the ‘Portland/Cape Bridgewater Log Book associated with the RCM at Cape Bridgewater’ for the period 2 June 1993 to 6 March 1994.”

Alan Smith wanted this logbook to show Dr Hughes, Arbitrator, that the Cape Bridgewater exchange trunked off the Portland AXE, was still suffering with phone problems, even though the Bell Canada International (BCI) tests stated otherwise.

Exhibit GS CAV 372 is a sworn Statement by Des Direen, an ex-Telstra Protective Services Officer, dated 10th August, 2006 confirming at points 20, 21 and 22 that:-

“20. …I had cause to travel to Portland in western Victoria in relation to a complaint involving suspected illegal interference to telephone lines at the Portland telephone exchange.” 

“21. As part of my investigation, I first attended at the exchange to speak to staff and check the exchange log book which was a record of all visitors to the exchange and a record of work conducted by the technical officers.”

“22. When I attended at the exchange, I found that the log book was missing and could not be located. I was informed at the time by the local staff that a customer from the Cape Bridgewater area south of Portland was also complaining about his phone service and that the log book could have been removed as part of that investigation.”

Alan Smith has never been provided the Portland/Cape Bridgewater Log Book.  By Telstra withholding this vital information from Alan, he was stopped from using up-to-date documentation that would assist him to show the arbitrator the problems and faults were still ongoing

Arbitration v Senate Working Party, which way should Graham go

From August to the end of 1998, John Pinnock was still hiding the fact that the TIO-administered arbitrations failed to provide most of the claimants the information to support the true extent of their phone problems and faults.  During the same period, very little was being achieved through the TIO Office in regards to Graham’s arbitration matters.  Graham was now working extensively with Telstra via the Senate Working Party (hence very little correspondence worth noting).

COMMENT 1 

Exhibits GS CAV 375 and GS CAV 376 confirm Paul Howell, was from DMR (Canada) and Warwick Smith was using DMR Group (Canada) in September 1994.

  • Exhibit GS CAV 376 is a letter from Warwick Smith to Alan Smith, dated 9th March,1995:-

“As the executive of DMR Group Australia Pty Ltd is unavailable to provide locally based technical assistance, I propose to utilise the services of Mr David Read and Mr Chris Soutter of Lane Telecommunications (based in Adelaide) who are suitable qualified and independent.”

“Messrs Read and Souter will assist Mr Paul Howell of DMR Group Inc (Canada)…”

  • Exhibit GS CAV 377 is a letter from Warwick Smith to Mr and Mrs Main, dated 27th September, 1994:-

“I am yet to formally appoint an Arbitrator to be involved to hear any cases… However, already established is a Resource Unit made up of a representative of the senior accounting firm Ferrier Hodgson and DMR Group, who are Canadian communication experts.”

COMMENT 2

In 2001, under the TIO Privacy Policy Act, Alan received a document dated 18th April, 1995 from John Rundell of FHCA to Warwick Smith.  This document advised:-

“Paul Howell, Director of DMR Inc Canada arrived in Australia on 13 April 1995 and worked over the Easter Holiday period, particularly on the Smith claim. Any technical report prepared in draft by Lanes will be signed off and appear on the letterhead of DMR Inc.” (AS-CAV 160) 

The following points explain the relevance of this letter:

  • DMR (Australia) signed an agreement with TIO Warwick Smith, in April 1994, (as stated in the Arbitration Agreement) to act as the independent Arbitration Technical Resource Unit.
  • On March 9 1995, Warwick Smith advised Alan DMR Australia was unavailable to provide locally based technical assistance. Paul Howell of DMR (Canada) was to be appointed as the principal technical advisor to the resource unit and Lane (based in Adelaide) would assist Mr Howell:-“Could you please confirm with me in writing that you have no objection to this appointment so the matter can proceed forthwith”. (GS CAV 376)
  • In his letter, Mr Rundell confirms he was prepared to transfer Lane’s technical findings onto the letterhead of DMR (Canada) as a guise that Paul Howell prepared the final Report. (AS-CAV 160)
  • Document AS-CAV 162 confirms Paul Howell, on 21st March, 1995 only received 3 of Alan’s 22 submitted claim documents, along with Telstra’s defence.
  • Document AS-CAV 163 confirms FHCA advised Mr Howell, on 5th April, 1995 that David Read (of Lane) would have his draft Technical Report prepared by 7th April, 1995.
  • Dr Hughes’ draft Award, on page 3 at (i) and (j), states:-

“pursuant to paragraph 8 of the arbitration agreement, I had power to require a ‘Resource Unit’, comprising Ferrier Hodgson, Charted Accountants, and DMR Group Australia Pty Ltd, to conduct such inquiries or research as I saw fit;”

“On 21 February 1995, by the time I was satisfied that the submission of all relevant material by both parties was complete, I instructed Ferrier Hodgson (and, through them DMR) to conduct certain inquiries on my behalf;” (AS-CAV 165)

  • Dr Hughes’ final Award states, on pages 3 and 4 at (i) and (j):- 

“pursuant to paragraph 8 of the arbitration agreement, I had power to require a ‘Resource Unit’ comprising Ferrier Hodgson, Charted Accountants, and DMR Group Australia Pty Ltd, to conduct such inquiries or research as I saw fit. By consent of the parties, the role of DMR Group Australia Pty Ltd was subsequently performed jointly by DMR Group Inc and Lane Telecommunications Pty Ltd;”

“On 21 February 1995, by which time I was satisfied that the submission of all relevant material by both parties was complete, I instructed the Resource Unit to conduct certain inquiries on my behalf;” (AS-CAV 165)

Summary of Documents (AS-CAV 160 to 165):-:

  1. Paul Howell didn’t receive any of the technical claim and defence material until 21st March 1995.
  1. Paul Howell and David Read weren’t officially appointed by the TIO until 9th March 1995 and/or officially accepted by Letter of Consent.

All the technical findings, in both the draft and final Awards (except for the removal of the alleged liquid-spillage segment), are the same.  However, in the draft Award, the author states he called on DMR Group Australia Pty Ltd by 21st February, 1995 to conduct inquiries.  As DMR (Canada) was not appointed until 9th March, 1995, and didn’t receive the Technical Claim and Defence Material until 21st March, 1995 (see AS 162), how could the technical findings in the final Award have been prepared by DMR (Canada) when the technical findings in both awards are the same?

QUESTIONS: 

  1. Is there a link between DMR Group (Australia), Lane Telecommunications and Dr Hughes, all having a conflict of interest (after their appointments), to Graham’s arbitration?
  2. Why did it take Warwick Smith from September 1994 to March 1995 to inform Graham and Alan that DMR (Canada) would be appointed as their Technical Resource Unit?

Exhibit EJB1 is the Fast Track Arbitration Procedure (agreement) signed by Graham 21st April, 1994.  However, as has now been proven, this agreement was not the one Dr Hughes’ office faxed to Graham’s legal advisors, William Hunt and Alan Goldberg, for their attention and advice.  There is no correspondence showing Graham or Alan were notified of these alterations before they signed the agreement.

While not yet substantiated, it appears Telstra knew of these alterations either before, or during, Graham and Alan’s arbitrations.

In the Supreme Court of Victoria Court of Appeal, a judgement was handed down by Judges P Winneke, P Phillips and J Kenny, on 30th April, 1998 which notes {p4}:-

CATCHWORDS:

Unilateral mistake – Claim for rectification – Deletion of material provision – Solicitors acting – Mistake by solicitor – Actual knowledge of other party – Failure of other party to bring mistake to mistaken party’s attention [our emphasis] – Assessment of witnesses by trial judge – whether findings of trial judge justified order for rectification. …

“Of course the respondents faced considerable difficulties in their claim for rectification, not the least being that clause 10.9 had been deleted by their own solicitors; it was not something sought or even suggested by the appellants. Moreover, there were subsequent negotiations over clause 2(1)(f) which might have been expected to draw the respondents’ attention to the mistake over clause 10.9, if such it was; secondly, the relevant board, acting for the respondents, authorised the execution of the shareholders’ agreement and indeed the other agreements, in the form in which they were finally settled by the respondents’ solicitors and those solicitors were certainly not unaware of the deletion of clause 10.9…”

“In a careful and comprehensive judgement, the trial judge examined the evidence, such as it was, and resolved all of the issues of fact were necessarily involved in the respondents’ suit, Thus he found that the inclusion of a right of pre-emption such as that accorded by clause 10.9 was of fundamental importance to the agreement.”
(GS CAV 379 t)

COMMENT:

Mr Benjamin’s Affidavit, for Justice Gillard, does not include any of the following:-

  1. A Commonwealth Ombudsman’s investigation, which showed Telstra’s administration of Graham’s FOI releases, during Graham’s arbitration, was defective.
  2. A Senate enquiry, on 6th and 9th July,1998 which:-
    1. examined Telstra’s defective supply of relevant information to Graham during his arbitration, and
    2. asked why Telstra was still not providing the documents the Senate Working Party requested.
  3. The Senate’s expressed anger that, as late as July 1998, Telstra showed disdain to the arbitration process by not supplying the relevant documents needed by the claimants.
  4. The Senate’s criticism that Telstra was also showing disdain to the Parliament.
  5. Mr Benjamin’s attendance as a witness at the Senate enquiry at point 2.

QUESTIONS: 

  1. Even if Justice Gillard appointed a new arbitrator, what chance did Graham have of ever receiving the relevant documents needed to support his claim when, as late as July 1998, the Australian Parliament couldn’t get Telstra to supply the most relevant documents to the claimants?
  2. Why didn’t Ted Benjamin include, in his Affidavit, the truth of the situation in July 1998, when Senator Schacht attacked a number of statements made by Ted Benjamin?

{P 31 & 32} – Senator Schacht attacks a number of statements made by Ted Benjamin:

Senator SCHACHT One of the 16 complained they were starved into submission, but that is another point:

Senator BOSWELL “…To make a statement like that –

CHAIR Senator Boswell.

Senator BOSWELL“…No, I am sorry, Madam Chair, but this is just outrageous. You are abusing the privileges of this parliament when you make those statements. You drove them out. You drove them into submission and you drove them into starvation. How you can have the audacity to come before this parliament and blatantly say that? You are really a disgrace, the whole lot of you.” 

CHAIRSenator Boswell, will you withdraw that?”

Senator BOSWELL “…Madam, I withdraw that, but I do say this: this has got a unity ticket going right through this parliament. This has united every person in this parliament – something that no – one else has ever had the ability to do – and Telstra have done it magnificently. They have got the Labor Party, they have got the National Party, they have got the Liberal Party, they have got the Democrats and they have got the Greens – all united in a singular distrust of Telstra. You have achieved a miracle.”

CHAIR“…I just remind you, Senator Eggleston, that it is an in camera hearing of the committee. I would view seriously any information going out of this committee room – so seriously that I would pursue it to the end. (See Senate Hansard Reports in Graham’s Relevant Information file, exhibit 15, pages 31 and 32)

Please note: Graham asked Justice Gillard if the Court could wait until after the Senate investigation before appointing a new arbitrator, but Justice Gillard refused to wait and appointed an arbitrator, unaware of the existence of the Senate Hansard in-camera records.  At this point, Graham and the other claimants had long given up on any hope of having their claims independently assessed and this is why Graham was looking seriously at the minimal financial lifeline Telstra was then offering.

4th November, 1998:  Wally Rothwell writes to Mr Peter Bartlett, noting:-

“In light of Dr Hughes’ response, the Ombudsman has asked to seek your advice as to whether you would therefore be of the opinion that both matters were, for all intents and purposes, addressed in the arbitration.” (AS-CAV 259)

Remember, on 28th April, 1995 Peter Bartlett drafted a letter to TIO Warwick Smith (see separate list re W. Smith CAV Target), pressuring Warwick Smith to write to Dr Hughes, before he left for a two-week trip to Greece, noting that:-

“It would be unacceptable to contemplate the delivery of the Award being delayed until after your return.”

Further, on 30th April, 1995 DMR and Lane presented the draft of their Arbitration Technical Report to Dr Hughes, noting the report was still incomplete and stating they needed extra weeks to investigate the billing faults raised in Alan’s claim.  The extra weeks needed to complete this report were denied, even though Alan’s billing claim documents confirmed the phone problems were still occurring. The draft of the Technical Report was then altered and Dr Hughes presented it as the final and complete Report, still dated 30th April, 1995.

5th November, 1998:  Graham writes to Mr Neil Jepson (now deceased) Barrister and Solicitor, Major Fraud Group, Victoria Police:-

“In following up on the outcome of my Monday, 12 October 1998 interview… The supply of these documents may assist the Victorian Police Major Fraud Group’s investigation.”

“Enclosed is a Draft copy of letters I will be sending to other C.o.T. members. As you will note, the letter seeks supply of Telstra and others’ documents in their possession, which should be included in these files I am providing to you.” (GS CAV 380)

Exhibit GS CAV 381 is a sworn Statement by ex-police officer, Robert Hynninen.  Although dated 8th August, 2006 is most relevant to the Major Fraud Group investigation.  Mr Hynninen  was also in attendance when Des Direen made a similar statement (see exhibit (GS CAV 372), regarding the parties associated with the COT case – Major Fraud Group investigations being under surveillance, including the interception of their telephone conversations.

11th November, 1998:  Ms Southwell, of the Communications Minister’s office, writes to Mr Pinnock:-

“Could you also please advise on a likely time-frame for finalising Mr Smith’s claim of overcharging on his 1800 number.

“A meeting has been proposed between Mr Smith and Senator Ian Campbell and your response will form the basis for the proposed meeting.” (AS-CAV 260)

29th January, 1999:  Mr Dunstone, of the Communications Minister’s Office, writes to Mr Pinnock:-

“I would be grateful if you could advise the status of the TIO’s investigation into Mr Smith’s claim of overcharging – I understand this matter has been before the TIO for some years.” (AS-CAV 261)

10th February, 1999: Mr Pinnock writes to The Hon David Hawker, MP, in response to a letter from Mr Hawker on 11th December, 1998:-

“The only matter outstanding which the TIO is considering is whether the Arbitrator considered Mr Smith’s claim for overcharging on his then 008 service when he made his Award.” (AS-CAV 262)

This confirms Mr Pinnock still hadn’t told Mr Hawker the TIO-appointed Arbitration Resource Unit admitted NONE of Alan’s billing claim documents were ever investigated and/or addressed during his arbitration.  It also confirms that, although Mr Pinnock appears to have received advice from both Dr Hughes and Peter Bartlett on these very same issues, at this time he was still considering the matters.

COMMENTARY:

John Rundell’s letter, dated 15th November, 1995 to Mr Pinnock supports the Resource Unit’s admission that the billing faults were not addressed.  Mr Rundell states the arbitration did not allow enough time for full investigation.  This letter also states, incorrectly, that Alan did not raise the billing faults until April 1995, while transcripts from Alan’s Oral Hearing (AS 105) and letters between AUSTEL and Telstra (AS-CAV 126) confirm otherwise.

Dr Hughes referred to the lack of time allowed in the Arbitration Agreement in his letter to Warwick Smith, dated 12th May:-

“the time frames set in the original Arbitration Agreement were, with the benefit of hindsight, optimistic;”

“in particular, we did not allow sufficient time in the Arbitration Agreement for inevitable delays associated with the production of documents, obtaining further particulars and the preparation of Technical reports;” (AS-CAV 180)

This was the same poor time frame Dr Hughes and Minter Ellison supposedly drafted into the Arbitration Agreement in the first place.  The same inadequate timeframe stopped DMR and Lane from getting the extra weeks they needed to properly investigate the continuing billing problems so that Telstra could address them before Dr Hughes handed down his award.  Poor presentation of Alan’s claim was not what caused his business to continue to suffer after the arbitration: it was the bad decisions of Dr Hughes and Minter Ellison when they drafted the agreement, and the “forces at work” that were “collectively beyond the reasonable control” of the TIO-appointed Resource Unit.

10th February, 1999:  Mr Pinnock misleads, again, regarding Alan’s continuing billing complaints when he replies to Mr Mark Dunstone.

“Mr Smith, however, raised issues in 1998 which I considered merited investigation, viz. whether the Arbitrator had, in his Award, dealt with Mr Smith’s claim that he had been overcharged on his 008 (now 1800) telephone service as well as complaints concerning his fax line. The TIO has carried out some preliminary, if protracted, investigation of the former claim…” (AS-CAV 263) 

Mr Pinnock discussed these same billing issues with AUSTEL, on 3rd October, 1995 and with FHCA’s John Rundell, on 15th November, 1995.  Why did Mr Pinnock state Alan only raised the billing issues in 1998?

16th February, 1999:  The late Neil Jepson writes to Julian Burnside QC:-

“I have been requested to write to you in your capacity as the arbitrator in the dispute between Telstra and Mr Graham Schorer.”

“The Victorian Police Major Fraud Group has received a number of complaints from persons, collectively known as the COT people, including a complaint from Mr Schorer. These complaints relate to the conduct of Telstra in connection with its defence of the claims the subject of the arbitration.”

“These complaints are currently being assessed to ascertain if any criminal offences have been committed and if it is established that such offences have been committed the complaints will be fully investigated with a view of bringing criminal prosecutions.” (GS CAV 382)

On page 2 of a Report entitled Facsimile Interception, Alan notes:-

“There were two occasions, during the Major Fraud Group’s investigation of the Telstra/Cot issues, when documents faxed to Neil Jepson’s office never arrived.”
(GS 367)

22nd February, 1999:  Graham writes to Mr Tony Shaw, ACA (formerly AUSTEL) Chair:-

“After the release of the AUSTEL C.o.T. Cases Report in April 1994, AUSTEL declared it was a C.o.T free zone and unilaterally refused to investigate any C.o.T. complaint about Telstra’s network performance and corporate conduct. The complaints being referred to AUSTEL were part of its legislative charter and within its jurisdiction. …”

“We formally request a meeting with you in Melbourne to present material to support the validity of our previous assertions made to and not addressed to AUSTEL/ACA. Monday, 1 March 1999 is our preferred option for the date of the meeting.” (GS CAV 383)

24th February, 1999:  Graham again writes to Tony Shaw, seeking confirmation regarding the 1st March, 1999 Meeting and noting:-

“Mr Cliff Matherson [sic] has made contact to suggest a meeting date of 3rd or 4th of March 1999.” (GS CAV 384)

25th February, 1999:  AUSTEL’s Cliff Mathieson, replies to Graham’s letter of 24th February, 1999:-

“No referrals regarding systemic network problems and faults have been received. However, in 1995/96 the TIO raised with AUSTEL matters relating to deficiencies in Telstra’s handling of fault reporting and recording processes. …”

“In reference to your request for a meeting, relevant ACA staff are not available 1 March 1999. Given that we have brought you up to date regarding the matters raised in your letter, there seems little point in proceeding with a meeting as requested.”
(GS 385)

Cliff Mathieson, on 21st March, 1995 during the Canberra Senate Telecommunications (Interception) Amendment Bill 1994 debate, informed Alan Smith, in front of AUSTEL’s Frances Wood, the BCI Cape Bridgewater tests could not have been performed as detailed in the report (see also GS CAV 385).  However, Mr Mathieson failed in his duty of care as an Official Representative of the Communications Regulator, as he should have told the TIO and Dr Hughes the BCI tests were more than just flawed, before Dr Hughes handed down his award in Alan’s case, but he did not.

26th February, 1999:  Alan Smith’s fax account (GS CAV 386) confirms he faxes three separate documents to Graham’s office (at 10:55 am, 11:20 am and 01:37 pm).  Graham’s facsimile journal for this date confirms there was no 11:20 pm document received by Graham. (GS CAV 387)

The Graham Schorer and Alan Smith facsimile interception files (see exhibits 2 and 3), confirm faxing problems between Graham’s & Alan’s offices were nothing new. These files confirm sensitive legal (client to solicitor) Telstra-related documents were intercepted prior to being forwarded on by Telstra to the intended destination.

26th February, 1999:  Alan Smith writes to the co-ordinator of the Public Interest Law Clearing House, on the advice of John Phillips, Chief Justice of the Supreme Court of Victoria noting:-

“Back in August 1992, Austel, the Telecommunication Regulator, became involved, and Freedom of Information (FOI) documents show that Amanda Davis, then the General Manager for Consumer Affairs at Austel, also suffered from incorrect charging when making contact with my business. This continuing fault had existed on my phone line from 1988/89 and so, in December 1992, I had Telstra connect another service to handle a 1800 freecall number, in the hope that it would give prospective customers easier access to my business. …”

“There are documents in the draft of my book which show that Telstra wrote to Austel on 11/11/94 stating that they would address this incorrect charging in their defence of my arbitration claims but this never happened. …”

“What is more, Telstra also wrote to the arbitrator on 16/12/94, confirming that they had informed Austel that they would address the incorrect charging in the defence of my arbitration claim…”

“…the incorrect charging to my 1800 account continued right through my arbitration and for at least a further 20 months after the ‘completion’ on my arbitration on 11/5/95.” (GS CAV 388)

26th February, 1999:  Graham again writes to Tony Shaw:

“I refer to our correspondence dated 22 February 1999 and 24 February 1999, and ACA’s response dated 25 February 1999. The ACA correspondence states, at the end of its letter on page 2, ‘…Given that we brought you up to date regarding the matters raised in your letter, there seems little point in proceeding with a meeting as requested.’ …”

“Both AUSTEL and the ACA have been advised of/supplied with C.o.T. documentary evidence proving the existence of systemic difficulty, problems and faults with the Telstra network, including network and Telstra billing software negatively impacting on Telstra’s subscriber’s [sic]services and charges. …”

“The ACA’s current decision not to accept a briefing from the C.o.T.s on this matter and not investigate this complaint, requires the ACA to provide a written statement to C.o.T. Cases Australia.” (GS CAV 389)

9th March, 1999:  Alan Smith writes to John Pinnock, noting:-

“As you can see from this one example, my fax problems continued for some considerable time after the completion of my arbitration.” (GS CAV 390)

10th March, 1999:  Graham again tries to get Tony Shaw to investigate the valid COT complaints regarding Telstra’s defective network.  Alan Smith CAV Chronology file and supporting information confirm he also notified the TIO and the ACA, that the COT arbitration process failed to investigate any of the continuing phone problems and faults that continued past his arbitration. (GS CAV 391)

11th March, 1999:  AUSTEL’s Cliff Mathieson responds for Tony Shaw (the elusive ACA Chair):-

“The TIO’s relationship with AUSTEL was set out in section 339 of the Telecommunication Act 1991 and provided for the reference of complaints to the TIO. Therefore, with the establishment of the office of the TIO, AUSTEL referred all complaints within the jurisdiction of the TIO to that office in accordance with the clear intent of the legislation. Accordingly, the ACA rejects the basis for your request for an investigation.”

“As the C.o.T. complaints are still before the TIO, my suggestion is that you provide the TIO with all of  [sic] relevant evidentiary material which you state is in your possession to assist in the progress of the arbitration or its related processes.”
(GS CAV 392-A)

15th March, 1999:  Graham again writes to the elusive Tony Shaw:-

“I refer to the ACA’s letter dated 11 March 1999, in response to C.o.T. correspondence dated 22 February, 24 February, 26 February and 10 March 1998.

  • Records should contain the C.o.T.s objection to the AUSTEL’s appointment of the TIO as Administrator of the AUSTEL Fast Track Settlement Proposal process.

The C.o.T. Cases Australia’s complaints/assertions made to AUSTEL and the ACA that the TIO:-

  • is acting in a bias manner as Administrator, …
  • has, in written statements to Parliamentary members and others, made misleading and false statements to the determent of the individual C.o.T. members ” (GS CAV 393)

15th March, 1999:  Graham writes to Senator Richard Alston:-

“C.o.T. Cases Australia and its members have concerns and reasons to challenge the continuance of the TIO’s administration of the Telstra’s arbitrations. …”

“As Telecommunications Minister, please provide written advice of which Government Agency must investigate this serious complaint.”

“Senator Alston, will you, as Minister, support your advice within a written recommendation the Agency you nominate must investigate this matter?” (GS CAV 394) 

29th March, 1999:  Graham writes to the Hon Tony Staley, TIO Council Chair:

“Individual C.o.T. members, during the last five years, have drawn the respective Telecommunication Industry Ombudsman’s attention to matters of Telstra’s corporate conduct.”

“From C.o.T. members’ perspective, these matters have not been correctly addressed nor did individual members receive a written response from the respective Telecommunications Industry Ombudsman setting out how the TIO intended to address these matters.” (GS CAV 395) 

12th April, 1999:  William Hunt file notes record a telephone call from Alan.  Alan explains that Graham is hesitant to take the money offered by Telstra because he feels he is letting Alan down.  Alan is very concerned for Graham’s mental health and wants Graham to take the money. (GS CAV 396)

14th April, 1999:  GS CAV 397 shows a conversation between William Hunt and Anthony Honour and Graham Schorer.  Mr Honour suggests Graham lowers his baseline settlement amount by $350,000.  Graham does not agree.  Graham states, “I am not prepared to prostitute my claim any further,” should be seen in relation to his agreement to take part in the proposed Senate investigation into Telstra’s conduct during the COT arbitrations.  This primary investigation led to the formation of the Senate Working Party and this is why Graham wrote to Pauline Moore, Secretary of the Environment, Recreation, Communications and the Arts Legislation Committee, on 29th September, 1997 to advise Ms Moore that his losses were between $4.3 and $12.6 million. (GS 328)

At this stage, Graham was burnt out, both physically and emotionally, and owed thousands and thousands of dollars to the various professionals who had helped in the now-crumbling arbitration.  This left him with no real alternative but to accept the $3.8 million Telstra offered.  The financial documentation in relation to the Deed of Release that Graham signed is attached to Graham’s CAV Relevant Information file as exhibit 16-a).

25th April, 1999:  Alan Smith’s writes to the Hon. Tony Staley:-

“The enclosed FOI document, No. M33445, titled “Meeting to Discuss Fast Track Rules of Arbitration”, 22 March 1994, was forwarded to me last Monday, 19 April 1999. …”

“This meeting was clearly called to discuss the rules of the COT arbitrations and, since there were no representatives of COT present, the arbitrator should not have been there either. The situation is no different to a defendant (in this case, Telstra) in a court action meeting with the Judge to pass on instructions regarding how the matter before the court should be addressed. …”

“I would be grateful if you could explain to me why the TIO allowed the meeting to take place without any input from the members of COT. (GS CAV 398-A) 

26th May, 1999:  Mr Pinnock writes to Alan:-

“I refer to numerous letters addressed to the Chairman of the TIO Council, the Hon Tony Staley, and which I have forwarded to him. 

The Chairman has asked me to advise you that Council will discuss the matters raised in your letters at its next meeting scheduled for 21 June 1999.” (AS-CAV 264) 

Alan has never received a response to the outcome of that meeting.

2nd June, 1999:  John Pinnock, writes to the Hon. Tony Staley, regarding the pending Brian Purton-Smith arbitration, and noting:-

“I am even more strongly of that view today. In part my position has hardened because of the many problems and deficiencies to the Arbitration process.” (AS-CAV 266)

Mr Pinnock didn’t tell Mr Staley, however, that 36 hours before Graham Schorer and Alan Smith signed the Telstra-established Arbitration Agreement, two very important clauses were removed without Graham or Alan’s knowledge.  Then, also without their knowledge, the clauses were later put back into the agreement for the remaining 12 COT claimants to sign.  Mr Pinnock was, although, correct in his assessment that the process had “many problems and deficiencies”.

IMPORTANT COMMENTARY

Between 29th April and 12th July, 1999 in the lead-up to Graham finally accepting less than a third of his estimated losses, numerous letters were exchanged between Graham, William Hunt, Telstra and Telstra’s solicitors (Freehill Hollingdale & Page). The arbitrator and the TIO-appointed Technical Resource Unit, never assessed the validity of Graham’s claim – including the phone problems that continued to occur at his business.

If Telstra and the TIO had told Graham someone with access to Minter Ellison’s offices had secretly removed clauses 25 and 26 from the agreement, and altered clause 24 to favour Minter Ellison, Ferrier Hodgson and DMR Group, Graham would never have signed the Deed of Release: he would have taken the matter directly to the Supreme Court of Victoria.  Graham would also never have written to the Senators in the Senate Working Party (see exhibit 16-b, Graham’s Relevant Information file) thanking them for their assistance and a fair outcome, had he been aware of the deceptive conduct of so many.  Exhibit 16-b, is a letter from Senator Carr, dated 7th July, 1999 thanking Graham for his kind words.  Had the Senate been advised Graham and Alan signed the FTAP agreement believing it was the agreement their lawyers had viewed and accepted as the official agreement, when it was altered at the last minute, the Senate would have dealt with the COT issues differently.

The indisputable evidence of the alterations to clause 24 and the removal of clauses 25 and 26 from the Arbitration Agreement before Graham and Alan signed it, and the later reversal of these changes for the remaining 12 claimants, is attached to Graham’s CAV Chronology file, at exhibit 17, entitled Agenda 9th January 2008.

13th July 1999: The Hon. Tony Staley writes to Alan Smith:-

“The Ombudsman has briefed the Council on various complaints which you have made concerning the Fast Track Arbitration Procedure (FTAP) and concerning the conduct of the Arbitrator, Special Counsel, the Resource Unit and the TIO in his role as Administrator of the COT Arbitrations. …”

“I also note that, to the extent that many of your complaints raise what may be considered legal issues, you have never exercised any rights to appeal the Award under the Victorian Commercial Arbitration Act (Vic).” (GS CAV 399)

GS 400 is a letter dated 26th May, 1999, from John Pinnock to Alan:

“I refer to numerous letters addressed to the Chairman of the TIO Council, The Hon Tony Staley, and which I have forwarded to him.”

“The Chairman has asked me to advise you that Council will discuss the matters raised in your letters at its next meeting scheduled for 21 June 1999.

The letters that were to be discussed by the Council on 21st June, 1999 were dated 19th and 25th April, and are GS CAV 398-A and GS CAV 398-B.  Although Alan asked, on a number of occasions, for a copy of the list of issues actually discussed by the Council at this meeting, particularly in relation to Alan’s matters, he has never received a copy of that list, nor an explanation of why the Council will not supply the list.

In Alan’s letter (GS CAV 398-B), he notes:-

‘Both your own office, and the then TIO, Warwick Smith, were aware that the rules that we signed on 21 April 1994 had not been drawn up independently, as we were led to believe, but had, in fact, been drawn up by Telstra and their Legal Counsel, with only a few minor cosmetic alterations made later.”

COMMENT

Had the TIO Council correctly compared the final arbitration rules to Telstra’s proposed agreement and Minter Ellison’s draft agreement (from Telstra’s Proposed Rules) it would have seen the rules Dr Hughes’ office worked with, (just before Alan and Graham signed the final agreement) were different to the Telstra/Minter Ellison rules presented to Graham and Alan for signature.

It would be reasonable to assume that, once the TIO Council discovered the discrepancies between the clauses, the Council could have immediately initiated an enquiry into those discrepancies.

19th July, 1999:  David Smith, of Corrs Chambers Westgarth, writes to Graham:-

“We have been provided with a copy of your letter to Mr Rohan, the Chairman of the Board of the TIO Ltd, dated 17 June 1999. …”

“We understand that you also telephoned HLB Mann Judd, the auditors of the TIO Ltd, on 15 June 1999 and said words to the effect that action was being commenced against the TIO. We understand that you used the word ‘fraud’ and made a statement to the effect that the TIO engaged in collusion with Telstra to disadvantage the C.o.T. …”

“We are instructed that the TIO Ltd, having made due internal enquiries, it unable to identify any basis on which civil or criminal claims might be brought against the TIO Ltd or its officers, employees or agents in connection with any matter relating to the arbitration procedures you and other of the C.o.T have been involved in with Telstra and in relation to which the TIO Ltd has played the role of administrator.” (GS CAV 401)

However, GS CAV 402, from Graham to Ms Mason of the TIO Board, shows the Major Fraud Group are satisfied there is sufficient evidence to investigate the TIO’s conduct and recommend a task force be assigned.

Towards the end of August 1999 through to 2001, Graham threw himself into trying to steer his business out of the problems it had suffered through the phone problems and 14 years of litigation with Telstra.  Much of this period was also taken up assisting with providing material to the Major Fraud Group, Graham had compiled lever-arch files of evidence supporting COT case members including Graham and Alan’s allegations their respective arbitrations had not been conducted transparently or independently.

The Alan Smith CAV Chronology file and supporting information show much of the damning evidence against Telstra and the arbitration process was never provided by the TIO during the police enquiry.

Graham and Alan believe that had all the material they now have, had been available to them during the Major Fraud Group investigation, this material would have supported the Major Fraud Group greatly in furthering their investigations.

21st September, 1999:  Alan writes to John Pinnock concerning his continuing fax problems.

“Since the problems with my fax line were not addressed in my arbitration procedure I would be grateful if you would now ask Telstra the following questions:

  • How can they charge me for a fax delivery to Mr Schorer’s office when it did not arrive there?
  • Since, according to my Telstra account, I dialled the correct number when I sent this fax, and since it clearly did not go to that number, where did this fax go to?” (AS-CAV 266)

It is important to note Alan provided Mr Pinnock with a copy of Graham’s fax journal and his Telstra account proving, yet again, the fax problems were just as bad in 1999, as they were prior to and during his arbitration

19th October, 1999:  Mr Pinnock writes to Alan, noting:-

“I have reviewed the resources which the TIO has devoted to dealing with your extra ordinary [sic] number of complaints and letters over the past years and advise you that I do not propose to take any further action in relation to these matters.” (AS-CAV 267)

Cathy and Margaret Van Run provide testaments

24th October, 1999:  AS 268 is an excerpt from a Statutory Declaration Cathy sent to David Hawker MP:

“Mr John Pinnock (Telecommunication Industry Ombudsman) has refused to address a number of Alan’s complaints.”

“Living with this type of no win situation has left both Alan and I exhausted and unsure if we can trust our business future.” (AS 268)

Cathy and Alan continued to experience this type of problem until they sold their business in December 2001

28th October, 1999:  the Hon. Tony Staley writes to Alan stating:

“The Ombudsman has repeatedly advised you in the past of your rights of appeal in relation to the Award of the Arbitrator, advice which you have not followed.” (AS-CAV 269)

30th January, 2000:  Dial-A-Secretary has problems faxing to Alan’s office:-

“On the 28th December, 1999 I was contacted by Alan Smith from Cape Bridgewater Holiday Camp re doing some computer work for him. … Alan rang and we organised for him to fax the work through. One page and a small portion of the next came through and then the line disconnected. Alan tried numerous times to get the fax through, but to no avail and he eventually had to make other arrangements for the work to be done nearer to him.”

“On 5th January 2000 Alan again contacted me regarding doing some work for him. He tried so many times over a period of about 3½ hours and finally the work came through.” (AS-CAV 270)

Attached to AS-CAV 270 is Alan’s fax account for this time showing Telstra charged for these non-transmitted calls

12th February, 2000:  Alan writes to Ray Bell, author of the TF200 Report and asks him to consider his position:-

“Many years ago, in the Court of Tiflis of then Empire of Russia, the following legal precedent was set: 

‘…that no man can take advantage of his own wrong, and that it is a principal of Law that no action can be maintained on a judgement of a court either in this country or in any other, which has been obtained by fraud of the person seeking to enforce it. That the defence is good…’ (AS-CAV 271)

9th May, 2000:  Alan Smith writes to Ms Roslyn Kellcher (ACA acting Chair), clearly defining where Telstra broke the law during his arbitration, including detailing where the arbitrator and/or TIO treated his valid allegations with utter contempt. (AS-CAV 274)

22nd May, 2000:  Graham writes to Kathryn Taylor, (FOI, Legal Group, ACA) requesting an array of documents still not seen by Graham or Alan.  Graham notes:-

“It is not appropriate for the ACA to transfer all or part of this request to Telstra. Transfer of all or part of this request would prevent the discovery of notes and comments made by Austel and/or ACA Officers on the copies of documents distributed in draft form prior to sending or received correspondence distributed for comment and/or action.” (GS CAV 404)

23rd May, 2000:  John Pinnock writes to Alan Smith:-

“You have requested me, as Administrator of your Arbitration, to supply you with a copy of the first mentioned letter. I have caused an exhaustive search of your Arbitration files held by the TIO but have been unable to find the letter. It may be that it is on other equally voluminous files held by the TIO relating to the original AUSTEL Cot report. …”

“The construction you place on the letter is incorrect.” (GS CAV 406-A)

3rd June, 2000:  Alan Smith writes to Kathryn Taylor requesting FOI documents:-

“No 94/0269-06”

“This document, originally addressed to the Hon, Michael Lee’s office on 13/10/94, was recently supplied by the ACA to the members of COT. Both pages have information blacked out. …”

“At point 4 of this letter, the writer confirms that Steve Black and his senior executives had sought to influence and manipulated the Cot arbitrations in the following ways:

  • Remove or change information regarding Telstra’s liability
  • Diminish the level of compensation payable to COT customers
  • Dismiss breaches in relation to matters of customer privacy.”

“Clearly Telstra’s defence unit knowingly committed a number of unlawful acts in an attempt to ‘diminish the level of compensation payable to COT customers.’ …”

“All this information shows clearly that an injustice has taken place in the COT arbitrations. The ACA should now be seen to be cooperating in an effort to minimise any future suffering of the COT members. To this end, I now seek, from the ACA, a full and complete copy of the document of 13/10/94…” (GS CAV 405)

Please note:    The ACA never provided a full and complete (un-blanked) copy of this document.

13th June, 2000:  ACA’s Frank Nolan writes to Alan:-

“I refer to your letter of 9 May 2000, in which you raise yet again a number of concerns relative to your Fast Track Arbitration Procedure and subsequent events.

You raised similar issues in a letter to the [ACA] dated 26 January 2000. In his response to that letter dated 15 February 2000, Neill Whitehead indicated the ACA’s position with respect to such issues. 

This position has not changed, and I have nothing further to add save to emphasise that it is not of the ACA’s role to pursue these matters and that it does not intend doing so.” (AS-CAV 273) 

Philippa Smith, Commonwealth Ombudsman wrote to Jim Holmes, Telstra’s Corporate Secretary (who was also a TIO Board Member at the time) on 20th January, 1994:-

“I received complaints from three of the ‘COT Cases’, Mr Graham Schorer, Mr Alan Smith and Ms Ann Garms, concerning TELECOM’s handling of their applications under the Freedom of Information Act (FOI Act)… 

All three assert that they require the information to support their submissions to the imminent review in accordance with the Fast Track Settlement Proposal (FTSP) agreed between TELECOM and AUSTEL, and endorsed by the then relevant Minister.” (GS CAV 408)

During the drafting of the COT Cases Report (April 1994), the COT claimants questioned AUSTEL’s chairman, Robin Davey, about this endorsement and were told that it would guarantee the Government’s commitment to have all COT claims properly assessed by the appointed assessor.  This endorsement meant the Government Regulator, now ACA, had a responsibility to investigate Graham and Alan’s valid claims as the previous regulator, AUSTEL were the facilitators of Graham and Alan’s Assessment and Arbitration Processes.   Frank Nolan’s statement in his letter of 13th June, 2000 is therefore quite wrong, the ACA did have a duty (as the facilitators of the process) to pursue these matters.

Pandora’s Box?

10th October, 2000:  Kathryn Taylor replies to Graham:-

“I refer to your numerous requests for information under the Freedom of Information Act 1982, in which you sought access to documents relating to correspondence between the ACA/Austel, the TIO, Telecom/Telstra, the arbitrators and the Minister for and/or Department of Communications

I have decided to release this information to you in full.” (GS CAV 409)

29th October, 2000:  Alan writes to the Hon. David Hawker’s secretary, Megan Campbell:-

“In support of these allegations of phone taping I have enclosed two documents. ..

In relation to problems with my mail, I enclose a copy of a letter recently sent to me from the Portland Post Office, and dated October 28, 2000. This letter confirms that overnight mail that I had posted had not arrived at its intended destination five days later.” (AS-CAV 274)

19th December, 2000:  Alan alerts Senators to what he uncovered from the TIO’s latest release of documents under the Privacy Act.  This letter discusses his concern regarding privacy issues, mail either lost completely or having been opened by persons unknown before delivery including phone interception issues, as well as Telstra FOI documents confirming they carried out surveillance of COT case premises and the TIO’s office reluctance to investigate their valid claims. (AS-CAV 275)

Perhaps some of Alan’s arbitration claim documents, which do not appear on the Arbitrator’s List of Documents received, were lost during road transit as well as through Telstra’s fax-streaming process

11th January, 2001:  Alan writes to David Hawker MP advising that:

“…Phil Corless [sic] and Lyn Chisholm (both from the same department as David Thomson) did subsequently visit my business early in 1998 and were both provided with evidence confirming that Telstra had, in fact, billed me incorrectly on the following three on my business phone lines:

  1. Facsimile service 55 267 230
  2. Free call 008/1800 service
  3. Goldphone service 55 267 260” (AS-CAV 276)

5th April, 2001:  Ms Kirsten Musgrove writes to Graham

“I refer to your recent request for access to an anonymous letter headed “Received 13 October 1994”. …

“I attach a legible copy of the above letter as completion of your request”. ( GS-CAV 411)

The duplicate of this letter, originally sent by the ACA, was more heavily censored than the copy now released.  This shows Telstra was illegally altering and removing relevant information on documents requested by COT claimants.

Before ruling in Telstra’s favour, had Justice Gillard seen this document showing Telstra altering relevant information on documents defendants requested, during an arbitration process conducted under the same Supreme Court, he would have had to allow the Senate investigations to conclude, before forcing Graham to continue the arbitration.  The very issue Graham raised, in his legal argument with Justice Gillard, was Telstra’s defective supply of FOI documents.  With the 13th October, 1994 letter and Alan Smith’s Statutory Declaration attesting to Rod Pollock altering information on documents requested by Alan, the same Rod Pollock named in the 13th October, 1994 letter (see  GS-CAV 411), Justice Gillard would have had to rule in Graham’s favour.

Had Graham been given this grace of time by Justice Gillard, he would have had longer to find someone to arbitrate his claim and would not have been under the same pressure he was when he finally accepted Telstra’s lifeline!

7th June, 2001:  Ms Musgrove responds to Graham’s FOI requests, noting:-

“Due to the magnitude of the request it was decided to process each box as the documents are discovered.” ( GS-CAV 412)

19th June, 2001:  Graham writes to Ms Musgrove, noting:-

“On examining the documents and the enclosed Schedule, it appears that the ACA are using a processing method, of these individual and precise FOI requests, in a manner that makes it impossible for a third party to identify which FOI request including which part of that request, the document has been supplied in response to.” ( GS-CAV 413-A)

12th July, 2001:  Ronda Fienberg, a Melbourne-based secretary and Alan do a number of line tests on the incoming and outgoing fax line.  Both Cathy and Graham also experienced the same lock-up problems when doing similar line tests during this period.  This note from Ronda clarifies there were lock-up problems still apparent on Alan’s business service lines. (AS-CAV 277)

Please note: this was the same type of lock-up fault Telstra acknowledged was a moisture-related problem the EXICOM TF200 experienced.  On 27th April, 1994 Telstra removed an “alleged drunken TF200 from the camp premises” and installed a similar EXICOM TF200.  Could this second EXICOM have been part of Alan’s problem?

9th August, 2001:  Alan Smith writes to the ACA Chair, Tony Shaw:

“I consider the ACA has failed to correctly respond to my written complaints, in particular, the reported conduct during Austel/TIO/Telstra/Fast Track Settlement Proposal/Fast Track Arbitration Procedure.

The ACA’s decision is ignoring the following facts:-

  • Austel/ACA is the Federal Government appointed guardian of all Australian Telecommunication consumers.
  • Austel purposely drafted the Fast Track Settlement Agreement. …
  • Austel now the ACA, as the Telecommunications Regulator, under it legislative charter was an involved partly during the processing of the Fast Track Settlement Proposal, Fast Track Arbitration Procedure and Special Arbitration. …

Due to ACA’s refusal to fulfil its Regulatory Obligation to me, as a telecommunications consumer, with a legitimate complaint about the conduct of the TIO, the TIO Resource Unit, the appointed Arbitrator and Telstra, I am now seeking the intervention of others to have the ACA compelled to comply with its legislative charter.

As part of my decision, enclosed is an authorisation for Graham Schorer as spokesperson for CoT Cases Australia to act on my behalf.” ( GS-CAV 413-B)

The phone issues continue:  2002

In January 1991, Telstra forwarded an open offer setting out Telstra’s agreement to additional Terms and Conditions offered to Golden Messenger, Graham’s business, as an inducement to connect to the Telstra ISDN network for the receipt of incoming calls.  Golden Messenger relied on that agreement – and still does.

As part of Telstra’s accelerated upgrade of the analogue PSTN network to a digital network, Telstra installed digital exchanges, manufactured by companies other than Ericsson, which had the capacity within the individual exchanges to provide both PSTN and ISDN services.

In September 1993, when Telstra were required to install the optic fibre ISDN link, Telstra attempted to connect a copper wire at Graham’s business.  This prompted Graham to contact Telstra regarding the undertakings and commitments they provided the company as part of their supply of the ISDN deal in 1991.

In 2002, Telstra informed Graham they were now ready to switch off his old system (which originally cost Graham in excess of $80,000 to install) and connect him to another service. Once again, Golden Messenger and Telstra locked horns in another costly court battle. As the wrongs and rights of this whole affair are voluminous, these matters are not discussed here.

Legal material giving a brief overview of this matter is attached for reference as exhibit 18 in Graham’s CAV Chronology file.

By 2002/3, Graham and Alan had accumulated thousands of FOI, and other relevant documents, which were previously available (during their respective arbitration and appeal periods) but never supplied when requested.  The collected documents blatantly show some sinister dealings and prompted Graham to involve Allen Bowles to seriously investigate Alan and Graham’s arbitration matters.

During this period, Senator Len Harris (One Nation) pushed to have some of the COT issues reopened and settled via the intervention of Senator Richard Alston.  Phone calls to Alan Smith’s residence and meetings with Senator Harris nearly achieved this, as did Graham commissioning legal expert David Bailey, to draft the terms of reference of this review (see 23 September, 2003).

CHAPTER EIGHT

Threats from a Senator

16th August, 2001: Senator Eggleston threatens Alan with possible legal action, noting:-

“The fact that you have received unauthorised confidential committee documents is a serious matter, but if you disclose these documents to another person, you may be held in contempt of the Senate.” (AS-CAV 278)

Some of the Senate documents referred to by Senator Eggleston are in-camera Hansards, dated 6th & 9th July, 1998 showing a group of Senators attempting to address Telstra’s conduct during and after the COT arbitrations.  Note: Ted Benjamin was Telstra’s Liaison Officer to Graham and Alan’s arbitrations, while a member of the TIO Council at the time.

Hansard:

“Can you see the whole thing is unfair?” …

“When I said ‘starve people into submission,’ Mr Benjamin shook his head in opposition to my comment, which he is fully entitled to do. I agree with you, Madam Chair, about the difficulty of those who have had their cases resolved under arbitration. Many of them will tell you that, if they did not accept it, they could not fight on. Some people are fighting on.” (AS-CAV 278)

With statements like this from Australia’s sitting Senators regarding Telstra, is it any wonder Alan has been threatened the way he has?  Of course, the Coalition Government didn’t want Telstra’s unethical conduct towards the COT cases exposed while they were selling off this government asset

14th September, 2001:  Senator Nick Minchin’s secretary writes to Alan noting:-

“I have been in contact with the office of the Hon Richard Alston, the Minister for Communications, Information Technology and the Arts, and I have been advised that a reply will be sent to you shortly addressing the matters you have raised.” (AS-CAV 279)

18th October, 2001:  John Neil, ACA Executive Manager, writes to Alan:-

“I advised you on 30 July 2001 that it is not the role of the ACA to address these matters. I note you have previously raised them with other authorities including the Commonwealth Ombudsman’s Office and the Victorian Police.

I do not propose to engage in further correspondence with you on these matters.” (AS-CAV 280)

7th November, 2001:  Senator Brett Mason writes to Alan, stating:-

“As advised in my first contact with you, the Minister for Communications, Information Technology and the Arts had undertaken to investigate your concerns and respond to you on behalf of the Coalition. (AS-CAV 282)

28th December, 2001:  Alan writes to a number of Government Ministers, noting:-

“As you are already aware, I recently sold my business, the Cape Bridgewater Holiday Camp and Convention Centre. The new owner Jenny and Darren Lewis took over on 23rd December 2001.”  AS-CAV 282 

Alan explains Mr and Mrs Lewis are experiencing phone problems and then says:

“How is it that, although the TIO, John Pinnock, is more than fully aware of the problems I have faced because of Telstra (problems which lasted for fully five years after the so-called ‘completion’ of my arbitration), he has never done anything to assist me?”

19th February, 2002:  Alan offers to provide Senator Richard Alston with fresh evidence via David Hawker’s office concerning his continued allegations.

“Ms Sue Owens, Barrister, received the following information from the Telecommunication Industry Ombudsman’s office early this year. The information confirms the role played by the TIO’s office in covering up criminal behaviour by Telstra, and others, during my arbitration.

Would you prefer me to forward this fresh evidence to your office or to Senator Alston’s office?” (AS-CAV 283)

15th March, 2002:  David Hawker MP writes to Alan:-

“I have ensured the Minister for Communications and Information Technology is aware of your offer to provide fresh evidence.” (AS-CAV 284)

27th March, 2002:  David Hawker’s writes on behalf of Senator Alston, saying:-

“I have received an interim response from the Minister for Communications, Information Technology and the Arts, Senator the Hon Richard Alston MP, which informs me the matter is currently receiving attention and will be responded to shortly.” (AS-CAV 285)

12th July, 2002: Senator Alston responds to David Hawker MP:-

“As the material provided by Mr Smith relates to the arbitration undertaken by Dr Gordon Hughes of Hunt and Hunt, under the administration of the Telecommunications Industry Ombudsman (TIO), I have referred your letters to the TIO for advice.” (AS-CAV 286)

17th July, 2002:  The Minister’s Office writes to Alan regarding his offer to provide irrefutable evidence his arbitration was not conducted transparently by the TIO-appointed Arbitrator and Resource Unit:-

“I would, therefore, ask that you refrain from providing any further material until the Telecommunications Industry Ombudsman has provided advice on the material you have supplied to date.” (AS-CAV 287)

14th October, 2002:  Senator Alston’s Office writes to David Hawker MP:-

“Thank you for your representations of 23 September 2002 on behalf of Mr Alan Smith concerning Telstra. 

The issues raised in your letter are receiving attention and the Minister will respond to you shortly.” (AS-CAV 288)

16th October, 2002:  Telstra FOI folio 100264, concerns Mr Lewis’ phone faults and confirms the new owner of Alan’s business is having phone problems:

“Customer has contacted MP again re service as he is not receiving calls on message bank or *10#. Customer is aware previous owner of business also had problems with service [sic]. Customer said he was told by Telstra that there was a problem in his exchange.” (AS-CAV 289)

18th October, 2002:  Telstra FOI folio 100266 re the Lewis phone problems, says:-

“The TIO have now raised a Level 1 complaint on behalf of Mr & Mrs Lewis. The TIO have specifically mentioned in their correspondence that the TIO have previously investigated a number of complaints raised by Alan Smith the previous account holder for this service.” (AS-CAV 290)

8th November, 2002:  This Portland Observer newspaper article, entitled Holiday camp still plagued by phone and fax problems, says:-

“The telecommunications problems which plagued former Cape Bridgewater Holiday Camp operator Alan Smith continued to beset current owner Darren Lewis.” ( GS-CAV 414)

Although Alan Smith’s phone problems began in 1988, it is now believed many of the phone and fax problems that occurred, at least from 1991 on, were caused by moisture and were exacerbated by heavy rainfalls in the area.  Cape Bridgewater faces the Southern Ocean and always has had a moisture problem.  This was not taken into account nor discussed, in any of the technical findings of the arbitrator or his Technical Resource Unit, even though Alan included this information in his submissions.

Please note: The Cape Bridgewater Holiday Camp was also connected to a single ‘copper pair’ (see Senator Harris’ media release at exhibit  GS-CAV 415).

When Senator Len Harris meets with Alan Smith and other COT claimants, Alan provides information regarding the problems Graham has experienced over the years, in his role as COT spokesperson, as well as the problems the new owners of Alan’s business are still having to contend with, including the business still being connected to the Telstra network via a single pair of wires.  Senator Harris is extremely shocked at this information and prepares a press release for the following day, on behalf of the COTs.  It was significantly censored before it was released, showing just how much power Telstra could wield, as part of their strategy, to downplay the COT claimant’s valid claims.

14th November, 2002:  Senator Len Harris (One Nation) sends out his media release entitled, Alston Praying For Continued Drought.

“In other words, sell the whole shooting bag before it rains and let someone else worry about fixing it. …”

“In light of evidence presented by the Communications Electrical Plumbing Union to a senate inquiry then to the Estens inquiry, other court submissions and a large dose of anecdotal evidence from Telstra employees, there seems no doubt the copper and lead network could implode with the onset of rain.”

“Numerous reports from regional areas that have recently received rainfall, reveal the subscriber fault rate has doubled and tripled due to lack of proper maintenance, faulty materials and understaffing. …

  • Faulty materials such as Hi Gel 3M 442, that has corroded copper joints
  • Contractors cutting corners with cable installation
  • Management giving capital works an economic priority order for replacing faulty cables and equipment i.e. those exchange areas that produce the most profit given priority for repair or replacement. This process could preclude most country areas. …”

“In city and country telephone exchange areas, low gas alarms, sometimes 200 or more a day, are sending technicians in a scurry from exchanges to manholes across the city or country roads and back. …”

“According to the union the CAN or Customer Access Network (customer land lines) accounts for 50 to 60 per cent of Telstra’s fixed costs, ie maintenance bill, but generates the lowest rate of return. …”

“Some industry analysts have placed the capital expenditure to replace the aging lead and faulty copper network in the hundreds of millions to perhaps the billion-dollar range. …”

“Estens, in recommendations 2.7 and 4.2, has clearly identified problems with the pair gain system, that allows multiple calls on a single pair of wires. It provides a good financial return for Telstra but is unfair on customers and repairmen.” ( GS-CAV 415-A)

This media release, by a Senator prepared to tell the truth about the whole story, page after page, and not the story the administrators of the COT arbitrations would have preferred to see released, because the truth would show they allowed Telstra to:-

  • delete relevant information from documents legally requested under FOI by the COT claimants;
  • hide their defective network faults in flawed defence documents such as the BCI test results; and
  • use the manufactured TF200 EXICOM report to support their defence.

These actions have now brought Graham and Alan to where they are today.

Before Graham and Alan agreed to enter into arbitration, the then-regulator, AUSTEL (now ACMA), promised Telstra would carry out Service Verification Testing (SVT) at their business premises before the assessor/arbitrator could hand down a decision. In Graham’s case, no such testing was ever carried out and in Alan Smith’s case, Mr Pinnock, the Telstra Board, ACMA and the past-Government Minister have continually allowed Telstra to hide behind what we now know was a seriously deficient SVT at Alan’s business.

Again, this contributed to the situation facing Graham and Alan today.

Exhibit GS-CAV 415-B is a copy of media release dated 31st January, 2003 which supports Darren Lewis’ continued problems with the Cape Bridgewater Coastal Camp and Senator Len Harris’ media release.

15th November, 2002:  Senator Alston’s office writes to David Hawker MP:-

“Thank you for your representations of 8th November 2002, on behalf of Alan Smith concerning Telstra.

The issues raised in your letter are receiving attention and the Minister will respond to you shortly.” (AS-CAV 291)

7th – 8th December, 2002:  Toni O’Loughlin writes a Financial Review report:-

“Telstra admitted on Friday that its’ [sic] network was riddled with more than 112,000 service faults, some of which had the potential to imperil callers’ safety if not fixed. …”

“While Telstra could not confirm the accuracy of Senator Mackays’ document – which showed there were 111,755 service problems in the network – the telco admitted its’ most recent records showed the number of faults was higher at 112,159 [sic]. …

“Senator Mackay also alleged that some of the faults had been lingering for years without being fixed.” ( GS-CAV 416)

Although Alan and Graham continued to complain to Telstra and AUSTEL during their arbitrations (see Graham’s Chronology part 1, exhibit GS 191) regarding the problems and faults, Telstra’s arbitration defence of Graham and Alan claims makes no mention of its knowledge of these within their network.

Evidence provided to Mr Ralph, Deputy Chair of Telstra Board confirms Telstra acted unlawfully during Alan’s arbitration

16th December, 2002:  Alan’s letter and attachments, sent to Mr Ralph, discusses the Channel Nine Sunday Program on the COT arbitration issues:-

“I understand your anger, as a board member of Telstra, but I suggest you seek out the truth of the matter before you make any more unfounded allegations.” (AS-CAV 292)

20th December, 2002:  Mr Gration, Telstra’s Corporate Secretary writes to Alan, stating:

“I refer to your letter dated 16th December to Telstra’s Deputy Chairman, John Ralph. Mr Ralph has asked me to review the material enclosed with your letter and respond on his behalf. I expect to be in a position to do so in January 2003.” (AS-CAV 293)

19th January, 2003:  Darren Lewis writes to the Hon David Hawker MP.  This 11-page letter discusses all the phone problems Mr and Mrs Lewis inherited after purchasing the Cape Bridgewater Holiday Camp. (AS-CAV 294)

31st January, 2003:  Telstra FOI 100274 concerns Mr Lewis’ phone problems.  This document was in the TIO’s Report on the Lewis issues:-

“TIO L3 complaint received. Complaint is complex and has been on-going for a while. Please refer to files for full details.” (AS-CAV 295)

31st January, 2003:  Mr Gration refuses to investigate the issues Alan raised in his correspondence to Mr Ralph, Deputy Chair of the Board.  Mr Gration states:-

“However Telstra will of course consider fairly and appropriately any fresh evidence brought to our attention in support of your claims.” (AS-CAV 296)

Alan provides fresh evidence confirming:-

  • Telstra knowingly used flawed (BCI Cape Bridgewater) test results;
  • Telstra knowingly used deficient Cape Bridgewater (SVT tests report); and
  • Telstra conjured a manufactured TF200 report as arbitration defence material.

26th February, 2003:  Mr Pinnock writes to Alan with more of the same denials:-

“In your letter of 3 February you state that the TIO has a duty to speak to the new owners of Cape Bridgewater Holiday Camp who, you say, are blaming you for not disclosing to them ongoing problems with the telephone service. That is a matter between you and the new owners.” (AS-CAV 297)

21st March, 2003:  Law firm Harwood Andrews writes to Darren Lewis, re Alan Smith’s misleading conduct:-

“Terms of Engagement – Investigation of possible action against Alan Smith, former owner of the Cape Bridgewater Holiday Camp, for misrepresentation in the sale of the camp in 2001. (AS-CAV 298)

When Alan sold the business to Mr Lewis, he honestly believed disgruntled Telstra employees were orchestrating the continuing problems still being experienced at the holiday camp.  He believed that as soon as a new owner purchased the business, these continuing phone and fax problems would stop.

3rd April, 2003:  Mr Gration replies to Alan. This letter has to be read to be believed. Mr Gration refuses to acknowledge:-

  • The Bell Canada Report is fundamentally flawed;
  • Telstra’s TF200 Arbitration Report is fundamentally flawed;
  • Telstra’s SVTs conducted at Alan’s premises 29th September, 1994 are deficient; and
  • Alan’s evidence regarding the 008 billing problems is correct. (AS-CAV 299)

Note: This is regarding the fresh evidence Mr Gration stated he would consider in his previous letter.

Two commercial assessment processes lost

15th April, 2003:  Stringer Clark (solicitors) write to Darren Lewis regarding possible action against Alan Smith for misleading and deceptive conduct (AS-CAV 300)

By the end of April 2003, Darren and Alan are discussing amicably how to overcome his anger towards Alan regarding the phone and fax problems he inherited when he purchased the business.  These discussions stopped any legal action against Alan.

14th August, 2003:  Doug Field, assistant Commonwealth Ombudsman, officially transfers Alan’s fax interception complaints over to John Pinnock. (AS-CAV 301)

19th August, 2003:  Senator Alston’s office writes to David Hawker MP:-

“Thank you for your representation of 8 August 2003 on behalf of Alan Smith concerning Telstra services.

The issues raised in your letter are receiving attention and the Minister will respond to you shortly.” (AS-CAV 302)

24th August, 2003:  Alan provides Mr Hawker with the evidence he provided Doug Field:-

  • Telstra has continued to selectively intercept my faxes up to and including 24th December, 2002;
  • Telstra perverted the course of justice during the COT arbitrations; …
  • Telstra advised Mr Pinnock that they had knowingly withheld 40% of the FOI documents I asked for during my arbitration – until after the arbitrator had deliberated on my claim. (AS-CAV 303)

28th August, 2003:  Alan writes to Mr Pinnock amid concerns the TIO won’t investigate his facsimile claims independently:-

“I sincerely hope you will provide me the results of your current investigation and thereby avoid yet another failure in your duty of care.” (AS-CAV 304)

In this letter, Alan makes a number of statements concerning documents faxed by him during his arbitration apparently not being received by Dr Hughes.  Alan also confirms Telstra’s arbitration defence actually acknowledged Dr Hughes’ office could not have received some of Alan’s faxes, yet his Telstra fax account shows they were faxed.

3rd September, 2003:  Alan writes again to Doug Field alerting him that he first raised these fax issues with the TIO’s Office back in 1994:-

“When the TIO’s office began their first investigations into the problems I was experiencing with my fax during my settlement/arbitration process in 1994, I told Warwick Smith, who was the then TIO, I had not provided all the information I had in support of my claims but he still didn’t ask to see the balance of my evidence. During the second TIO investigation into the same matters in 1997/98, I advised Wally Rothwell, then the Deputy TIO, that I still had not provided all the information I had because there were so many documents. Again the TIO’s office did not ask to see the rest of my evidence.

I await your response regarding how my evidence can be officially presented to the TIO.” (AS-CAV 305)

During this period, neither Mr Field nor Mr Pinnock advised Alan of where he could officially send the balance of his fax evidence for investigation. This evidence is attached to the Graham Schorer and Alan Smith fax interception file dated December 2006, exhibits 2 and 3.

12th September, 2003:  David Hawker MP writes to Alan:-

“I can assure you that this week while in Canberra I personally delivered the report and a copy of your covering letter to the Minister for Communications and Information Technology.” (AS-CAV 306)

23rd September, 2003:  David Bailey (lawyer) provides Graham with a possible Terms of Reference for Senator Len Harris to provide to the Minister for Communications, Information, Technology and the Arts for use in the forth-coming Commercial Assessment Process.

7th October, 2003:  Senator Len Harris emails Graham Schorer:

“just picked this up trawling through over 1300 e-mails,”

“had a quick look at the index (Can’t go through the lot) and you seem to have covered all aspects,”

“I will start the whole process again with Daryl Williams new staff re the commercial assessment of all the Cot’s,”

“I will continue to push Kenneth and Max’s issue with Ziggy as I feel th s [sic] the way to open the door for everyone,” ( GS-CAV 417)

Graham writes to David Bailey, summarising some of Telstra’s, and other parties, terrible conduct. ( GS-CAV 417)

Exhibit 418, re Independent Commercial Assessment and Resolution of Claimants Claims Against Telstra, states:-

“On behalf of the Commonwealth, the Minister for Communications, Senator Richard Alston, undertook to Senator Len Harris to have the long outstanding Claimants’ claims in respect of alleged service difficulties, interruptions and faults against Telstra Corporation Limited (including its subsidiaries)…

7th October, 2003:  Mr Pinnock refuses to investigate the interception fax issues:-

“As you note, on 14 August 2003, the Commonwealth Ombudsman formally transferred to the TIO your complaints relating to ‘fax screening and the blank fax pages…’.

In my opinion, the information you have supplied amounts to no more than speculation and innuendo and I am not persuaded that there is credible evidence to warrant an investigation by the TIO.” (AS-CAV 307-A)

COMMENTARY – Most important

Also attached as exhibit (AS-CAV 307-B) is a Sworn Testament from Peter Ross Hancock, dated 11th January, 1999.  Mr Hancock acknowledges he provided Telecommunications services to Golden Messenger since 1992.  Mr Hancock concurs that after extensive fax testing at Golden Messenger on 4th January, 1999 and 11th January, 1999, he observed:

“a) the discrepancies (that is the second footprint) in the fax headers raised by the tests referred to above and b) the differences in the fax headers attached (marked ‘B’) relating to faxes”.

Mr Hancock then investigated further exhibits of faxes either received or sent between Golden Messenger and their lawyers, COT case premises and Alan Smith as has been proven elsewhere in this Chronology.

3rd December, 2003:  The Minister’s office again writes to David Hawker MP:-

“Thank you for your representations of 14 November 2003 on behalf of Mr Alan Smith concerning Telstra.”

“The issues raised in your letter are receiving attention and the Minister will respond to you shortly.” (AS-CAV 307-C)

11th December, 2003:  Mr Gration, Telstra’s Corporate Secretary, writes to Alan, stating:-

“As I have stated in previous correspondence, there are clearly significant difference between your position and Telstra’s on matters you have raised.” (AS-CAV 308)

12th January, 2004:  Philip Ruddock, Attorney General, writes to Alan:-

“I refer to your letter of 13 November 2003 in relation to the arbitration of your dispute with Telstra. …

“As indicated in my letter of 10 November 2003, I am not in a position to comment on the actions of Telstra in this matter, nor am I able to comment on the conduct of the arbitration of your complaint by the Telecommunication Industry Ombudsman.” (AS-CAV 309)

27th January, 2004:  The Minister’s office again writes to David Hawker:-

“Thank you for your representations of 18 December 2003 on behalf of Alan Smith concerning Telstra issues.

“The issues in your letter are receiving attention and the Minister will respond to you shortly.” (AS-CAV 310)

3rd February, 2004:  The Federal Attorney-General’s office writes to Alan:-

“I refer to your letter of 2 December 2003 to the Attorney-General, the Hon Philip Ruddock MP, regarding alleged unlawful interception of telecommunication services. The Attorney-General has asked me to reply on his behalf. …”

“…I would encourage you to draw this to the attention of the AFP”. (AS-CAV 311)

11th February, 2004:  The minister writes to David Hawker MP:-

“Telstra advised the Department that it rejects Mr Smith’s claims that his facsimile messages have been intercepted. …

The TIO advised the Department that it wrote to Mr Smith 7 October 2003, advising that the information provided by Mr Smith, both directly and through the Commonwealth Ombudsman, amounted to no more than speculation and innuendo. I understand that the TIO further advised Mr Smith that the material did not warrant any further investigation by the TIO.” (AS-CAV 312)

19th February, 2004:  David Hawker MP writes to Alan:-

“At my request the Minister has again investigated your claims and he clearly supports the previous Minister’s advice that the Government is regrettably unable to assist you any further with these issues.”

“I hope you can now consider this matter closed” (AS-CAV 313)

25th March, 2004:  John Rohan, Chair of the TIO Board writes to Alan, stating:

“Despite many criticisms of the procedures the board also notes that at no time did you seek to exercise the right of appeal provided for by the procedure. Further, that the Senate Committee did not suggest that the Award should be re-opened.” (AS-CAV 314) 

COMMENTARY

  1. The Senate Committee, referred to by Mr Rohan, were to investigate Alan’s matters after the first nominated COT five had their matters investigated by the Committee. Senator Richard Alston confirmed the first COT five were the litmus tests for the remaining 16 COT members on the Senate B list.  Exhibit AS-CAV 314 confirms, on page four under the heading Schedule B, Alan was one of the nominated 16 names to have his arbitration FOI matters investigated.  It was only due to a coalition intervention that the 16 were not treated in a similar fashion as the first COT five.  Mr Rohan is totally incorrect when he states that:-“the Senate Committee did not suggest that the Award should be re- opened”.
  2. During the Senate Committee investigation, John Pinnock informed Senator Alston that Alan’s Telstra-related arbitration issues were still under investigation. Exhibit AS 262 dated 10th February, 1999 confirms Mr Pinnock was informing Coalition Government Ministers (during the period the Committee were winding down from their investigations) Alan’s billing issues were still under investigation.

12th May, 2004:  Phillip Carruthers, from the TIO’s Office, writes to Alan regarding information provided for assessment purposes.  He notes:-

“The letters for Ms Marsh, Hon Staley, Rev Dr Newell, Mr Cleary and Mr Brown will be passed on to them by hand at the Council meeting scheduled for 19 May 2004.” (AS-CAV 315)

29th July, 2004:  The Hon. Tony Staley, TIO Council Chair writes to Alan:

“I have been authorised by the Council of the Telecommunication Industry Ombudsman (TIO) Scheme to reply to letters which you have sent to various members of Council, including myself.  Council is aware that you have sent the same or similar letters to Directors of the TIO Board. …

“It is not within the role of the TIO Council to reconsider the Arbitrator’s conduct or the Award we made.” (AS-CAV 316)

8th October, 2004:  Mr Rohan, TIO Board Chair, and Mr Staley write to Alan:-.

“Mr Warwick Smith has not been an employee of the TIO Ltd for many years, meaning that the Board and Council have little or no practical ability or need to reprimand him even if any misconduct by him could now be proven.

“In light of all of the above, neither the Board nor Council considers it necessary or appropriate to consider your recent claims any further.” (AS-CAV 317)

10th January, 2005:  Mr Rohan and Mr Staley try to minimise Alan and the truth concerning what he uncovered:-

“Having read that letter, it remains the case that neither the Board nor Council of the TIO Limited considers that Mr Warwick Smith or Mr John Pinnock has acted inappropriately regarding your arbitration or associated matters.

Neither the Council nor the Board considers it necessary or appropriate to consider your recent claims any further

Insofar as your claims relate to alleged criminal conduct, they should be referred to the proper authorities.” (AS-CAV 318)

22nd April, 2005:  Senator Helen Coonan’s office writes to Alan: 

“I refer to your further correspondence of 22 March 2005 to the Hon David Hawker MP concerning your claims against Telstra.

I wish to correct the impression that the Minister is investigating further claims against Telstra, including claims by some of the original ‘Casualties of Telecom’.” (AS-CAV 319-A) 

15th September, 2005:  Senator Barnaby Joyce writes to both Graham and Alan:-

“As a result of my thorough review of the relevant Telstra sale legislation, I proposed a number of amendments which were delivered to Minister Coonan. In addition to my requests, I sought from the Minister closure of any compensatory commitments given by the Minister or Telstra and outstanding legal issues. …”

“I am pleased to inform you that the Minister has agreed there needs to be finality of outstanding COT cases and related disputes. The Minister has advised she will appoint an independent assessor to review the status of outstanding claims and provided a basis for these to be resolved.”( GS-CAV 419)

22nd September, 2005:  An internal Coalition email, concerning the agreed-to COT commercial settlement proposal, from Nikki Vajrabukka notes:-

“Key issues for consideration include:

  • Analysis of Senator Joyce’s request, and Minister’s response
  • What the Minister can and can’t do
  • Whether there is any basis to re-open the investigations/appoint an independent assessor
  • If so, who will that be?
  • What powers does the Minister have to direct a person to do so (for example direct the TIO to revisit the cases?)
  • Whether there were any compensatory commitments or warrants of compensation given by the Minister, the Department or Telstra.” ( GS-CAV 420)

Please note:  the question as to whether the Minister had the power to grant a Commercial Assessment was only raised with Senator Joyce after the Coalition Government secured his crucial vote for the full privatisation of Telstra

29th September, 2005:  David Lever, Department of Communications, Information Technology and the Arts, sends an internal email to from to a number of Department Personnel regarding an Independent Assessor:

“Matt Stafford rang to say that the Minister wants a draft letter to Senator Joyce by Friday next week that:

  • re-states what she said she would do in her last letter to him;
  • demonstrates that processes are in place to meet her commitment;
  • indicates the cases/persons who the independent assessment would cover, and
  • asks Senator Joyce whether this should meet his needs. …

“I suggest that we do all we can to restrict coverage to the 16 COTs that were considered by AUSTEL in its 1994 report as inclusion of any others without some justification, eg that they were mentioned in the Senate’s 1999 report on COTs, would risk irresistible pressure to extend to numerous others who have had disputes with Telstra over the past 10 years. …”

“I also suggested that there may be advantages in appointing ACMA as the independent assessor rather than a consultant to the Department. He has not opposed to this idea.”
(GS-CAV 421)

The Hon Senator Coonan Reneges on her Commitment given to Senator Barnaby Joyce Re: Independent Assessment Process

Bullet point 2 above confirms there was a process in place to meet Senator Helen Coonan’s commitment given to Senator Joyce for his vote to allow the government to privatise Telstra. So why did the Minister’s Department not honour that commitment once Senator Joyce cast his vote?  This misleading and deceptive, unconscionable conduct caused Graham and Alan further trauma.

18th October, 2005:  An internal memo to Senator Helen Coonan states:-

  • “Senator Joyce has written to you seeking urgent advice on your proposed approach to the conduct of independent assessments of various claims against Telstra by customers or former customers or contractors of Telstra.
  • We propose you ask the Australian Communications and Media Authority (ACMA) to conduct the assessments. …
  • There is significant risk for the Government if expectations in relation to compensation are created among claimants that cannot be met by the Government.” ( GS-CAV 422)

Exhibit GS-CAV 423 is an unsigned Government memo from Senator Coonan’s office, received by the Cot cases during their FOI requests to the Minister’s office regarding this assessment process.

“According to Minister’s understanding, assessor to:

  • review the status of all outstanding claims and
  • provide a basis for any sustainable claims that have not been resolved through earlier processes to negotiate a possible settlement with Telstra”

“Possible Loopholes

  • ‘sustainable claims not resolved through earlier processes’ – on the basis that information provided by the claimants raises no new issues, particularly regulatory issues that require addressing by the Minister or the ACA/ACMA.
  • If concerns relate to conduct of Telstra, then these should be raised with the Commonwealth Ombudsman?
  • If the CoTS have evidence of unlawful activities, these should be brought to the attention of the police or relevant law enforcement authorities.” ( GS-CAV 423)

19th October, 2005:  David Lever, advisor to Senator Coonan, emails Departmental Personnel:

“As discussed with Andrew yesterday, the minister has signed and sent a letter to Barnaby Joyce that deals with the above and local presence plan issues. We have not seen it but I made comments on the draft sent yesterday afternoon by matt, seeking to retain the tight constraints on the scope of the assessment, which he had relaxed.”

Simon Bryant responds:-

“I think Jodi be getting confused about what the assessment is meant to do (or at least what we are recommending) ie an assessment of process and what further resolution channels may be available to people. We are arguing strongly that the assessment should not be about the merits of each case.” ( GS-CAV 42)

QUESTIONS

  1. Who was Simon Bryant, to argue strongly “that the assessment should not be about merits of each case”?
  2. How can an independent commercial assessment process be independent, if those administering the process seek to retain tight constraints on the scope of the assessment process?
  3. Why did the Federal Government give Senator Joyce its commitment, in exchange for his vote to allow the Telstra privatisation bill to be passed. Then, as soon as they secured his vote, renege on that commitment?

21st December, 2005:  David Lever emails TIO John Pinnock:-

“Subject: independent assessment of claims against Telstra

“Some of the former ‘COTs’ are among the 22 who will be asked if they wish to participate in the process. …

“The assessment will focus on process rather than the merits of claims, including whether all available dispute resolution mechanism have been used.” ( GS-CAV 425)

3rd March, 2006:  In AS-CAV 320, Alan advises Mr Pinnock, that he is about to enter the Minister’s independent assessment process and requires a number documents held by the TIO.

As of 2018, Alan still hasn’t seen the documents he requested.

CHAPTER NINE

The Hon David Hawker, Speaker in the House of Representatives assists Alan in his independent assessment process

10th March, 2006:  The Hon David Hawker writes to Alan:-

“I wish to acknowledge receipt of your correspondence dated 23 February and 27 February along with your facsimile transmissions of 6 and 9 March. I will ensure this material, including the corrected version, is forwarded to Minister Coonan…” ( GS-CAV 442)

17th March, 2006:  David Lever writes to Alan (the day before Alan signs the Minister’s independent assessment process):-

“If the material you have provided to the Department as part of the independent assessment process indicates that Telstra or its employees have committed criminal offences in connection with your arbitration, we will refer the matter to the relevant authority.” (AS-CAV 321)

COMMENTARY:

Attached to Alan’s independent assessment claim was evidence supporting:-

  • the BCI tests, allegedly conducted at the Cape Bridgewater RCM, could not have been performed at the times and dates as shown in the report;
  • that regardless of Telstra being advised by the Regulator that their SVT tests carried out at Alan’s premises were deficient, they still provided the arbitrator Sworn Testaments to the contrary;
  • Telstra submitting fundamentally flawed laboratory findings (TF200) to the arbitrator;
  • interception and privacy issues;
  • the Ericsson CCS7 testing equipment could not operate at the same time as the Ericsson Neat Testing was underway on the same line, yet the arbitrator accepted they could; and
  • the Ericsson AXE 104 Portland telephone exchange suffered with problems and faults right through and after Alan’s arbitration.

Question:

Why didn’t Alan receive one piece of information surrounding the Ericsson equipment and how it was supposed to function

24th May, 2006:  Senator Coonan responds to Hon David Hawker:-

“Mr Smith has indicated that he would like the terms of reference for the assessment to be wider, requiring the Department to make judgements about the fairness of the arbitration process undertaken by Dr Gordon Hughes, under the administration of the Telecommunications Industry Ombudsman, in 1994. While this is understandable, it is not reasonable to expect the Department or indeed any other person at this point in time to make judgements about the circumstances surrounding Mr Smith’s arbitration. The terms of reference for the assessment are therefore more forward looking, aimed at identifying whether any further dispute resolution processes may be available to be pursued by claimants and Telstra in order to resolve their disputes.” ( GS-CAV 445-B)

This statement by Senator Helen Coonan:-

  1. Does not coincide with the commitment given by Senator Coonan’s advisor David Lever, 17th March, 2006 to Alan, prior to Alan signing the agreement that:-If the material you have provided to the Department as part of the independent assessment process indicates that Telstra or its employees have committed criminal offences in connection with your arbitration, we will refer the matter to the relevant authority.” (AS-CAV 321)
  2. Does not coincide with her commitment given to Senator Barnaby Joyce:-

“As a result of my thorough review of the relevant Telstra sale legislation, I proposed a number of amendments which were delivered to Minister Coonan. In addition to my requests, I sought from the Minister closure of any compensatory commitments given by the Minister or Telstra and outstanding legal issues. …”

“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.”
( GS-CAV 432)

The one crucial vote the Government needed to pass the Telstra privatisation – Senator Barnaby Joyce’s vote – was given on the basis of a commitment that Senator Coonan had no intention of honouring – that an independent assessor would be appointed to assess the merits of each COT case’s claims. 

27th March, 2006:  The Hon David Hawker writes to Alan:-

“A note to acknowledge receipt of your letters dated 24, 25, & 26 March pertaining to your request for an independent assessment. Thank you also for forwarding Darren Lewis’ letter of 25 March consenting to being interviewed under oath to support your claim that the phone and fax faults continued long after your arbitration.”

“Please be assured representations have been made today to the Minister for Communications and I have supplied Senator Coonan with copies of all above-mentioned letters.” (GS-CAV 443)

6th September, 2006:  Graham and Alan, at the invitation of Senator Helen Coonan and Senator Barnaby Joyce, attend a meeting in Parliament House, Canberra, to discuss their unresolved Telstra issues.

16th November, 2006:  Senator Joyce writes to Senator Coonan:-

“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.’”
( GS-CAV 426-A)

The link between Alan’s original letter to Mr Pinnock dated 3rd March, 2006 ( GS-CAV 426-B ), and (GS-CAV 426-A) is that Alan’s letter alerted Mr Pinnock to Senator Coonan’s independent assessment process and that Alan was seeking information from the TIO (under the Privacy Policy Act) for arbitration documents to help support his DCITA assessment process.

Had Mr Pinnock not misled and deceived Senator Coonan’s office, a more favourable response to the COT cases’ claims may have been forthcoming.

Alan’s letter of 3rd March, 2006 states:-

“You would be aware by now that the Hon Senator Helen Coonan, Minister for Communications, Information Technology and the Arts, has agreed to appoint an independent assessor to review all the outstanding Telstra arbitration cases, including my claims. …”

“In a subsequent letter dated 12th May 2004(also attached), Philip Carruthers, TIO Business Manger [sic], advised me that my letter of 26th April 2004 to all members of the TIO Board and Council ‘…will be passed on to them by hand at the Council meeting scheduled for 19 May 2004.’”

Alan’s letter is very detailed about what he is requesting, including a copy of the section pertaining to the Council discussion on Alan’s matters scheduled for 19 May, 2004

Alan has yet to receive a letter from Mr Pinnock, the TIO Board or Council regarding this matter.

However, the non-release of TIO documents to Alan, by the TIO board or Council, may well be related to the same Ted Benjamin-TIO Council, conflict-of-interest issues discussed by Senator Schacht on 26th September 1997, discussed shortly.  It appears as though the TIO Board and Council and Telstra representatives – had a closer relationship that was more than just a possible conflict of interest.

Question:

Why didn’t the TIO assist the COT cases in accessing the relevant exchange and technical information they needed to support their claims

The problems with AXE and ARE Ericsson exchanges, and other types of Ericsson equipment, are referred to in different sections of this document.  Throughout the COT arbitrations, the various claimants also reported serious problems in getting Telstra to supply relevant diary notes or fault data, relating to specific telephone exchanges, and they questioned Ericsson’s takeover of Lane Telecommunications, because the COT claimants were in arbitration because of faulty Ericsson equipment.

In Alan Smith’s arbitration, David Read from Lanes Telecommunications prepared the draft Technical Report, NOT DMR Group Canada as claimed.  David Read assessed only 23 of the earliest of 200 faults included in Alan’s claim documents.  The remaining and continuing unassessed 177 faults were mostly caused by the faulty Ericsson AXE exchange.  Did Mr Read only assess 23 of Alan’s claims, and ignore the rest, because Ericsson’s takeover of Lanes was then looming?

The following quotes from a Hansard Record dated 11th February, 1999 show that even the Senate smelled a rat where Ericsson was concerned:-

Senator Boswell to Telstra’s Mr Levy:

Senator BOSWELL“The COT members still require the network and Ericsson documents. They have not received one Ericsson document. You have written to Mr Wynack and said, ‘If you want the Ericsson documents, you go to Ericssons and get them.’ Why can you not provide the Ericsson documents and why have you written a letter to Mr Wynack and said for him to go to and approach Ericssons? …

Senator BOSWELLThey should not be hard to find. When you go out and upgrade an exchange you must have some form of plan, and that would be the Ericsson documents Ericsson are doing the job for you.” ( GS-CAV 427)

If an investigation by the Australian Government (the Senate Working Party) wasn’t able to access relevant technical exchange data, including Ericsson documents from Telstra, then what hope did any of the COT claimants have?

GS-CAV 428-A confirms the NEAT (Network Evaluation and Test) equipment was used at the RCM at Cape Bridgewater between 28th October and 8th November, 1993 particularly on 4th, 5th, 6th, 8th and 9th of November, when Telstra allege Bell Canada International carried out their tests.  The exhibit also proves Ericcson manufactured the NEAT equipment.

GS-CAV 429 is a copy of a letter dated 30th January, 1995 from Alan to Dr Hughes, confirming Alan challenged the results of the ELMI, BCI and NEAT tests carried out between 28th October and 8th November, 1993.  This letter and other CAV information provided by Alan details how, during his arbitration, both AUSTEL and Alan complained about the deficiencies in the SVTs – to no avail.  Then Brian Hodge MBE, a specialist in the field of technical testing processes (and an ex-Telstra engineer), reported on 27th July, 2007 the BCI and SVTs carried out at Cape Bridgewater were fundamentally flawed, adding further weight to the allegations made by Alan and others back in 1995.

Furthermore, during Alan’s arbitration, neither Dr Hughes, FHCA DMR nor Lanes even assessed (let alone valued or commented on) Alan’s claims that the SVTs had not located the ongoing problems and faults in the telephone network.

GS-CAV 429 also shows that, throughout the arbitration process, Telstra made statements concerning the network, which must have been based on technical documents, although Telstra claimed these documents did not exist.

The three main appointments the TIO made, to assist him as administrator of the COT arbitrations, i.e., DMR (Australia), Lane Telecommunications (Australia) and Dr Hughes, were all later fired by the TIO because of a possible conflict of interest.  Even worse, the TIO never looked into why, during the COT arbitrations, these three parties allowed themselves to be put in a position of having a conflict of interest in the first place, since they had all signed agreements to proceed with the COT arbitrations, presumably to the end.

As previously discussed, Senator Schacht referred to Ted Benjamin’s conflicts of interest on 26th September, 1997 regarding the COT arbitrations debacle.  The TIO knew Telstra’s Mr Benjamin was present at TIO Council Meetings, where COT issues were discussed.

CONFLICT OF INTEREST, PART 2

DMR (Australia) – Lane (Australia) – and Dr Hughes

Earlier, we discussed the conflict of interest issues raised by the defection of Grant Campbell (the TIO’s Manager of Disputes) to Ted Benjamin’s Telstra office during the time Mr Campbell was involved in the FTSP investigation into Alan Smith’s fax and 008/1800 problems.  Although it is confirmed Mr Campbell worked in the TIO’s Office from at least January to November 1994, the first TIO Annual Report (1993/94) does not include any record of his employment.

Five separate organisations or individuals, all involved in the COT arbitrations in some way, all had a possible conflict of interest: DMR (Australia), Lane (Australia), Dr Hughes, Ted Benjamin and possibly Grant Campbell.

Questions:

  1. Did Warwick Smith and/or John Pinnock, as administrators to the arbitration have a duty to advise Alan and Graham, before it was exposed in the Senate on 26th September 1997, that Telstra’s Arbitration Liaison Officer, Ted Benjamin was also a TIO Council Member?
  2. Should Warwick Smith have advised the COT cases, before they signed the Arbitration Agreement, that Jim Holmes, Telstra’s Corporate Secretary (who was dealing with Graham and Alan’s settlement and arbitration issues) was also a member of the TIO Board?
  3. Should the Warwick Smith segment, dated 10th November 1993, be considered with the conflict of interest issues shown here?

Regardless of the TIO Board and Council being heavily involved in the COT arbitrations, neither the TIO Board or Council launched any investigation into why the COT cases’ legal right to a fair and transparent process was so abused during their respective arbitrations.

In the Senate in-camera Hansard, dated 9th July, 1998 (the Hansard Alan Smith was threatened with, perhaps, a jail sentence if he publicly reveals the content shows on page 33), Senator Schacht addresses Ted Benjamin:-

“I want to make one final comment before I go. In all my 11 years in the Senate I have never been at a public or private committee hearing where the committee has asked witnesses to swear. That is an indication of how serious we see the resolution of this matter.”

Telstra provided the Senate Committee Hearing with known-false information in their attempt to stop the Senate from investigating the flawed BCI Cape Bridgewater Addendum tests.  Had Telstra told the truth regarding the Cape Bridgewater Addendum BCI tests, Alan’s unresolved Telstra issues could have been resolved on 26th September, 1997.

When Telstra hung Graham out to dry:

  1. by refusing to supply all the relevant CENTROC, TRAXE and Ericsson exchange data;
  2. by refusing to supply any information regarding the dates of any modifications or upgrades; and
  3. by providing false information to the Senate inquiry, they achieved their aim of minimising their liability.

Had Graham received the documents that were withheld from him, and had his arbitration been conducted correctly, Graham’s true losses may well have amounted to even more than his maximum estimate of $12 million.

In 2006, Graham was too sick to become involved in the fourth, allegedly independent, COT assessment process; it would now seem that he saved his money

COMMENTARY

The following points are most important:-

  • Before Graham and Alan signed for arbitration, they were told Dr Hughes drafted the Fast Track Arbitration Procedure Agreement in consultation with Frank Shelton of Minter Ellison.
  • Graham and Alan were also told Frank Shelton, the President of the Institute of Arbitrators Australia, drafted the agreement totally independently of Telstra and any alterations would be agreed to by both Telstra and the COT claimants.
  • The final agreement provided to Graham and Alan via William Hunt on 20th April, 1994 the day before they were to sign it, only had one Confidentiality Undertaking form attached, when it was expected there would be one for the claimants and one for Telstra. Peter Bartlett explained this by saying that Telstra and the Resource Unit would provide their Confidentiality Undertaking forms separately.
  • Graham and Alan signed their Confidentiality Undertaking (witnessed by Barry O’Sullivan) but they were never provided with a copy of the same form signed by Telstra, FHCA or Paul Howell of DMR (Canada). Although, in May 1994, they received a copy of one signed by Mr Blah of DMR (Australia).
  • If Peter Bartlett was truly independent of Telstra and FHCA, why didn’t Alan and Graham receive Confidentiality Agreements from Telstra and FHCA in the same way they received the agreement from DMR (Australia)?
  • Why did Warwick Smith and Dr Hughes refuse to give Graham and Alan a copy of Telstra’s proposed Rules of Arbitration and why did John Pinnock also refuse?
  • If Frank Shelton really drafted the FTAP Agreement from the beginning, why does it mirror most of the major clauses in the Telstra proposed agreement John Pinnock provided to Pauline Moore? The duplication of Telstra’s proposed clauses indicates Minter Ellison did NOT draft the agreement at all.
  • Clauses 16, 16.1, 16.2, 16.3 and 17 of the Confidentiality Undertaking include strong and clear directions, including the claimants would not be allowed to discuss the conduct of the arbitration.
  • Why would Frank Shelton include the clauses referred to in point (h) when the High Court of Australia’s judgement, in 1994/95, regarding ESSO Australia Resources (appellants) Plowman and others (respondent) states at {183 CLR 10}:
  1. “The courts have consistently viewed government secrets differently from personal and commercial secrets (67). As I stated in “The Commonwealth v John Fairfax & Sons Ltd (68), the judiciary must view the disclosure of government information through different spectacles.” This involves a reversal of the onus of proof: the government must prove that the public interest demands non-disclosure (69).”

“This approach was not adopted by the majority of the House of Lords in British Steel Corporation v Granada Television Ltd. (70)” and

If a part to an arbitration agreement be under any obligation of confidentiality, the obligation must be contractual in original. A term imposing an obligation of confidentiality could be expressed in an arbitration agreement but such a term would be unusual. Nor is such an obligation imposed by the Commercial Arbitration Act 1984 (Vict).” (GS 368 – b)

This information is taken from a transcript of the full High Court 1994-1995, on Appeal from the Supreme Court of Victoria, re ESSO v PLOWMAN, Arbitration – Agreement – Hearing in private –Implied terms – Confidentiality of documents and information disclosed – Documents produced at direction of Arbitrator. (See also Graham Schorer CAV Relevant Information file, exhibit 19).

IMPORTANT

Although it was the duty of the Special Counsel to ensure FHCA and Telstra both signed the Confidentiality Undertaking, if they indeed did sign it, why did the COTs never see a copy?  This supports allegations the arbitration was, from the very beginning, biased towards Telstra.  The secret alterations, made to agreement clauses 10.2.2, 24, 25 and 26, before the claimants signed, but without their knowledge, further proves the whole arbitration was set up to benefit Telstra and no one else.

The ESSO v PLOWMAN confidentiality issues also show Government Agencies expect to be treated differently to the general public and ordinary commercial businesses.  This further suggests the FTAP agreement was drafted by Telstra and not Minter Ellison (see also Telstra’s Proposed Rules of Arbitration).

The comment at point (i)b, above, regarding the High Court document in relation to ESSO v PLOWMAN also suggests Frank Shelton, as the then President of the Institute of Arbitrators Australia, would have known the confidentiality rules applied to the FTAP were not standard in an Arbitration Agreement.  Thus it could be presumed he would not have included them unless directed to, either by Dr Hughes or Telstra.

This confidentiality issue is yet another example even before the agreement was signed, of the way the arbitration was designed to protect Telstra, to the detriment of the claimants.

19th January, 2008:   GS-CAV 431 is a letter from Alan Smith to Ms Jodi Ross (Principal Lawyer for ACMA), alerting Ms Ross to FOI documents received by Alan.  These documents prove that, although the Minister for Communications agreed to appoint an independent assessor to assess the merits of each of the unresolved COT claims, there was never any intention to honour the commitment made to Senator Barnaby Joyce in return for his vote to privatise Telstra.

A number of internal Government emails are attached to Alan’s letter to Ms Ross.  The attachments show the rights of the claimants were not considered at all and, once again, the COT claimants’ evidence, including proof of continuing phone problems affecting their businesses, even after their arbitrations, would be buried.

The Hon David Hawker, the Speaker in the House of Representatives at the time of the alleged independent assessment process, submitted a number of claim documents to the Minister, on behalf of Alan Smith.  How does the Hon David Hawker feel now, knowing the claim material he provided to the Minister on Alan’s behalf wasn’t assessed on its merit?

28th January, 2008:  Alan writes to Ms Clair O’Reilly, ACMA.  Ms Jodi Ross advised Alan that Ms O’Reilly will be his FOI contact until 31st March, 2008.  Because Alan is asking ACMA to waive all FOI charges for his latest FOI application in his 19th January, 2008 letter to Ms Ross, he sends a replica of this letter, but dated 28th January 2008 to Ms O’Reilly.  Alan attaches a cheque for $75.00 as a deposit to get the FOI requests underway although he still hopes ACMA will eventually agree to waive the FOI cha

Commentary:

In the letters Alan states:-

“My involvement in this DCITA assessment process in 2006 cost me quite a few thousand dollars and it turned out to be a sham anyway, as can be seen by the attached copy of an email sent by Senator Coonan’s advisor (David Lever) to the TIO (John Pinnock) on 21st December 2005, noting that: ‘The assessment will focus on process rather than the merits of claims, including whether all available dispute resolution mechanisms have been used.’ …”

“The Federal Liberal Government clearly misled Senator Joyce in a deliberate move to secure his vote so they could pass the legislation required for the privatisation of Telstra but, once this aim had been achieved, Senator Coonan executed a ‘back-flip’ on the Government’s commitment to Senator Joyce. Mr Lever’s email is quite clear – neither he nor the Minister ever had any intention of honouring the commitment giving to Senator Joyce.”

“The ACMA, the TIO and DCITA all know that Telstra relied on fundamentally flawed and manufactured reports to support their defence of my arbitration claim, but this evidence was not referred to the relevant authority.”

“The negation of these Government guarantees is an enormous indictment against Australian democracy.”

These letters are included as Graham Schorer and Alan are concerned about the legal advice Minter Ellison provided to ACMA, the TIO and Government advisors regarding the COT arbitration process – particularly in relation to their administrative role when the Fast Track Arbitration Procedure agreement was initially being drawn up (before Graham and Alan signed it).  There are a number of questions regarding whether Minter Ellison had a vested interest in hiding some of the legitimate complaints lodged by the COT claimants.

The following dated examples shown in the Agenda, dated 9th January, 2008 (see Graham Schorer Relevant Information file, exhibit 17), discuss a number of relevant FTAP issues:-

  1. 23rd February, 1994: Telstra’s Steve Black wrote to Dr Hughes, re Clause 24:-

“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. (GS 169)

  1. 31st March, 1994: Dr Hughes faxed Steve Black the latest draft of the FTAP Agreement (see page 1 of Telstra’s FOI Schedule dated 21st June 1996, attached as Agenda – Appendix One).  It seems Dr Hughes did not forward the document to Graham Schorer or Graham’s solicitor, William Hunt, as he should have, as no such document was found among Graham’s documents.  Agenda – Appendix Two is page 2 of the Telstra FOI Schedule. It confirms the next document Telstra received from Dr Hughes during the FTAP arrived on 1st September, 1994.
  2. 19th April, 1994: Caroline Friend, Dr Hughes’ secretary, faxed a copy of the Arbitration Agreement to William Hunt and Mr Goldberg. On the fax cover sheets, she notes“Further to my telephone discussion with Mr Graham Schorer of todays [sic] date, at his request, I attach for your attention, a copy of the ‘Fast Track’Arbitration Procedure of 31st March 1994.” (GS 186-b)
  3. 20th April, 1994: Graham introduced Alan Smith to William Hunt and they discussed whether Graham and Alan should sign the FTAP.  Mr Hunt provided the copy of the agreement he received from Ms Friend the previous day.  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 it was probably the best they could hope for under the present circumstances.  Alan recalls Mr Hunt also stated that, if they didn’t sign the agreement then, the process would be delayed even more and “who knows where you might end up”.
  4. 21st April, 1994: Graham and Alan sign the FTAP agreement unaware of the removal and changes to the aforementioned clauses.  It is now established that after these faxes were sent, sometime between 3.30pm on 20thApril, 1994 and 10.00 am on 21st April, 1994 someone removed clauses 25 and 26 from the document, and altered clause 24, before the document was presented to Graham Schorer and Alan Smith, on 21st April 1994, without notifying Mr Hunt, Mr Goldberg, Graham or Alan of those alterations.

Alan and Graham believe strongly that, had Mr Hunt known clauses 25 and 26 were to be removed and clause 24 altered, 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, he would never have advised Graham and Alan to sign the agreement.

  1. 22nd June, 1994: A fax from Pia Di Mattina, to AUSTEL’s Norm O’Doherty, was accompanied by a letter from Steve Black to Peter Bartlett, discussing a further attached draft Arbitration Agreement entitled Special Rules for Arbitration of 12 Claims Referred to Telecom by Austel.  Clause 11.2, in this version states,

“The liability of any independent expert resource unit by the Arbitrator, for any act or omission on their part in connection with the Arbitration, shall be limited to $250,000.00.” ( GS-CAV 438)

  1. 24th June, 1994: Steve Black faxed a letter to AUSTEL’s acting Chair, Neil Tuckwell (copied to Warwick Smith, TIO), re Special Arbitration Procedure for Twelve Cases

“I understand that the Telecommunication Industry Ombudsman spoke to you yesterday concerning the above procedure, and that the applicable rules of arbitration are now agreed. Enclosed is a copy of those rules which incorporates the final change requested by the Telecommunication Industry Ombudsman.”

“I would appreciate receiving confirmation of your agreement to those rules as soon as practicable to facilitate the introduction of the procedure.”

In this document Clause 11.2 states:-

“The liability of any independent expert resource unit used by the Arbitrator, for any act or omission on their part in connection with the Arbitration, shall be limited to $250,000.00.” ( GS-CAV 439)

IMPORTANT QUESTIONS – TWO SCENARIOS

  1. Steve Black’s letter to Peter Bartlett (see  GS-CAV 438) was dated two months after Graham and Alan signed the FTAP agreement. By 22nd June, 1994 Steve Black and Peter Bartlett reintroduced the $250,000 liability cap for the remaining 12 COT claimants.
  2. There are similarities to versions of the FTAP agreement provided to all the COT claimants (the first four and the following 12), for assessment by their respective legal experts. However, for Graham and Alan, within the 36 hours between receiving their legal opinion and signing, the $250,000 liability cap was secretly removed.  Does this mean Graham and Alan have a moral obligation to inform the TIO of this discovery and ask the TIO
  3. If the same $250.000.00 cap was also removed from the Arbitration Agreements used for remaining 12 COT arbitrations after the claimants agreed to arbitration, but before they actually signed the agreement, or
  4. Was this secret alteration only made to the versions used for the first four COT arbitrations or were some of the following 12 Arbitrations Agreements selectively altered?
  5. If the Special Rules For Arbitration, used to arbitrate the group of 12 claimants and clause 11.2, did remain intact and therefore any one of the 12 claimants could have used the $250,000 cap if they believed they had good grounds to do so, why were the first four COT claimants singled out and discriminated against so that they could not use the $250,000 cap in relation to the problems that are now proven in their arbitrations?
  6. Is ACMA aware that someone with access to Minter Ellison’s office altered the Arbitration Agreement less than 36 hours before Graham and Alan signed the agreement?

Graham and Alan believe that, in 1994, AUSTEL would have immediately called for an Official Government investigation into this unlawful act if they had known these changes were made.

Warwick Smith, Dr Hughes, Peter Bartlett and John Rundell (FHCA) were all involved to some degree, because they did not provide Alan’s Fast Track Settlement Process claim material, dated 27th January 1994, to the Technical Resource Team, DMR and Lane, for assessment.  We do know however that Alan’s original Fast Track Settlement Process claim never reappeared and the official Arbitration Agreement was altered.

27th January, 1994:  Alan wrote to Warwick Smith, Dr Hughes, Peter Bartlett and John Rundell FHCA.  Attached to Alan’s letter was the 25-page log of complaints he submitted to Telstra between 1989 and 1994 see (AS-CAV 322-A).  The first 18 pages of this list were previously provided to the then-Shadow Minister for Communications and the Arts, Senator Richard Alston, in August 1993. The number in the top right corner of the document matches the system applied to all the claim documents Alan submitted to the arbitrator, covered by Statutory Declarations.

Alan’s arbitration Letter of Claim was submitted to Dr Hughes on 15th June, 1994:-

“In September of 1989 I realized that I ought to commence to keep a comprehensive record of the faults and fault evidence.  As a result of that I commenced to make contemporaneous entries in my diaries and those diaries are currently in the possession of Loss Adjusters, Freemans Plummer and Pullinger, in Queensland.

“On 27th January, 1994 I corresponded to Warwick Smith, Telecommunication Industry Ombudsman, and I attached to that correspondence 37 separate pages of faults.  I would direct your attention to those 37 pages of faults as I have attached them to this correspondence also.” (AS-CAV 322-B, page 16)

Comment:

Alan’s statement that he had already provided a Chronology of his complaints to Warwick Smith, (the then administrator to the process), was at no time challenged prior to him signing the Arbitration Agreement.  This shows that the information was not only received by the TIO, but the other three parties mentioned above.

Please Note:  When Alan originally supplied this fault log there were only 25 pages, but his advisor referred to 37 pages in his Letter of Claim.  The final count included handwritten records of faults he originally recorded in an exercise book and further handwritten notes on two yearly wall-planners.  For the Fast Track Settlement Process, he transcribed all handwritten information and sorted it into date order in diaries, before he gave the diaries to his advisor.

Further, between January and October 1994, as part of his arbitration process, he provided Dr Hughes with two copies of another comprehensive log of telecommunications problems, see exhibit (AS 101)

COMMENTARY 1:

1.      AS-CAV 322-C is from the DMR and Lane Technical Report, noting:-

“We reviewed but did not use Mr Smith’s diaries (Telecom’s examination of Mr Smith’s diaries arrived in the week of 17 April 1995).  Like Telecom, we separated the problems caused by Mr Smith’s CPE from those in Telecom’s service and concentrated only on the latter. A comprehensive log of Mr Smith’s complaints does not appear to exist.”

2.      AS-CAV 332-D is a letter dated 18th September, 1995 from Dr Hughes to John Pinnock, stating:-

“In relation to his diaries, Mr Smith insinuates that when I handed these to Telecom, I overlooked his stipulation that they were to remain in my office. I refer you to my ruling of 13 December 1994 that the “testing” of the diaries could not be conducted on my premises. Telecom’s letter of 12 December 1994 sets out why this is the case. I telephoned Mr Smith on 13 December 1994 to explain why the diaries had to be tested in properly equipped facilities.”

COMMENTARY 2:

Points 1 and 2 confirm:

a)      Telstra had Alan Smith’s diaries from 13th January, 1994 to 17th April, 1995.

b)       Regardless of Alan submitting four copies of his 25-page comprehensive faults log to the aforementioned parties on 27th January 1994, and a further 37-page comprehensive faults log to the arbitrator, DMR and Lane were still not aware of the existence of these documents.

Exhibit (AS-CAV 322-E), is from Dr Hughes’ copy of the DMR and Lane report, including the list of the documents they sourced in order to arrive at their Technical Findings regarding Alan Smith’s claim.

Exhibit (AS-CAV 322-F), is from Alan Smith’s copy of the Report, again listing the documents they allege they sourced for his claim.

It is established that both reports include exactly the same Technical Findings, word for word. The DMR and Lane report provided to Alan for written comment however, includes 13 more bound sets of documents listed being assessed than what is shown as assessed in the Arbitrator’s copy.

The original numbering of Alan’s claim documents was done in lots of 200 (1 – 200, 200 – 400 etc.) see exhibit (AS-CAV 322-F) however, in the arbitrator’s list of documents, 1 – 200, 200 – 400 are not listed.

These missing documents expose numerous billing faults.  In John Rundell’s letter, dated 15th November, 1995 he admits to Mr Pinnock that none of Alan Smith’s billing issues were ever addressed.  It is therefore clear that neither Dr Hughes nor FHCA provided DMR and Lane with copies of this billing fault information.

A letter, dated 16th September 1994, from Alan’s arbitration claim advisors, Plummer and Pullinger, shows Telstra’s comment, at point 10, as stating:-

“The Claimant has stated that persons employed by the Claimant, local businesses, prospective clients, returning clients, friends and associates have all witnessed and experienced the problems that the claimant has allegedly had with his telephone service.”

In response to this, Plummer and Pullinger direct Telstra and the arbitrator to the supporting information Telstra required, i.e., 91 letters and other documents numbered from 2004 to 2095, all included in Alan’s original claim, as seen in AS-CAV 322-F.

Telstra is also shown as claiming:-

“The Claimant has stated that a number of persons have gone out of their way to ensure that they could make a booking with Cape Bridgewater Holiday Camp (CBHC) even though they had difficulty in making telephone contact. This allegation is said to be supported by ‘the correspondence attached.’”

In response, Plummer and Pullinger list the names and addresses of 19 parties who documented their own problems when trying to contact Alan’s business by phone, using the same numbering system that accounted for 2,158 individual documents submitted in just one section alone, that does not appear in the sourced document list shown in the DMR and Lane report as being viewed.

Note: When comparing the list of claim documents shown in Dr Hughes’ copy of the DMR and Lane report with the alleged documents assessed on the list shown in Alan’s copy, it is confirmed that:

  • Smith – Cape Bridgewater Par 1 and 2 (SM20 and 21) are missing from Dr Hughes’ copy
  • Smith – Further FOI material (SM17) is missingSmith – Further Examples of Additional Evidence Two Volumes (SM16) is missing
  • Smith – Reply 18 January 1995 (SM53) is missing
  • Smith –Assessment Submission (SM2) is missing

When we compare the claim documents, it is clear 13 sets of claim documents were mischievously added to the DMR and Lane list to make it appear as those documents were assessed when they were not.

One of the most important documents of the whole arbitration process was Alan’s reply to Telstra’s defence. However, the document list shown in Dr Hughes’ copy of the DMR and Lane report does not include Alan’s reply to Telstra’s defence i.e., Smith – Reply 18 January 1995 (SM53).  Garry Ellicott, Alan’s Claim Advisor, prepared this reply to Telstra’s defence and Alan submitted it to Dr Hughes on 20th January, 1995 (see Alan Smith CAV Relevant Information File).  The arbitrator and/or his Resource Unit, FHCA, hid one of the most important arbitration technical documents from the technical assessors!

  • DMR and Lane state in their report:

“A comprehensive log of Mr Smith’s complaints does not appear to exist.”

  • If their statement is true and DMR and Lane were not provided with Alan’s comprehensive log of complaints, who benefited within the TIO-appointed administrative unit from hiding this vital claim material from being assessed?
  • Why was this comprehensive log of complaints, which consisted of 13 separate sets of bound documents totalling in excess of 6,000 documents, withheld from DMR and Lane?
  • On 27 th January, 1994 see AS-CAV 322-A, Dr Hughes (arbitrator) and John Rundell (Arbitration Resource Unit) both received 23 pages of a comprehensive list of Alan’s fault complaints from 1989 to 1994, plus 80 or so individual letters from varying people who also documented those complaints.  Why didn’t Dr Hughes and Mr Rundell notice the DMR and Lane report stated they were not provided with a comprehensive list of Alan’s complaints for their own assessment purposes?
  • In the Alan Smith CAV Relevant Information file, exhibit 4(a) is a Technical Report prepared by David Read of Lane Telecommunications, dated 6th April, 1995 which has been stamped on each page ‘Draft For Discussion Purposes Only’. The technical findings in this report (dated 6th April, 1995) start at 1.1 and finishes at 2.23, exactly the same starting and finishing point shown in both Dr Hughes’ copy and Alan’s copy (both reports dated 30th April, 1995) showing the same 23 assessments in all three reports.
  • On the first page of the Mr Read’s Technical Report, under the heading, Source of Information, it states: “The information provided in this report has been derived and interpreted from the following documents”.  The list he refers to sourcing to achieve his findings is exactly the same claim and defence documents shown in Dr Hughes’ DMR and Lanes report.  Yet in the DMR and Lane Report, provided to Alan, someone has magically added 13 extra bound sets of his claim documents to the same list.
  • How can three reports, with exactly the same 23 assessments be allegedly derived from the same sourced information (exactly the same word for word) when 70 per cent of the claimant’s claim material were not shown as being sourced and/or assessed in the other two reports?
  • It is interesting to note that, in all three assessment in those reports, none of the faults that continued past the BCI study of November 1993, and the SVT testing of 29th September, 1994 were ever investigated and/or addressed by either David Read or Paul Howell, DMR (Canada).
  • On 15th October, 2007 Graham provided 20 boxes of assorted legal documents he obtained from Julian Hunt, the son of William Hunt (now deceased).  Alan found fresh evidence amongst these documents of William Hunt’s file notes, including the original FTAP agreement Graham and Alan first discussed with William on 20th April, 1994.  Due to the pressures of running a business while being involved in an AFP enquiry, a Commonwealth Ombudsman enquiry, a Senate enquiry as well as his own arbitration and the illness Graham suffered throughout his arbitration period, some of this information in William’s files was forgotten until approx 2007.
  • One of the NOT-seen-before sets of documents was information pertaining to Graham’s Telstra issues, forwarded to William Hunt’s office.  One file in particular confirms Telstra provided the Senate with known-manufactured documentation hiding that Telstra was aware (before submitting the BCI information into arbitration) the BCI Cape Bridgewater Addendum tests were fundamentally flawed. A report confirming these facts has now been prepared.

When Alan went into this alleged-independent assessment process, Graham was still suffering from depression and was worn out mentally and physically.  While exhibits GGS-CAV 420 to GS-CAV 426, GS-CAV 431, GS-CAV 434 and  GS-CAV 436-A, confirm Senator Coonan’s independent assessment process was nothing but a sham, Alan believed, at the time, the Coalition Government would finally review his long outstanding Telstra issues.

2nd February, 2008:  Alan writes to the Hon David Hawker, Speaker in the House of Representatives:-

“This attached document is a copy of an email from Ronda Fienberg, my Melbourne-based secretary and it is startling information, directly related to my allegations regarding Senator Coonan’s allegedly ‘independent’ assessment process.

As you can see, yesterday (1st February 2008) Ronda received confirmation from Senator Coonan’s office that they had deleted (without opening or reading) two emails Ronda had sent directly to Senator Coonan on my behalf in 2006. Both these emails related to Senator Coonan’s so-called ‘independent’ assessment – the process in which these documents should have been assessed. One of the documents is dated 23 April 2006 and the other 25 July 2006, but they were deleted yesterday, 1st February 2008 at 15:56:23 and 16:56:35 respectively.

Perhaps the correspondence I have recently sent to ACMA, Senator Joyce and your office, in relation to DCITA’s misleading and deceptive conduct, has been forwarded to the Minister’s office for investigation and this may have prompted Senator Coonan’s advisors to shred documents and delete emails regarding my unresolved Telstra matters. Whatever the reason for deleting unread claim related emails, it seems that Senator Coonan’s people were not aware that deleting the emails without opening them could automatically send a message back to the sender (in this case, my Melbourne-based secretary) to notify the sender that the message had been deleted without being opened (see attached document).” ( GS-CAV 441-A)

Exhibit GS-CAV 441-B is a copy of the email information showing the deletions on 1st February, 2008.  (Alan’s letter to the Hon David Hawker contains mistakes concerning the time the emails were deleted.  GS 441-b shows the correct times were 16:56:23 and 16:56:36.)

Please note GS-CAV 442 to 445 support the issues raised in Alan’s letter to the Hon David Hawker MP regarding Mr Hawker’s representations on behalf of Alan, during Senator Helen Coonan’s (alleged) independent assessment process.

4th February, 2008:  Ms Lizzie Hallam, electorate officer to the Hon David Hawker MP emails Alan:-

“I acknowledge receipt of your latest email of Mr Hawker whom is presently out of the office.”

“Thank you for raising these concerns.”

“I shall bring same to Mr Hawker’s attention at the earliest convenience.” ( GS-CAV 446)

SUMMARY

This report shows why, before Graham and Alan signed the Arbitration Agreement, Graham doubted the integrity of the process.  Alan, on the other hand, having been duped by a previous Telstra-manipulated settlement process, believed a legally administered arbitration process would have to be conducted within the Australian justice system, and would therefore be carried out transparently. Alan was wrong; Graham was right!

Throughout Graham’s arbitration he continually asked to see Telstra’s proposed Rules of Arbitration, but the arbitrator (Dr Hughes) and both TIO’s (Warwick Smith, then John Pinnock) refused his requests.  Mr Pinnock however did provide a copy of these rules, under confidentiality, to the Senate secretary, Pauline Moore (see GS 318), while still refusing to give Graham a copy.  It has now been proven beyond all doubt, the arbitration rules were secretly altered, without Graham and Alan’s knowledge, and the COT claimants’ dealings with the TIO and the TIO Board and Council have continued to be muddied – rather than being the transparent process the claimants were led to expect of the arbitration process.

Why did the TIO, the arbitrator and the TIO’s Special Counsel allow the defendants to provide the rules they wanted to be assessed under, then hide that from the claimants throughout their arbitrations?  Why was Mr Pinnock still hiding the Telstra rules from Graham even during the Senate investigations?

During the DCITA allegedly ‘independent’ assessment process, Alan asked Mr Pinnock (see  GS-CAV 426-B) to provide arbitration procedural information to help with Alan’s submission.  Alan never received a response to this written request.  A DCITA file note (see next paragraph) was received from another COT claimant and could shed some light on this issue.  The COT claimant who provided this document was also on the list Senator Joyce provided to Senator Coonan in relation to the proposed independent commercial assessment process.  The Terms of Reference for the DCITA independent assessment process required claims to be submitted before the end of February 2006.  Before Alan signed the agreement, he asked David Lever (DCITA) for an extension of time as he needed to access documents from the TIO, under the TIO Privacy Policy Act, to use in support of his claim.  Mr Lever extended the deadline for Alan to 17th March, 2006, but Alan was still concerned that this was not enough time.  Alan suggested that he might still have trouble submitting all the supporting material he needed by the new deadline, which would mean that DCITA would not be able to evaluate all his material.  Mr Lever advised Alan that he should submit the main section of his claim before the due date and then, if other material was submitted after the due date, the assessors could decide if that new material was relevant.  Alan accepted this compromise and duly signed the agreement.

The DCITA FILE NOTE in question states:-

“Telecommunications Ombudsman, Mr Pinnock contacted David Lever on 22 March 2006 regarding [name blanked]. Mr Pinnock requested confirmation that [name blanked] was involved in the Independent Assessment process and was advised by Mr Lever that he was. Mr Pinnock advised David Lever that [name blanked] had contacted him requesting documents that he wished to forward to the Department for consideration in the Independent Assessment process.”

“Mr Lever advised Mr Pinnock that the Department had already requested that [name blanked out] forward any documents for the Independent Assessment Process to the Department by 17 March 2006.”

Alan believes that Mr Lever’s reference to a due date of 17th March, 2006 and the information in  GS-CAV 447 confirms Alan contacted Mr Pinnock in relation to the independent assessment process, and proves it is Alan’s name that is blanked out in this document.  The main issue here is Alan wrote to Mr Pinnock on 3rd March but Mr Pinnock waited almost three weeks, until 22nd March, before he queried the situation with DCITA.  It may not be possible to prove that this delay was deliberate and, as stated above, Alan never received a reply from Mr Pinnock anyway.

IMPORTANT COMMENTARY

The dates of discussions, before Graham Schorer and Alan Smith signed the Fast Track Arbitration Process agreement, are important.  (GS 186) and Graham Schorer Relevant Information file, exhibit 17, show Caroline Friend (Dr Hughes’ secretary) faxed a copy of the Fast Track Arbitration Procedure agreement to Mr Goldberg on 19th April, 1994 at 12:29 pm, and to William Hunt on the same day at 1:59 pm. The formal agreement was discussed at a meeting between Graham, Alan and William on 20th April, 1994.

This meeting was held late in the afternoon and Alan vividly remembers thinking Graham seemed quite angry with Mr Hunt.  Alan’s impression was later confirmed to be correct.  At this meeting, William raised the idea of the $250,000 limit for liability for the Resource Unit, in clauses 25 and 26.  Graham became extremely angry, claiming there should be NO limit in the agreement for any of them, noting his own claim was worth millions and he had lost years off his life.  He couldn’t see how anyone had any right to put a cap on how much he should be able to sue the Resource Unit for, in the event of negligence or misconduct.

William Hunt’s interim account for 24th June, 1994 notes:-

“In April, lengthy discussions with Mr Schorer re steps, obtaining appointment with Mr A. H. Goldberg Q.C., preparing Brief for advice, appointing and attending conference with Mr Goldberg and then attending on short notice at the office of Minter Ellison in general conference before (Dr Gordon Hughes) re working out items of the Fast Track procedure.”

William Hunt’s meeting with Dr Hughes before Alan and Graham signed the Fast Track Arbitration Procedure (see Graham Schorer, Dr Hughes Exhibit 3-a, Arbitration LGE 3 target), could only have been held on 20th April.

William Hunt’s records for 3rd May, 1994 note:-

“On a date to be determined (last week or the week before) spending from 9:30 to 3:30 at the pre-conference with Dr Gordon Hughes and Bartlett of Minter Ellison etc.” (See Graham Schorer Dr Hughes Exhibit 3-b, Arbitration LGE 3 target)

This is further confirmation of the meeting on 20th April.

GS-CAV 186 and Graham Schorer Relevant Information file, exhibit 17 also establishes that, sometime between the afternoon of 19th April, 1994 (when the agreement was faxed to Mr Hunt and Mr Goldberg) and the morning of 21st April, 1994 (when Graham and Alan signed the agreement) someone with access to Minter Ellison’s office removed clauses 24 and 25 and altered clause 26 of the agreement.

However, the William Hunt file note for 3rd May, 1994 and his interim account for 24th June, 1994 confirm he had a morning and afternoon FTAP meeting with Dr Hughes and Peter Bartlett, after he received the formal 19th April 1994 FTAP (agreement), so the alterations to the FTAP (Agreement) had to have taken place after William Hunt’s meeting of 20th April, 1994.

In summary:-

  1. 19th April, 1994: after 12:29 pm, the agreement document was faxed to Mr Hunt and Mr Goldberg.
  2. 20th April, 1994: between 9.30 and 3.30, Mr Hunt met with Dr Hughes and Peter Bartlett at (the “short-notice” meeting referred to in Mr Hunt’s notes of 24th June, 1994) to discuss the agreement faxed to Mr Hunt the previous day. (See Graham Schorer Dr Hughes Arbitration LGE 3-b Exhibit 3)
  3. 21st April, 1994: between 10 am and close of business, Graham and Alan attended Minter Ellison’s offices to sign the agreement.

So, the changes made to the agreement had to have been made by someone with access to Minter Ellison’s offices after the Mr Hunt left Minter Ellison’s offices at 3.30pm on 20th, but before Graham and Alan arrived at Minter Ellison to sign the agreement on 21st April, at 10am.

IMPORTANT 1

Attached to the Graham Schorer, Dr Hughes Arbitration LGE 3 target, at exhibit 4, 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.”

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’.”

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

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

When Dr Hughes wrote to Graham on 31st March, 1994 (see exhibit 5, above), 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 all three clauses are still intact – although the wording, “each of the Claimant’s claims” had been removed, without advising the COT cases.

We again summarise:

  1. Peter Bartlett writes to Graham on 22nd March, 1994 suggesting 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 has been removed.
  3. Peter Bartlett writes to Ann Garms, attaching the same FTAP agreement Dr Hughes 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 William Hunt and Alan Goldberg the same FTAP agreement 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.

We previously established William Hunt used the agreement faxed to him by Caroline Friend in discussion with Minter Ellison on 20th April, 1994 (the day after he received it) and there is no record of Ann Garms, Graham or Alan agreeing to the removal of, or alterations to, clauses 24, 25, 26 and 10.2.2.  The changes made secretly, without the claimants’ knowledge or consent, appear to have been done with the full knowledge of those who benefitted from these deletions, i.e. Ferrier Hodgson Corporate Advisory and the Special Council, Minter Ellison.

IMPORTANT 2

It appears the clauses referred to were either removed or changed with the full knowledge of the defendants.  Telstra did not sign the agreement at the same time as Graham, Alan and Ann Garms signed it and Peter Bartlett informed them the agreement was to be couriered to Telstra for signing by Steve Black because he was unavailable at the time.  Peter Bartlett later sent Graham a copy in the mail.  Graham received it on 29th April, 1994, although the letter was dated 22nd April ,1994 and the agreement confirms Steve Black signed it on 21st April, 1994.

IMPORTANT 3

Alan Smith received four official FOI schedules around 21st June, 1996.  These are attached to the Graham Schorer – Dr Hughes Arbitration LGE 3 target, at exhibits 1 and 2; they list the official correspondence exchanged between Dr Hughes and Telstra, both in the lead-up to Alan signing the Arbitration Agreement and during Alan’s arbitration.  Exhibit 1 is the list of official correspondence from Telstra to Dr Hughes between 17th February and 23rd September, 1994.

Example (a), Telstra FOI folio L68976-L68977 of 1st March, 1994 notes:-

“Fax from Steve Black, Group General Manager, Telstra, to Gordon Hughes, Hunt & Hunt, confirming changes to the proposed Fast Track arbitration procedure.”

Telstra FOI folio L68978 (the next document) was sent by Telstra’s Steve Black to Dr Hughes on 8th September, 1994 confirming Telstra did not write to Dr Hughes in relation to changes to the FTAP agreement after 1st March, 1994.

Exhibit 2 is the list of correspondence from Dr Hughes to Telstra between 27th January and 21st September, 1994.

Example (b), Telstra FOI folio L69119 – L69138 of 31st May, 1994 notes:-

“Fax from Gordon Hughes, Hunt & Hunt, to Steve Black, Group General Manger, customer Affairs, Telstra, enclosing draft of Fast Track Arbitration Procedure.”

Telstra FOI folio L69139 – L69414 (the next document) was sent by Dr Hughes to Telstra on 1st September, 1994 confirming Dr Hughes did not write to Telstra in relation to changes to the FTAP agreement after 31st March, 1994.

WE again raise Questions:

After 31st March 1994, no official arbitration correspondence was exchanged between Telstra and Dr Hughes, in relation to the FTAP agreement.  The copies received by Ann Garms on 13th April, 1994 and William Hunt and Alan Goldberg, on 19th April, 1994 do not refer to the agreement as a draft.  Where are the signatures of Ann, Graham, Alan and Telstra, agreeing to the late alterations to the agreement signed on 21st April, 1994?

1994-2008 unread claim documents

There are many similarities between the 21st April, 1994 TIO-administered arbitration process with the 13th March, 2005 independent-assessment process administered by Senator Helen Coonan.

AGREEMENTS ALTERED AND DOCUMENTS NOT ASSESSED:

  1. Arbitration: We have shown the TIO-prepared agreement was altered at the last minute without alerting the claimants.
  2. Arbitration: The TIO and Telstra arranged for the TIO-appointed Resource Unit to vet arbitration documents and decide which documents should be given to the arbitrator and the claimants and which should be withheld.
  3. Arbitration: In the Allen Bowles fax-interception file, dated December, 2006 at exhibit 1, we provide evidence of 43 separate claim documents, faxed to the TIO-administered arbitration process in 1994, that were not assessed during the process.
  4. DCITA Assessment: The Minister’s office altered the independent-assessment agreement after Senator Barnaby Joyce gave his vote for the privitisation of Telstra.
  5. DCITA Assessment: It is confirmed, as late as 1st February, 2008 that, in the Government-facilitated independent assessment process, at least two sets of claim-related documents were not assessed.
  6. DCITA Assessment: It is likewise confirmed, as late as January 2008, the Minister’s appointed assessors admitted, in their internal emails, they intended to only assess the DCITA claimants’ claims on their merits.

4th March, 2008:  New evidence arrives suggesting the following information should be further investigated, see point 23 in the CAV document entitled People to Contact and page 206, Golden Messenger & Cape Bridgewater Holiday Camp Chronology, respectively.

At point 23, in the People to Contact document, we question the role of Grant Campbell when he was Manager of the TIO Complaints Department during the early period of 1994, when Graham and Alan were in arbitration noting:-

  1. “It is interesting to note that the 1993/94 TIO Annual Report does not list Mr Campbell as having worked for the TIO office, even though Mr Campbell held a Senior Managerial position with Telstra.”
  2. TIO documents dated 9th February, 1994 (see E1(b)) confirm Grant Campbell signing letters on behalf of Warwick Smith, particularly in relation to the fax billing and lock-up complaints included in Alan’s Smith’s arbitration claims.
  3. Telstra FOI documents H36271, H36281 and H000027 confirm Grant Campbell addressed the same types of billing issues on behalf of Telstra’s Customer Response Unit, in January and February 1995.  This unit wrote to Dr Hughes on 16th December, 1994 to confirm Telstra advised AUSTEL, in writing, they would address Alan Smith’s billing issues as part of their defence of his claim, as per the arbitration agreement.  Alan Smith has always been concerned about Grant Campbell’s handling of Alan’s arbitration material that went through the TIO’s office in 1994/95.
  4. During the early stages of the COT arbitration process, the COT claimants were told that Pia Di Mattina had been seconded from Minter Ellison by the TIO to assist him with the COT arbitration process.  Ms Mattina’s name does not appear in the TIO 1993/94 employee list included in the 1993/94 Annual Report (see E1(c)), although some of other employees Alan Smith dealt with are listed there.  Grant Campbell’s name is not included on the employee list either, even though he dealt with a number of billing issues that Alan Smith raised during his arbitration.

Alan Smith receives exhibits GS-CAV 448 to 456 on 4th March, 2008.

Exhibit 448: confirms sometime around 6th December, 1994, Steven Mead, Telstra’s General Counsel, investigated Ken Ivory’s 1800 problems (Ken Ivory was a COT claimant).  At approx. the same time, Telstra and AUSTEL were passing information regarding Alan Smith’s 008/1800 billing problems to Dr Hughes.  Page 8 of this Mails Details Report refers to a separate 164-page report in relation to Solar-Mesh (Ken Ivory’s business) confirming law firm, Blake Dawson Waldron were involved in this matter with Telstra, together with the TIO’s office.

Exhibit 449: another Mails Details Report dated 17th February, 1997 also relates to Ken Ivory of Solar-Mesh, and confirms Blake Dawson Waldron had an interest in the Ken Ivory/1800 issue.  This document further confirms Telstra’s Ted Benjamin and Graeme Ward were both involved in this particular COT-related 1800 billing problem while, at the same time, Graeme Ward was a member of the TIO Board and Ted Benjamin was a member of the TIO Council (the administrative arm of the COT arbitrations).

Exhibit 450: letter dated 10th July, 1995 from Wally Rothwell (Deputy TIO) to Grant Campbell (Telstra), discussing Ken Ivory’s 1800 billing problems.

Exhibit 451: letter dated 15th December, 1995 from Ted Benjamin to John Pinnock, confirms they were both aware of the 1800 problems Ken Ivory was experiencing.

Exhibit 452:  letter dated 1st April, 1996 from Grant Campbell (Telstra) to Wally Rothwell (Deputy TIO), discusses Ken Ivory’s 1800 billing problems.

Exhibit 453:  an internal Telstra email (FOI folio 000973) dated 5th February, 1997 from Philippi Hore to Carmel Parist, discusses Ken Ivory and ex-Telstra employee, Grant Campbell, noting:-

“Quinton advised me that there was an employee who was the main case officer for Ivory in the early stages. The ex-employee’s name is Grant Campbell. Grant then worked as the Deputy Telecommunication Industry Ombudsman and then on a senior management review team.”

This suggests that, after first working for Telstra, Grant Campbell became the Deputy TIO before returning to Telstra.

Exhibit 454:  facsimile cover dated 10th January, 1994 from Grant Campbell to Warwick Smith TIO, notes:-

“Warwick – Two COT related faxes follow:

  1. Allan Smith [sic] – Cape Bridgewater Holiday Camp
  2. Expression of Interest by Ferrier Hodgson in conjunction with DMR Australia & Dr Gordon Hughes.

Exhibit 455:  letter from Grant Campbell dated 9th February, 1994 written on behalf of Warwick Smith, to Fiona Hills, Telstra’s Manager – Serious Disputes, discusses faxing problems still being experiencing by Alan Smith during his FTSP.

Exhibit 456:  letter from Grant Campbell dated 13th February, 1994 to Fiona Hills, in his capacity as TIO Manager, Enquiries and Complaints, discusses a number of complaints raised by Alan Smith regarding his phone and faxing problems.

Exhibits 454 to 456:  relate to Grant Campbell’s handling of COT case matters while he was TIO Manager of Enquiries and Complaints.

IMPORTANT Food For Thought 

During Graham and Alan’s arbitration procedures they were never informed Grant Campbell defected to Telstra’s Customer Response Unit.

As discussed for the date of 29th December, 1997, Dr Hughes wrote to William Hunt on Blake Dawson Waldron letterhead noting:-

  • “due to a perceived conflict of interest arising from my commencement at
    Blake Dawson Waldron, I shall forthwith cease to act as arbitrator.”

“I noted the following reservations and qualifications expressed by the parties:

  • Mr Schorer has reservations as to whether the arbitration should continue;
  • Mr Benjamin has some reservations as to whether a mediation should be commenced;
  • Mr Schorer’s objects to the involvement of Mr Howell as a technical expert (although this is an issue which has previously been addressed by me).”
    (GS CAV 344)

Question:

Was Dr Hughes aware, at the time he wrote this letter, that:-

  • Blake Dawson Waldron and Ted Benjamin were also investigating another COT case 1800 billing issues along with the TIO?
  • These were the same type of 1800-billing complaints that Ted Benjamin told Dr Hughes on 8th December, 1994 he would address in the Alan Smith’s arbitration.
  • Should Warwick Smith, as the administrator of Graham and Alan’s arbitration, have advised them not to forward arbitration material through Grant Campbell, because he had defected from Telstra?
  • In 1994, Alan supplied the TIO office with FTSP material regarding the 008/1800 and fax problems as part of his claim material (which he later received back from the TIO in 2001, under the Privacy Policy Act).  Was some of this material removed by Grant Campbell when he defected to Ted Benjamin’s Customer Response Unit, before it was assessed by the TIO-appointed technical consultants?
  • Because of the detailed way in which Alan provided his 008/1800 claim documents to the TIO, was some of this material used by Grant Campbell, after he left the TIO office in his effort to further investigate this known systemic billing problem?

Telstra’s Acronyms & Jargon

AOMP:  An Ericsson TMOS Network Management System tool for handling Operations & Maintenance functions for one or more AXE exchanges – particular suited for use as an O&M centre for a number of rural exchanges which are spread over a large geographical area. Please note: while the AOMP has not operated in the Cape Bridgewater location Alan Smith has documented here because documents at hand have discussed this tool.

AOTC: Australian and Overseas Telecommunication Limited – former name of Telstra Corporation Limited – comprising the merged Telecom Australia and Overseas Telecommunication Corporation

ARE-11: Ericsson Analogue Crossbar Controlled Exchange. Please note: this type of exchange was operational during a period Graham Schorer had his problems.

ARF: Urban or large crossbar exchange by Ericsson

ARK: Rural or small crossbar exchange (Ericsson ) Please note: In the Casualties of Telecom (COT) report dated 13th April 1994, AUSTEL reported that the Cape Bridgewater exchange up and until the RCM was installed was an ARK, when in fact the system at Cape Bridgewater was an ‘old’ outdated RAX see below. An ARK crossbar exchange was manufactured approximately 20 years after the RAX system. Portland during the early nineties until August 1991 was an ARK which fed calls to the Cape Bridgewater RAX system.

ATUG:  Australian Telecommunication User Group was operating well before the Telecommunication Industry Ombudsman (office of complaints) was formed in June 1993. ATUG was a voice for small business and as such paled a roll in enhancing services in the communication industry. Graham Schorer was a member of ATUG. Deputy TIO Wally Rothwell, before being appointed as Deputy TIO was Chief Executive Officer of ATUG for ten years.

AUSTEL: Australian Telecommunication Regulatory Authority. Please note: in July/August 1992, the then General Manger of AUSTEL’s Consumer Affairs, Amanda Davis, became involved with helping the COT group establish themselves as being responsible small business people who had legitimate phone complaints. It was through Amanda Davis’ stand in helping beyond the normal roll as an officer of a regulator that she was literally forced to terminate her position.

AXE:  Stored Programme Controlled (SPC) Digitally Switched exchange developed by LM. Ericsson, large numbers exist in the Australian network; used also for ISDN

AXE 104:  LM Ericsson Digital Switch (Rural). Please note: This is the digital exchange that was installed in Portland in August 1991, cutover from the ARK system (see ARK above). In the AUSTEL COT Report {p 167} and questions raised by Senator Alston in the Senate Estimates 25th February 1994, relating to the problems being experienced by Alan Smith while connected to the AXE 104. The Senate Hansard referred to here can be located in Ted Benjamin (Appendix 16(a).

BS: Base station.

Busy Hour:  The hour of the day when the average traffic of an exchange is highest. In Telstra Australia practice, it is defined at the two busiest consecutive half hours commencing at the hour of half hour. NETWORK – The hour during which the total traffic flows through the network under consideration is highest. Please note:  The Bell Canada International (BCI) tests were supposed to be generated through the Busy Hour. In the case of Alan Smith it has now been confirmed that the BCI tests (if they were done at all) were not generated through the Busy Hour.

C & BI:  Charging and Billing Integrity. Please note:  Alan Smith has seen reference to this in his Telstra related billing files (somewhere) and therefore has included the acronym here.

CABS:  Charging AND Billing System (CABS) is an automatic system for billing customers. CABS was replaced by FLEXCAB (when Mr Smith is not sure when) however, FLEXCAB was supposed to have improved the billing capabilities.

Call Trace:  A feature that allows the Customer to cause the last call received to be traced.

Can: Customer Access Network. The part of the network between the telephone exchange main distribution frame and the Service Delivery Point at the customer premises. Please note: on page 243 in the AUSTEL COT Report point 11.8: “…AUSTEL had written to Telecom informing it that the claim in the Bell Canada International report to the effect that Telecom’s customers received a grade of service that meets global standards goes to far because the study was an inter-exchange study only and did not extend to the customer access network – AUSTEL had agreed to the study being so limited on the basis that other monitoring it had requested Telecom to undertake on AUSTEL’s behalf should provided AUSTEL with the data on the efficacy of the customer access network – See Verification issues LGE 7.

CANES:  Customer Access Network Evaluation System – C&C system – provides a complete fault registration, recording, diagnosis & analysis environment aimed at improving responsiveness to reported fault – uses A1 technology – interfaces with SULTAN. Please note:  this is another system for fault finding by way of intercepting telephone conversations.

CCAS: Call Charge Analysis System – monitoring charging of selected services in analogue exchanges. CCAS type systems can not detect the answer signal & hence can not determine if the call was effective or what the chargeable time is on an effective call – the CCAS records are still of considerable use i.e. to allow comparison of CCR & CCAS records on a-party number b-party number, date, call clearance time. Please note: The CCAS data which was not provided to Alan Smith during the SVT testing, now confirms that the SVT tests were not generated as stated in Telstra’s arbitration defence – see Verification issues LGE 7

CCAS ELMI: This is the monitoring equipment that Telstra used under direction from Telstra to test Alan Smith’s service lines during 1992/93. Gordon Stokes, local Portland technician had this equipment attached to Alan Smith’s 055 267267 service on the 13th October 1992, but denied to senior Telstra executives that this equipment had been in use during the day it detected incoming call losses to Alan’s business – see Chronology for this date.

CENTOC: Centralised Traffic Occupancy – computerised traffic recording & monitoring for analogue exchanges. Please note: this information was never provided under FOI by Telstra to either Graham Schorer or Alan Smith during their respective arbitrations. While neither Graham nor Alan actual asked by name they required CENTOC data, as the information being sought under the respective FOI requests, they did ask for all ‘network monitoring’ information. Both Graham and Alan have been advised Telstra’s guards the CENTOC, which is some times referred to as CENTOCTRAXE with armed guards as this data does not lie and will determine whether there are network problems affecting certain locations.

 CHARMS:  Charging Maintenance System – provides locations, rates & charging scales for Telstra’s customer charging – does not store unique customer details, but significant information to classify customer groupings attached to any exchange within the Telstra network.

CLI:  Calling Line Identification – a customer facility in crossbar and SPC exchanges for billing and surveillance purposes – identifies the number of the calling party’s line.

CPE: Customer Premises Equipment. All telecommunications terminal equipment located on the Customer premises, encompassing from the analogue telephone to the most advance data terminals and Customer switches. Please note: Page 53 of the Coopers & Lybrand report acknowledged that Telstra had a habit of blaming CPE for faults instead of proper investigation.

DNF:  Difficult Network Fault, Please note: in the Coopers & Lybrand and AUSTEL COT Report, they jointly refer to the COT Cases as DNF customers.

DOTAC: Department Of Transport and Communications. Please note: the abbreviation for the Communication’s Ministers Office being used by telcos  DCITA – Department of Communications Information Technology and the Arts.

ELMI:  Portable Telephone Charge Analyser. Brand of CCAS equipment used mainly in country area’s.

EOS: End of selection code – used to monitor switching & congestion loss. Please Note: this equipment allows the person operating the monitoring switching device to listen in on conversations. See Gordon Stokes witness statements for Telstra’s arbitration defence of Alan Smith’s claims.

FLEXICAB: A system similar to CABS (see above) but, with many more processes and capable of producing very meaningful management reports. Please note:  nether Graham Schorer or Alan Smith was provided with any FLEXICAB and/or CENTOCTRAXE data information under their FOI requests (during their respective arbitration’s). This update information would have assisted both the TIO appointed technical consultants as well as the claimants consultants in  determining if the SVT testing was authentic or not.

IRS: Inter-network Routing Service.

ISDN:  Integrated Services Digital Network (CCITT) – A switched digital transmission network that provides, through a single digital access point, speech, data and other telecommunication sciences. The hierarchy of digital switching & transmission methods.

LEOPARD:  Local Engineering Operations Processing and Analysis of Recording data – a plant recording & maintenance system for telephone services; a computerised system to cater for all field technical records associated with provision and maintenance of services. Please note: While Alan Smith has not fully looked into Graham Schores’s technical information regarding Mr Schorer’s registered fault complaints, Alan has been able to determine that even after Mr Smith had supplied fault information to either 1100 or the designated special fault centre at Waverley (Victoria),Telstra did  not all ways registered those faults in Leopard.

LOOP: Pair Gain Signalling System

Macrolink:  Telstra’s Primary Rate Access ISDN services that provide a high speed service for speech and data.

MCT:  Malicious Call Trace: Please Note: During May to August 1993, Telstra connected Alan Smith’s incoming 055 267 267 service as well as his 008/1800 free-call service to MCT. Also during May to September 1993, Telstra connected Alan’s facsimile service line 055 267230 to MCT. The side affect-problem with MCT is that it does not allow any other intended incoming call to connect for a 90 second period – see witness statement of Telstra’s Dave Stockdale.

MDF:  Main distribution Frame. Structural hardware, on one part of which terminate the permanent outside lines entering the Customer’s premises and on another part of which terminate the subscriber line multiple cabling, used for associating any outside line with its corresponding internal exchange wiring.

MOSAIC: Trouble Management system – replaced the Leopard system of fault recording.

Multiplexer:  The combining of multiple channels onto a single transmission medium; any process through which a circuit normally dedicated to a single user can be shared by multiple users. Please note: The telephone system that service Alan Smith from August 1991 to 2001, operates using a multiplexer system.

MUX: Multiplexer.

NASM: National AXE System Manger.

NCC:  Network Control Centre.

Neat System:  Network Evaluation and Test System. A test call system consisting of remote transponders, each connected at the network exchange MDF point as a normal customer, and central management and control unit. This system can conduct a schedule of test calls between transponders to measure call set-up, and hold performance, together with transmission, noise, post dialling delay, and other tests. Please note: During the AUSTEL COT Case investigations, AUSTEL implemented through Telstra that all the DNF problem customers had to have Neat Testing performed at their local exchanges. In the case of Alan Smith, it has now been confirmed (see CAV targets) that NEAT testing was performed at the Cape Bridgewater RCM as shown in the AUSTEL report. The NEAT Ericsson equipment used in the Cape Bridgwater tests October/November 1993, allowed for each test to remain open for a minimum of 120 seconds, allowing for transmission testing for noise, post dialling delay faults. This type of Neat transmission testing was used for the SVT tests carried out on Mr Smith’s service during his arbitration (see CAV targets 7 and the Brian Hodge MBE report for more information.

NODE:  A point of a network where various links come together and which generally contains a switching element to direct traffic.

NRR:  Not Receiving Ring. Please note:  the NRR fault was a major problem uncovered by the COT Cases during late 1992 and into 1994. Example: A caller rings a service and does not get connected either receiving a dead-line, or piecing sounds like a facsimile type noise even though no facsimile is connected at the calling end. In the case of Alan Smith, numerous complaints registered to him by customers (when they finally getting through) or by writing to Alan, was the only way he became aware that a customer was lost.

OAS:  Operator Assisted Service.

OFMUX:  Optical Fibre Multiplexer Equipment.

OMP: Operations Maintenance Processor.

OPAS: Operations Performance and Support. Please note: from what Alan Smith has observed from reading a number of technical documents is, that OPAS is the last resort used by local rural technicians.

Outrage:  Is the time that Service to the customer will be unavailable for. Please note: this type of happening to a customer should be kept to a minimum however, Telstra in the case of Graham Schorer and Alan Smith, their customers experiencing (RVA see below) was an outrage from them twofold.

PABX:  Private Automatic Branch Exchange. A small switching system located on a customer’s premises which serves speech and data extensions within a business complex and provides access to the public network. Please note: during the COT arbitrations’ Golden Messenger was operating off of a PABX. System.

PSTN: Public Switched Telephone Network. Public telephone network which generally provides switching and signalling for local, long distance, and international voice and low speed data.

RAX: An outdated communications system which only operated in low call rate locations, designed in the 50s. Please note: the Cape Bridgewater Holiday Camp was connected to an RCM until August 1991.

RCM: Remote Customer Multiplexer – digital pair gain system. Please note: The Cape Bridgewater Holiday Camp operates off of an RCM which is housed in a hut. This system is not an exchange and is totally unmanned.

REARK:  Private company which produces TELCATS reports. Please note: often –quite often, from 1992 through to 1994, REARK was used by Telstra to enable them to provide reports to the Minister of the day, including the regulator AUSTEL

RUBAS: Traffic figure based on the 50 highest half hour average traffic figures over a 7 day period. Please Note: like the CENROC TRAXE and CABS data, the traffic information obtained from RUBAS in the Warrnambool and Portland locations (South West Victoria) was also not supplied to Alan Smith under FOI during his arbitration.

RVA:  Recorded Voice Announcement. A recorded message that is played through to a caller (who might have dialled the right number) but is confronted with a recorded message stating that “the number you have called is not connected.”  Please note: Telstra has recognised that the RVA fault was a known National Network Software problem which came about when they implemented the 1800 number. The RAX and RCM system installed at Cape Bridgewater, which suffered congestion, gave the same type of (recorded message) to the caller into Cape Bridgewater when the system was congested.

 SMART 10:  Subscriber Monitoring & Registration Terminal. This system operates similar to the CCAS see above.

SPC {1} Stored Processor Controlled (Exchange) e.g. AXE, ARE

SULTAN:  Subscriber Line Test Access Network – provides test information vital for diagnosis of customer fault reports and network performance monitoring – used with LEOPARD and CANES –C&C system. Please note: this is another tool for voice interception.

TIMS:  Telephone Information Management System.

TRAFFIC:  A term applying to simultaneous calls in progress, not to total calls generated over a period of time.

TRAXE:  Traffic Recording for AXE – data acquisition system – uses Data General minicomputers located in each State – apart from traffic analysis. Please note: Alan Smith has already mentioned above, that CENTOC TRAXE data information should have been provided to him under FOI during his arbitration. The Customer Remote Multiplexer RCM at Cape Bridgewater was service via an AXE in Portland.

Please note: the following exhibits (which we might have missed into the text of the chronology of events above) can be accessed by placing the cursor over the relevant number range in order to access that exhibit.

AS – CAV 1 to 47 – AS-CAV 48-A to 91 – AS-CAV 92 to 127 – AS-CAV 128 to 180 – AS-CAV 181 to 233 – AS-CAV 234 to 281 – AS-CAV 282 to 323 – AS-CAV 324-A to 420 AS-CAV 421 to 469 – AS-CAV 470 to 486 –AS-CAV 495 to 541 –AS-CAV 542 to 588 – AS-CAV 589 to 647 – AS-CAV 648 to 700 –  AS-CAV 765-A to 789 – AS-CAV 790 to 818 – AS-CAV 819 to 843 – AS-CAV-923 to 946  – GS-CAV 1 to 88GS-CAV 89 to 154-A – GS-CAV 155 to 215 – GS-CAV 216 to 257  – GS-CAV 258 to 323 – GS-CAV 410-A to 447 – GS-CAV 448 to 458 – GS-CAV 459 to 489 – GS-CAV 490 to 521 – GS-CAV 522 to 580 – GS-CAV 581 to 609