Absent justice summary of events

Continued from  Absent Justice My Story last edited August 2019

Alan Smith Discovery Bay 2016

Chapter One 

In January 2018 my partner, Cathy, was with me for my first appointment with our local doctor after I had survived a heart attack and double by-pass surgery.  Although the doctor was very sympathetic to my situation (and he knows my COT story) he couldn’t help but ask:  “Why am I not surprised?”

As I re-edited this section of our story it is now July 2019 and still, every time I go back to finalise various parts of our website at absentjustice.com, and I have to re-read all the complex details that make up the whole, true, terrible story, my anxiety levels instantly begin to rise alarmingly. The situation gets worse though because I also find I am just stuck; I seem to be unable to find the right words to finish off this dreadful story.  It seems that, no matter what I do, I just can’t find a way to properly explain this disaster that we have all struggled with for so many years. One part of the problem is, of course, that none of the COT cases – all honest Australian citizens – should ever have been forced into a situation that would eventually leave us all dealing with so many still-unaddressed crimes; crimes that were committed against us while we were officially part of a government-endorsed, legal, arbitration process.  There are two parts to this problem for the COTs, though: to begin with, there are those who are now identified below, who worked with Telstra to carry out those still unaddressed crimes, and then there is Telstra, an organisation with so much power that they could stop any authorities (including government authorities) from investigating any of those crimes. 

It is important to stress here that every single detail recorded on this website is not only true but is also supported by irrefutable evidence that can now be readily accessed directly from the website.  It is also important to note that, as the result of a recent discussion with other members of the COT group (even though two of them are very sick at the moment) we decided that, considering the stress that we are all still suffering, it would be better to release our stories to the public just as they are on the website now, even if this is not exactly how we had hoped to present them when we began to put the website together..

Judicial impartiality is a significant element of justice. Judges should decide legal disputes free of any personal bias or prejudice. As a result of a conflict of interest, a judge may be unable to maintain impartiality in a case and thus should be disqualified.  During the COT arbitrations, however, our arbitrator (who heard all of the first four cases) had previously also been the legal and business advisor, over a number of years, for one of those first four, although the other three were not made aware of this at the time. Eventually, on 12 May 1995, the arbitrator wrote to notify the TIO (see Open Letter File No 55-A) that the arbitration agreement he had just finished using for my arbitration (mine was the first of the four cases) was ‘not a credible document to have used’, and then the arbitration rules were changed for the other three claimants’?

The arbitrator then increased the time allowed for that same previous client to access FOI documents from Telstra and respond to Telstra’s defence of his case, which gave the previous client a full thirty months longer than he had allowed me.  This is, quite clearly, an indication that the arbitrator was seriously biased towards that previous client (see Conflict of Interest). Surely, once the government was alerted to the fact that this same arbitrator had previously assisted this particular COT claimant during that claimant’s Federal Court Action in 1990, in relation to the very same matters that were now before him, the arbitrator should have immediately been disqualified?

This bias by the arbitrator appears to have flowed over to the non-addressing of the Briefcase Saga report I submitted into the Fast Track Settlement Proposal (FTSP) in January 1994. By 21 April 1994, the powers to be were able to turn this FTSP (commercial assessment process) into Telstra’s preferred rules of arbitration. I was NEVER advised to resubmit my FTSP claim documents into the now arbitration process. I assumed that submission would be taken into account. Is there a more sinister reason as to why this briefcase submission was never defended by Telstra?

As discussed below, government regulatory documents confirm I uncovered sensitive documents left in a Telstra briefcase at my premises. These documents show Telstra knew how severe my telephone problems were, but refused to investigate these complaints unless I first registered them in writing with their lawyers, Freehill Hollingdale & Page. This continual writing up of individual and ongoing telephone faults, to these lawyers, in order to have Telstra investigate these faults almost sent me insane. Instead of keeping this evidence, I was providing it to Telstra and copying the same to AUSTEL, believing this would assist them in locating the problems I was experiencing. I was unaware I would later need this evidence for an arbitration process set up by AUSTEL, the then government communications regulator. This arbitration process meant I had to retrieve, from Telstra and AUSTEL under Freedom of Information, the very same documentation I had provided them. Imagine the frustration of knowing you had provided the very evidence you needed to support your case to the defending party, which was now, with the assistance of the government communications regulator (see Manipulating the Regulator), spuriously hiding it from under the guise of sensitive information i.e. legal professional privilege (LPP) when it was not privileged at all (see Chapter One Burying The Evidence).

The briefcase affair 

My constant complaints to Austel finally bore fruit when, for the first time in this story, Telstra investigators came to Cape Bridgewater. Dave Stockdale and Hugh Macintosh of Telstra’s National Network Investigation Division arrived at my office on 3 June 1993. At last, I thought, I would be able to speak directly to people who knew what they were talking about.

I should have known better. It was just another case of ‘No fault found.’ We spent some considerable time ‘dancing around’ a summary of my phone problems. Their best advice for me was to keep doing exactly what I had been doing since 1989, keeping a record of all my phone faults. I could have wept. Finally, they left.

A little while later, in my office I found that Aladdin had left behind his treasures: the Briefcase Saga was about to unfold i.e. Telstra had knowingly misled and deceived me during my first settlement on 11 December 1992 (See Front Page Part Two 2-B)

The briefcase was not locked, and I opened it to find out it belonged to Mr Macintosh. There was no phone number, so I was obliged to wait for business hours the next day to track him down. But what there was in the briefcase was a file titled ‘SMITH, CAPE BRIDGEWATER’. After five gruelling years fighting the evasive monolith of Telstra, being told various lies along the way, here was possibly the truth, from an inside perspective.

The first thing that rang bells was a document which revealed Telstra knew that the RVA fault they recorded in March 1992 had actually lasted for at least eight months — not the three weeks that was the basis of their settlement pay-out. Dated 24/7/92, and with my phone number in the top right corner, the document referred to my complaint that people ringing me get an RVA ‘service disconnected’ message with the ‘latest report’ dated 22/7/92 from Station Pier in Melbourne and a ‘similar fault reported’ on 17/03/92. The final sentence reads: ‘Network investigation should have been brought in as fault has gone on for 8 months.’

I copied this and some other documents from the file on my fax machine, and faxed copies to Graham Schorer. The next morning I telephoned the local Telstra office, and someone came out and picked the briefcase up.

Just the information in this document of 24 July 1992 was proof that senior Telstra management had deceived and misled me during negotiations with me and showed too that their guarantees that my phone system was up to network standard were made in full knowledge that it was nowhere near ‘up to standard’.

Not only was Telstra’s area general manager fully aware at the time of my settlement on 11 December 1992 that she was providing me with incorrect information which influenced my judgement of the situation, placing me at a commercial disadvantage, but the General Manager, Commercial Victoria/Tasmania was also aware of this deception.

The use of misleading and deceptive conduct such as this in a commercial settlement such as mine contravenes Section 52 of the Australian Trade Practices Act. Yet this deception has never been officially addressed by any regulatory body. To get ahead of my story here, even the arbitrator who handed down his award on my case in May 1995 failed to question Telstra’s unethical behaviour.

I took this new information to Austel, and on 9 June 1993, Austel’s John MacMahon wrote to Telstra regarding my continuing phone faults after the settlement, and the content of the briefcase documents: this letter states:

Further, he claims that Telecom documents (found in the briefcase) contain network investigation findings which are distinctly different from the advice which Telecom has given to the customer concerned.

In summary, these allegations, if true, would suggest that, in the context of the settlement, Mr Smith was provided with a misleading description of the situation as the basis for making his decision. They would also suggest that the other complainants identified in the folders have knowingly been provided with inaccurate information

I ask for your urgent comments on these allegations. You are asked to immediately provide AUSTEL with a copy of all the documentation which was apparently inadvertently left at Mr Smith’s premises for his inspection. In light of Mr Smith’s claims of continuing service difficulties, I will be seeking to determine with you a mechanism which will allow an objective measurement of any such difficulties to be made”.(See Arbitrator File No 61)

On the 12 July 1993, a newspaper article from the Portland Observer Newspaper is headed ‘Network Complaints Taken Up by MPs’, and notes:

“Problems highlighted by Cape Bridgewater Holiday Camp operator Alan Smith, with the Telecom network have been picked up on by not only other disgruntled customers but Federal politicians. Having suffered a faulty telephone service for some five years, Mr Smith’s complaints had for some time fallen on deaf ears, but it now seems people are standing up and listening. Federal Member for Wannon, David Hawker, described the number of reports of faulty and inadequate telephone across Australia as alarming. Mr Hawker said that documents recently presented to him showed that the problems people had been experiencing Australia wide had been occurring repeatedly in the Portland region.” (See Cape Bridgewater Chronology of Events File No -17)

The pressure on all four of us COT cases was immense, with TV and newspaper interviews as well as our continuing canvassing of the Senate. The stress was telling by now but I continued to hammer for a change in rural telephone services. The Hon David Hawker MP, my local Federal member of parliament, had been corresponding with me since 26 July 1993.

“A number of people seem to be experiencing some or all of the problems which you have outlined to me. …

“I trust that your meeting tomorrow with Senators Alston and Boswell is a profitable one.” (See Arbitrator File No/76)

On 27 August 1993, Telstra’s corporate secretary (during the period he was a Telecommunications Industry Ombudsman (TIO) board member) wrote to me about Telstra documents that were inadvertently left in a briefcase at my premises on 3 June 1993 (see Chapter Two Arbitrator / Part One), noting:

“Although there is nothing in these documents to cause Telecom any concern in respect of your case, the documents remain Telecom’s property and therefore are confidential to us. …

“I would also ask that you do not make this material available to anyone else.” (See Open Letter File No/2)

Telstra’s FOI document dated 23 August 1993 and labelled folio R09830, with the subject of ‘The Briefcase’, is alarming to say the least. This document, which was copied to Telstra’s corporate secretary, notes:

“Subsequently it was realised that the other papers could be significant and these were faxed to Craig Downing but appear not to have been supplied to Austel at this point.

“The loose papers on retrofit could be sensitive and copies of all papers have been sent to Ross Marshall.” (See Arbitrator File No 62)

Chapter Two

Rural Automatic Exchange (RAX) 1987 to August 1991

AUSTEL’s sanitized public report, provided to the communications minister The Hon Michael Lee MP, shows AUSTEL stated the telephone exchange at Cape Bridgewater, for the first three-and-a-half year period I commenced running my business, was a modern ARK exchange – designed more than 20 years after the RAX exchange had been installed at Cape Bridgewater.

Joker One

The RAX exchange (which was unmanned) had only 8 final selectors shared between myself and the 130 residences of Cape Bridgewater. This false reporting by the Australian Communications Regulator and Telstra allowed Telstra’s witnesses (their local Portland technicians) to submit known false statements under oath concerning this service.  service provided by Telstra.

One particular Telstra witness statement sworn under oath by a Portland technician dated 12 December 1994 who we shall name as Joker One (see False Witness Statement File No 14) states:

“The Cape Bridgewater RAX exchange was fully equipped to handle 90 subscribers. At the time it was replaced with the Portland to Cape Bridgewater RCM systems it had 66 subscribers and therefore was not operating to its full capacity. Mr Smith is the only customer at Cape Bridgewater with a consistent complaint history” 

Whatever made this Telstra employee state the ‘RAX exchange was fully equipped to handle 90 subscribers’ when it is clear from government records Burying The Evidence File) that the Cape Bridgewater RAX exchange was very old technology designed in the 1950s [sic] for very low calling rate areas? for example (based on the unit having 8 Final Selectors) the maximum calls that could be handled at the same time irrespective of the number of services connected (of which were 66 in 1991).

If there were, say, four local to local calls in progressthen only four calls to local numbers could be handled from outside the area at the same time.

By 1991 the Cape Bridgewater RAX exchange serviced 66 homes.

Those 66 phone lines (subscribers) equated to at least two adults per house – 132 residents-plus children.  If four residents were using their phone service at the same time then there were only four lines available for the remaining 128 residents plus their children. And, over holiday periods and long weekends, the Cape Bridgewater population grew exponentially. Mobile phones could not be successfully used in Cape Bridgewater at the time this false statement was made. In August 1991, this RAX was replaced with an unmanned switching system called an RCM.

One of the Telstra technicians, whom I refer to below as Joker Three, and who was one of those who knowingly and deliberately misled and deceived the arbitrator during my arbitration, is a respected member of the Portland community in a position to often make decisions affecting Portland residents as well as the local council. This, I believe, puts me in a difficult situation: i.e., do I have a moral obligation to tell my Federal Member of Parliament about this man’s appalling past behaviour? Clearly, lying under oath in a formal litigation process, or at any other time for that matter, is not something that would meet the expected criteria for a person whose professional advice is often sought by others.

I have sat on this evidence for more than twenty years now, without publicly naming this Joker, or identifying any of the six other Telstra employees who also lied in their arbitration witness statements, even though, so far, none of those Australian citizens has come forward to explain why they lied as they did, during my arbitration.  Having clear proof of these types of crimes have taken a serious toll on both my partner’s health and mine, and we deserve to have some peace of mind in the years that are left. For this reason, I am, again, informing my local Member of Parliament, The Hon Dan Tehan MP, this time on 14 January 2019, of these still unaddressed arbitration issues. I hope this will prompt him to remind the government that it was at the persistence of his predecessor, The Hon David Hawker MP, The Hon Richard Alston (the then Shadow Minister for Communications) and the government communications regulator that I ventured down the path that has to lead me to where I am today.

Between April 1988 and through to my arbitration of 1994 and 1995, I continued to experience faults with my phone service, particularly call drop-outs when, part-way through a conversation, the line would simply go dead, and short duration rings when the phone would ring once or twice and then stop, with no-one there if we picked up the receiver. In October of 1992, Joker Three arranged for two testing machines (called ‘Elmi’ machines) to be installed, one at the local Cape Bridgewater exchange and the other at my office.

In the afternoon of 13 October 1992, I reported four calls dropping out, at 1.20, 1.40, 2.00 and 3.00, and an occasion when I had answered the phone to find a dead line. Despite the Elmi machines, the Telstra technicians found, as they had in so many instances before, no faults that they could detect. What was going on?

In June 1993, I obtained a bundle of Telstra related documents from AUSTEL, one of those documents was a hand-written file note stating,

“We had the Elmi disconnected at the RCM [unmanned telephone exchange] and were installing it at Mr Smith’s house and the CCAS showed no evidence of above [not receiving ring] 1.20, 1.40, 2.00 and 3.00.” (See My Story Evidence File 1)

This was simply not the case at all; I knew Joker Three was not installing it at my house at this time; it was already installed. So I asked Telstra to supply their Elmi print-outs from September–October 1992. Some weeks later a number of documents arrived, including tapes which show that the call drop-outs and dead lines that I had experienced appeared on Telstra’s Elmi tapes (see My Story Evidence File 2) as answered calls at approximately 1.30 pm and 3 pm.

I could not fathom why a local technician would state that the Elmi equipment was disconnected at the exchange and were installing it at my house when these two print-outs show that it was actually installed and operating at both locations, albeit incorrectly.

If Joker Three says that the file note in My Story Evidence File 1 is not his handwriting and that he knows nothing in regards to the information provided on this document, then some other Joker at the Portland telephone exchange misinformed Telstra management concerning my legitimate complaints.

At point 5.8 in the arbitrators award under the heading Faults Caused by Claimant”  the arbitrator notes: “A simple example is said to involve the claimant [me] leaving the phone off the hook”. At point 21 in the False Witness Statement File No 13-A), prepared by Joker Three when discussing this Elmi equipment on 8 September 1993 (twelve months later) he: “concluded that Mr Smith’s telephone had been off the hook”. 

I doubt that had the arbitrator been aware of Joker Three’s past history of lying about this Elmi machine whether he would have taken this witness statement into consideration when making his award.

A Telstra minute, dated 2 July 1992, concerning the Portland AXE telephone exchange states:

“Our local technicians believe that Mr Smith is correct in raising complaints about incoming callers to his number receiving a Recorded Voice Announcement saying that the number is disconnected.

“They believe that it is a problem that is occurring in increasing numbers as more and more customers are connected to AXE.” (See False Witness Statement File No 3-A)

This one Telstra minute, dated 2 July 1992, (on its own) shows what a liar Joker Three is. 

Joker Two

The author of this AXE document, whom I have named Joker Two, like Joker Three also signed an arbitration witness statement, dated 12 December 1994, which told a completely different story to what he and Joker Three knew about the Portland AXE exchange. In his witness statement, he states, “I had perceived problems” but then says he had not observed any deficiencies in the service provided by Telstra. Yet it is clear from the AXE document that this is not the case. Folios C04007 and C04008, headed TELECOM SECRET (see Front Page Part Two 2-B) states:

“Legal position – Mr Smith’s service problems were network related and spanned a period of 3-4 years. Hence Telecom’s position of legal liability was covered by a number of different acts and regulations. … In my opinion Alan Smith’s case was not a good one to test Section 8 for any previous immunities – given his evidence and claims. I do not believe it would be in Telecom’s interest to have this case go to court.

“Overall, Mr Smith’s telephone service had suffered from a poor grade of network performance over a period of several years; with some difficulty to detect exchange problems in the last 8 months.”

Why hasn’t the Australian government demanded answers from Telstra management as to why Joker Two and Joker Three, have not been made to account for their unlawful conduct?

It is clear from much of the information supplied by David Hawker, MP, to me in 1993 and 1994, that many people as far away as Penshurst, Apsley, Hamilton, Timboon, Victoria Valley and through to Portland were complaining to him about the phone problems in his electorate. The Hon Mr Hawker was passing on many of those complaints to me for the COT cases to take to Parliament House, Canberra, in our pursuit to have the Senate investigate why so many rural south-west citizens were experiencing the same problems as my business (see Introduction File No/11-E).

Testimonials  

A letter dated 6 April 1993, from Cathy Lindsey, Coordinator of the Haddon & District Community House Ballarat (Victoria) to the Editor of Melbourne’s Herald-Sun, read:

“I am writing in reference to your article in last Friday’s Herald-Sun (2nd April 1993) about phone difficulties experienced by businesses.

I wish to confirm that I have had problems trying to contact Cape Bridgewater Holiday Camp over the past 2 years.

I also experienced problems while trying to organise our family camp for September this year. On numerous occasions I have rung from both this business number 053 424 675 and also my home number and received no response – a dead line.

I rang around the end of February (1993) and twice was subjected to a piercing noise similar to a fax. I reported this incident to Telstra who got the same noise when testing.”

(Because of a number of reports regarding this ‘piercing noise’, Ray Morris from Telstra’s Country Division arranged to have my service switched to another system.” (See My Story Evidence File 10-B)

The pressure on all four of us COT cases was immense, with TV and newspaper interviews as well as our continuing canvassing of the Senate. The stress was telling by now but I continued to hammer for a change in rural telephone services. The Hon David Hawker MP, my local Federal member of parliament, had been corresponding with me since 26 July 1993.

“A number of people seem to be experiencing some or all of the problems which you have outlined to me. …

“I trust that your meeting tomorrow with Senators Alston and Boswell is a profitable one.” (See Arbitrator File No/76)

On 18 August 1993 The Hon David Hawker MP again wrote to me, noting:

“Further to your conversations with my electorate staff last week and today I am enclosing a copy of the correspondence I have received from Mr Harvey Parker, Group Managing Director of Commercial and Consumer division of Telecom.

“I wrote to him outlining the problems of a number of Telecom customers in the Western Districts, including the extensive problems you have been experiencing.” (See Arbitrator File No/77 and Arbitrator File No/82)

Comments made from the Herald Sun newspaper dated 30 August 1993, confirm just how damaging some of these newspaper articles were to my already ailing business with statements like:

“The Royal Children’s Hospital has told a holiday camp operators in Portland that it cannot send chronically ill children there because of Telecom’s poor phone service. The hospital has banned trips after fears that the children’s lives could be at risk in a medical emergency if the telephone service to the Portland camp continued to malfunction”.

The centre’s stand follows letters from schools, community groups, companies and individuals who have complained about the phone service at Portland’s Cape Bridgewater Holiday camp.”

Youths from the Royal Children’s Centre for Adolescent Health, who were suffering from “chronic illnesses”, visited the camp earlier this year.   

Group leader Ms Louise Rolls said in a letter to the camp the faulty phones had endangered lives and the hospital would not return to the camp unless the phone service could be guaranteed”

Five years after this article was released, Helen Handbury (sister to Rupert Murdoch, who then owned and still owns the Herald Sun visited the holiday camp). Helen’s remarks about my story, after reading the first draft can be viewed by clicking on to the following Australian Federal Police Investigations-link and scrolling down to Chapter Four.

Regardless of the negative effective that some of these newspaper articles were having on the well-being of my business, particularly when they were combined with various  damaging comments from customers, such as: “… the faulty phones had endangered lives and the hospital would not return to the camp unless the phone service could be guaranteed”, I kept focused on what COT was pushing for: a Senate Inquiry into Telstra’s unethical treatment of our small group of legitimate claimants.

A further letter of support for the Senate Inquiry from a worker at D. Madden & Co of Warrnambool (Lawyers), dated 10/11/93, gave added heart to my decision to fight on. (My name had been passed to Madden & Co by The Hon David Hawker, with regard to a public meeting COT was organising.)

“I am writing in reference to the proposed Senate Committee Investigation into Telstra.

As you are aware, I am employed as a telephonist with a large legal firm in Warrnambool. In the course of my employment, and particularly during the months of July and August this year, numerous service faults have been brought to my attention. These problems include:

  1. Calls being disconnected during conversation.
  2. Recorded messages informing Melbourne clients and callers that the number has been disconnected when the correct number was dialled.
  3. An engaged signal received by callers despite a number of lines being available.
  4. Complaints from callers that the line has rung out when no ringing tone has been received at the number dialled.

Our firm duly contacted Telstra on a number of occasions in an effort to have these fault rectified. However, Telstra technicians were constantly unable to identify the numerous problems and subsequently remedy our complaints.”

Rural subscribers wrote to TV stations and newspapers supporting my allegations that, with regard to telephone services, rural small-business people, as well as the general public, suffered a very bumpy playing field compared to our city cousins. David M. Thomson & Associates, Insurance Loss Adjusters in Ballarat, wrote to the producer of Channel 7’s ‘Real Life’, a current affairs program:

“I have watched with interest the shorts leading up to tonight’s program as I have similar problems to the man at Cape Bridgewater.

Our office is located in Ballarat and due to Telstra structure the majority of our local calls are STD-fee based.

On many occasions we have been unable to get through to numbers we have dialled, often receiving the message ‘This number is not connected’ or similar messages which we know to be untrue.

Clients report that they often receive the engaged signal when calling us and a review of the office reveals that at least one of our lines was free at the relevant time.

We have just received our latest Telstra bill which in total is up about 25–30% on the last bill. This is odd because our work load in the billing period was down by about 25% and we have one staff member less than the previous billing period.”

The Hon David Hawker MP

Chapter Three 

On 9 December 1993, The Hon David Hawker wrote to thank me for:

“…your persistence to bring about improvements to Telecom’s country services. I regret that it was at such a high personal cost.” (See Arbitrator File No/82)

This was very affirming, as was another letter, dated 9 December 1993, from The Hon David Beddall, MP, Minister for Communications in the Labor Government, to Senator Michael Baume, senator for New South Wales, that says:

“Let me say that the Government is most concerned at allegations that Telecom has not been maintaining telecommunications service quality at appropriate levels. I accept that in a number of cases, including Mr Smith’s there has been great personal and financial distress  This [sic] is of great concern to me and a full investigation of the facts is clearly warranted.” (See Arbitrator File No/82)

A Portland Telstra technician, whom I have named Joker Seven, experienced major problems during his official fax-testing process of my service on 29 October 1993, nevertheless he advised the arbitrator that there was no problem with that service, despite what the following Telstra document shows:

Joker Seven

“During testing the Mitsubishi fax machine, some alarming patterns of behaviour were noted, these affecting both transmission and reception. Even on calls that were not tampered with the fax machine displayed signs of locking up and behaving in a manner not in accordance with the relevant CCITT Group 3 fax rules. … Even if the page was sent upside down the time and date and company name should have still appeared on the top of the page, it wasn’t. During a received call the machine failed to respond at the end of the page even though it had received the entire page (sample #3).” (See False Witness Statement No 7-A)

Didn’t this local Telstra technician understand that lying under oath in his witness statements assisted Telstra to conceal from the government and the arbitrator how bad the phone system really was in his hometown of Portland? Did he not understand that hindering my chances of getting a fair hearing in the arbitration also hurt his own family and friends, who were also residents of our region?

The cover-up continues

This internal Telstra document discusses the errors experienced at the Cape Bridgewater unmanned exchange, at least up to July 1991, and states:

“When the ‘A’ direction of system 2 was initially tested, approximately 11000 errors per hour were measured. In the ‘B’ direction, approximately 216 errors per hour were measured, 72 errors per hour is the specified number allowable.” (See Main Evidence File No 22)

False Witness Statement File No 13-B), dated July 1993, clearly shows Telstra continued to experience degraded errored seconds and minutes in the newly installed exchange at Cape Bridgewater. Worse, even though this new RCM exchange was installed in August 1991, Telstra did not realise it hadn’t connected the fault alarm system, from the main Portland manned exchange to this unmanned Cape Bridgewater exchange (18kms from Portland), until March 1993 (18 months later)! This March 1993 document reports the following:

“Initial error counter readings, Portland to Cape Bridgewater direction”:
  System 1 System 2 System 3
SES 0 0 0
DM 45993 3342 2
ES 65535 65535 87

“At this stage we had no idea over what period of time these errors had accumulated.

  • the alarm system on all three RCM systems had not been programmed. This would have prevented any local alarms being extended back to Portland.”
Joker Three

This False Witness Statement File No 13-A), signed by Joker Three, is possibly the worst example of Telstra employees swearing under oath to something they knew was a lie. At point 9 in this document the author states:

“I checked the CRC error counters regularly between the date the RCM systems were installed and February 1994 when I left Telecom. Checking the CRC counters in this way was a normal maintenance practice. I can recall checking the CRC counters prior to March 1993. When I checked the CRC counters pre March 1993 I did not observe any errors that could have impacted upon the telephone service provided to Cape Bridgewater customers. A typical reading for each RCM system was 5 to 10 errored seconds, no degraded minutes and no severely errored seconds. I regularly checked the CRC counters for possible faults particularly when Mr Smith reported complaints.”

At point 27 in this same False Witness Statement File No 13-A, Joker Three officially advises the arbitrator “The standard of service provided to Mr Smith was entirely consistent to be a very good level of service provided to other rural customers.”

This point 27 statement does NOT match False Witness Statement File No 13-B or the many statements made by the government communications regulator in its own AUSTEL’s Adverse Findings, of 3 March 1994. (See points 10, 17, 18, 23, 37, 39, 40, 42, 44,46,47, 53, 56, 61, 62, 70, 75, 76, 79, 86, 87, 89, 91, 92, 93, 98, 100, 101, 104, 105, 109, 110, 111, 112, 118, 115, 129, 130, 136, 144, 151, 153, 158, 170, 173, 186, 187, 188, 206, 207, 208, 209, 210, 211 and 212.

In particular, at point 212, AUSTEL notes: “In view of the continuing nature of the fault reports and the level of testing undertaken by Telecom doubts are raised on the capability of the testing regime to locate the causes of faults being reported.” This statement suggests the government communications regulator believed my phone problems would not be located.

Had Telstra’s management conveyed to the arbitrator that AUSTEL had doubtson the capability of the testing regime to locate the causes of faults being reported”, then the arbitrator’s award would have had to allow provisions for me to further claim against Telstra once the fault causes were located and fixed.

Cape Nelson – Portland Lighthouse

It is also clear from AUSTEL’s Adverse Findings, at point 209, which states, “Cape Bridgewater Holiday Camp has a history of service difficulties dating back to 1988. Although most of the documentation dates from 1991 it is apparent that the camp has had ongoing service difficulties for the past six years which has impacted on its business operations causing losses and erosion of customer base,” that the government’s own findings prove that Joker Three knowingly lied under oath.

Portland/Cape Bridgewater logbook

At Point 25 in his False Witness Statement File No 13-B Joker Three notes

“During the period that I was maintaining the Portland exchange my file containing details relating to Mr Smith’s service complaints was a similar size to my file for the other 7000 odd subscribers connected directly to the Portland exchange”. 

Between February 1994 and April 1995, I tried, a number of times, to get my hands on the original version of the Portland/Cape Bridgewater log book, and so did the Commonwealth Ombudsman’s Office, on my behalf; we were both unsuccessful.  This logbook was particularly important because it would have included information recorded by ‘Joker Three’ in relation to all the faults I had registered with the exchange, as well as the faults registered by the other 7,000-odd subscribers connected directly to the Portland exchange’.  Neither the arbitrator (Dr Hughes) nor Telstra’s CEO (Frank Blount) would, however, agree to access this very important document (and/or documents). I also requested this information under the official, legal discovery process but didn’t even receive a response from the arbitrator. Even Telstra’s own Senior Protective Services Officer claimed in his witness statement that he could not locate this log book (see Main Evidence File No 30).

Joker Five

Portland Tourist Information Centre

It is important we conclude these falsehoods by combining AUSTEL’s letters to Telstra dated 6 January, 27 January and 4 October 1994 (see False Witness Statement Files 15-B to 15-F) because these show AUSTEL knew there were many problems affecting a number of other Portland and Cape Bridgewater Telstra customers.

AUSTEL’s 27 January 1994 letter to Telstra’s Steve Black (see File 15-C) states:

“You are probably aware of Mr Smith’s ongoing complaints as to the efficacy of his 008 service – he maintains that many callers receive a RVA advising that the number is no longer connected.”

“Further to that point is the experience of the Portland Tourist Information Centre which is now complaining of precisely the same problem. It is understood that these issues gained prominence after considerable incidences of problems from various points throughout Australia following a nation-wide promotion of south western Victoria. A copy of a fax from the Centre is attached. You may wish to consider this issue further.

Joker Three and Joker Seven have been prominent identities in Portland over the past twenty-years, advising interested parties on a number of issues. This suggests they have never really understood the damage their misleading and deceptive statements caused, not just to me but to others in the Portland region. Had the arbitrator full knowledge that my complaints of ongoing problems were real, and not a figment of my imagination, this may well have prompted him to have these complaints investigated by an impartial entity instead of Telstra, who were, after all, the defendants in my government-endorsed arbitration. NO testing of my service was undertaken by anyone other than Telstra during my arbitration.

Chapter Four

Before the arbitrations actually began

Before arbitrations began actually, the arbitrator was provided with a watered-down version of AUSTEL’s Adverse Findings now entitled ‘The COT Cases AUSTEL’s Findings and Recommendations’ that was officially submitted to all parties involved in the first four arbitrations as well as various government ministers.

AUSTEL’s Findings and Recommendations regarding the COT cases look good to the casual observer, but it is now clear that much of the information AUSTEL obtained from Telstra for its public report was at best inaccurate and, at worst, fabricated and AUSTEL knew this when it submitted this report into the public domain. AUSTEL’s Adverse Findings and exhibits 20111025143553046 and 20130627133948062 show AUSTEL knew it was not reporting all of the facts concerning the ongoing problems being experienced by at least two COT cases. However, that said, one of AUSTEL’s recommendations in this watered-down report was that it was adamant the COT cases’ telephone problems had to be fixed before an assessor or arbitrator could bring down formal findings.

Those particular findings and recommendations, dated 13 April 1993, state, at point 5.78: “an agreed standard of service, being developed in consultation with AUSTEL [the then government communications regulator] to be applied to any case subject to settlement is essential”. It is clear from this 258-page report, and other similar statements made by AUSTEL, that no finding by the arbitrator could be brought down until Telstra had proved it had fixed all of the ongoing telephone problems being experienced by those entering settlement and/or arbitration. After all, what was the purpose of an arbitration process if the claimants’ businesses were still affected by the ongoing problems that brought them into the process in the first place?

Point 5.25, 5.29 and 5.32 in this public report (see AUSTEL Evidence File 1-A states:

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

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

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

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

In the case of at least six of the Service Verification Tests conducted at the COT-cases businesses including my businesses, NO supervised testing of those service lines were carried out by anyone other than the defendants Telstra i.e. NO independent arbitration umpire was present when these tests used by Telstra as defence documents were in attendance when they were conducted. 

Cape Bridgewater Holiday Camp and Residence

What then transpired would have been laughable, if the results didn’t have such serious consequences.  In my case, DMR Group Australia Pty Ltd was not available during the SVT process conducted on 29 September 1994, and thus Telstra was allowed to conduct the entire Cape Bridgewater Holiday Camp SVT process without any sort of supervision from the arbitrator. In fact, even though DMR Group Australia Pty Ltd was named in the Arbitration Agreement as being the independent technical consultants for the first four arbitrations they never made themselves available for the whole entire arbitration process.

It was not until five months after Telstra had, claimed they had carried out the arbitration SVT process at my business premises, on 29 September 1994, that DMR Group Inc (in Canada) was commissioned (on 9 March 1995) as appointed technical arbitration consultants for the four COT arbitrations. So was this eleven-month delay in finding a technical consultant deliberately orchestrated perhaps, so that there was NO independent consultant around while Telstra fudged their SVT process? Paul Howell, of DMR Canada did not fly over from Canada until the second week of April 1995.

PLEASE NOTE: Warwick Smith (the official Administrator for the COT arbitrations) advised the first four COT cases that, if they signed for the TIO-administered arbitration, then the Arbitration appointed technical consultants, DMR Group Australia Pty Ltd, would ensure that all arbitration technical issues, such as the arbitration Service Verification Tests (SVTs), would be conducted according to the Government communications regulatory requirements. After all, what was the point of the Government-endorsed arbitration process, if those requirements were not met?

How can you have an arbitration process – a supposedly equal footing for both parties – when one of those parties (i.e., Telstra) is officially being investigated by the Australian Federal Police (AFP) for intercepting the claimants’ telephone conversations and arbitration-related faxes? How could both the arbitrator and the administrator of the arbitration process allow the defendant of those crimes, Telstra, to carry out its own arbitration service verification tests of the claimants’ telephone service, while still under investigation by the AFP? As shown in my report, titled > Telstra’s Falsified SVT Report, Telstra fabricated their Cape Bridgewater SVT arbitration testing and the arbitrator accepted that report as factual.

Neither Warwick Smith (administrator to the arbitrations) nor Dr Hughes (the arbitrator of the process) took into consideration the normal legal rights of the COT cases when they allowed the defendants (Telstra) to conduct their own arbitration testing process without that SVT process being scrutinized by the TIO-appointed technical consultants?

Now that the Government that endorsed my arbitration is aware that not all of my claim documents reached the arbitrator’s office, either as a direct result of the very poor network or because those documents were illegally intercepted en route to the arbitrator for assessment, why hasn’t anyone even begun to investigate this? Why am I being denied the opportunity to resubmit the claim documents that we can prove were faxed to the arbitrator’s office but were never investigated? What have Telstra and the Government got to hide if I cannot prove what I am claiming, i.e. that numerous arbitration documents of great value to my case were never assessed by the arbitrator, particularly after the April 1994, Government Communications Regulator’s COT Cases public report respectfully notes:

… first at point 5.68.14:

“the arbitrator will make his determination on reasonable grounds as to the link between the claim and alleged faults drawing reasonable inferences from the material presented by the claimants and Telecom”

… and again at point 5.68.15:

“the arbitrator will set out his reasons in full”  

In my case, how could the arbitrator make a determination based ‘on reasonable grounds’ from the material I presented, when that material never arrived even though my fax account shows it was sent (see FrontPage Part One File No/1)?

Two weeks after I signed my arbitration agreement, I received a letter dated 6 May 1994 from Peter Bartlett, the TIO-appointed arbitration special counsel. Mr Bartlett wrote:

“I certainly told you that nothing in the Procedure would prevent you from including in your claim ‘consequential losses, flow-on losses, loss of health etc.’ However, I must emphasise that Dr Hughes can only make a decision on the material before him.” (See False Arbitration Statement FILE No 15-A)

This is conclusive proof, from the official arbitration legal counsel, that Dr Hughes could only make a decision on the material before him.

SVT and billing documents never reached the arbitrator 

NONE of these letters actually reached the arbitrator.

Residence next door to the camp

Chapter Five

Collusion at its worst

As has been shown in our Prologue Chapter One page there is more to this DMR Inc Canada technical reporting issue that the TIO and arbitrator wants to acknowledge.

On 11 October and 16 November 1994 AUSTEL wrote to the Telstra arbitration liaison officer under the heading Service Verification Test Issues, outlining their concerns regarding the deficiencies in the testing process conducted at the Cape Bridgewater Holiday Camp (see Main Evidence File No/2). Telstra’s CCAS data for the day (29 September 1994) testing took place at my premises confirms that not one of the incoming tests connected to any of my three business lines met the regulator’s mandatory requirements.

Even though I advised Dr Hughes, between 2 October 1994 and 15 February 1995, that Telstra’s unsupervised SVT process at my premises was grossly deficient, he ignored my letters and the evidence attached to them as Chapters Three to Five in our Prologue page shows. Despite my pleas, and my technical consultant George Close’s evidence showing my business was suffering from a 49 per cent unavailable service on one phone line and a 52 per cent failure rate on the other, Dr Hughes still disallowed his technical consultants the time they required to investigate these still unaddressed faults (see Introduction File No/4-D).

Letters from AUSTEL to Telstra, prior to the SVT process, alerted Telstra that testing equipment set up at the local exchange and routed through to my business caused even more problems to my business (see Introduction File No/4-F), and yet they used the same equipment for their SVT process.

At point 212, in AUSTEL’s Adverse Findings they note:

“In view of the continuing nature of the fault reports and the level of testing undertaken by Telecom doubts are raised on the capability of the testing regime to locate the causes of faults being reported.”

No one, to date, has investigated why Warwick Smith (the administrator to my arbitration) did not ensure my rights, as a claimant, were protected when the defendant was allowed to perform its own arbitration Service Verification Testing on all of my three service lines.

At point 27 in one of Telstra’s arbitration witness statements (see False Witness Statement File No 13-A), this Telstra witness officially advised the arbitrator “The standard of service provided to Mr Smith was entirely consistent to be a very good level of service provided to other rural customers.”

This point 27 statement does NOT match the government communications regulatory own covert findings on their investigation into my complaints as AUSTEL’s Adverse Findings show (see above)

Just as important is, why did the arbitrator, Dr Hughes, allow the most important technical issue in the whole COT arbitration process – the testing of the COT cases’ business service lines (the very reason for the arbitration process in the first place) – to be conducted, unsupervised, by the defendant, who was technically on trial for not providing the claimants with a service fit for purpose? Was covering up Telstra’s ailing copper-wire network more important than the businesses and lives of those who originally dared challenge the system on behalf of all Australians?

It has been proven to those same offices that Warwick Smith (TIO) entered into a covert arrangement, with Telstra (the defendant), that the TIO-appointed arbitration resource unit would be given the charter of deciding what documents reached the arbitration process and which would be discarded. (See Telecommunication Industry Ombudsman, TIO & Arbitration Administrators and Arbitrator / Part Two/Chapter Seven) and exhibit My Story Evidence File/16. There is no amendment in the arbitration agreement that allowed the resource unit to control what the arbitrator and claimants saw during our arbitration processes.

It was not AUSTEL’s intent to have the COT Cases to again duped as they were prior to their first settlement processes with Telstra. In my case, it was what I found in a briefcase inadvertently left at my premises by a Telstra employee that prompted AUSTEL to insure that all of the COT Cases phone problems had been fixed before the arbitrator and/or assessor made their final judgement – hence the SVT testing regime.

While we are not glorifying Juliana Assange in our Hacking Julian Assange as an Australian national hero to the free world, it that he and his young friends played a very important part in the COT four arbitrations. The profile of these youths fit the profile of Julian Assange and the hackers mentioned in a number of editorials.  We have discussed this hacking issue because if it was was not Julian Assanage and his young friends who contacted COT spokesperson, then someone else in Melbourne Australia decided to expose what they did, and as it turned out (see  absentjustice.com brief summary part 1 absentjustice.com brief summary part 2Australian Federal Police Investigations, Tampering With Evidence and the Destruction of Evidence Telstra and a number of their employees did pervert the course of justice during the COT arbitrations just as the three young hackers advised Graham Schorer was happening. Therefore, it was important we raise the Julian Assange issue here because of the serious nature of what these hackers saw as an injustice against fellow Australian citizens.

Enter the Hackers

After contacting me to discuss this offer, Graham and I decided not to accept this information. We were of the belief that accepting damning evidence outside the due process of discovery and/or FOI could be seen as acting unlawfully.

It is now apparent from two publications – one titled The Most Dangerous Man In The World by renowned investigative journalist Andrew Fowler and the other by Dr Suelette Dreyfus and Julian Assange, titled Underground – that it was Julian Assange and his companions who contacted Graham.

Although we have mentioned Julian Assange a number of times in our story, that is not because we intend, in any way, to promote his activities around the world, our only contact with Mr Assange was back when he was one of the young hackers who contacted Graham Schorer, when Graham was the official COT spokesperson, warning him they had uncovered damning information concerning our arbitrations.  That information was related to how Telstra, and others, had been acting outside the law to our detriment.  At the time, we alerted the administrator of our arbitration process to this information and the administrator then advised Graham that the hackers had been ‘apprehended’, but he would not tell Graham what he and/or the authorities had uncovered during their investigations into the information the hackers wanted to share with us.  Sometime later the same administrator was advised, by his own arbitration unit, that there had been ‘forces at work’ that had ‘derailed’ the COT arbitrations (see Chapter One Prologue page. Once again the hackers had been right.

In hindsight, had we COT cases accepted the internal Telstra emails and faxes the hackers offered, we would have won our arbitrations back in 1994. At the time, however, we suspected this contact from the hackers were either a Telstra trick or a trick by the government to catch us red-handed with ill-gotten documents, which would have ended our arbitrations. The hackers kept telling Graham that those actually conducting the arbitrations were involved in this giant conspiracy.

Hacking / Unresolved Privacy Issues

Between June 2011 and June 2012, I sent a number of letters to the Hon Robert Clark, Victorian attorney-general, regarding the prolonged, unauthorised interception of Graham Schorer’s and my faxes during and after our arbitrations. Three replies (dated 12 October 2011, 23 March 2012 and 2 July 2012) are in Main Evidence File No 10. Each response, all headed Interception of facsimiles, stipulated that the Department of Justice cannot investigate interception of faxes, even though I provided documented proof of:

  • The interception of faxes exchanged between lawyers and their clients while they were involved in Supreme Court proceedings;
  • The interception of faxes to and from the arbitrator while the other COT claimants and I were involved in a federal government-endorsed arbitration;
  • Telstra’s admission to the Australian Federal Police that Telstra intercepted my telephone conversations.

On the covering page of a joint 10-page letter dated 11 July 2011 to the Hon Robert McClelland, federal attorney-general and the Hon Robert Clark, Victorian attorney-general, I note:

“In 1994 three young computer hackers telephoned Graham Schorer, the official Spokesperson for the Casualties of Telstra (COT) in relation to their Telstra arbitrations.

  • Was Jullian Assange one of these hackers?
  • The hackers believed they had found evidence that Telstra was  acting illegally. 
  • “In other words, we were fools not to have accepted this arbitration file when it was offered to us by the hackers who conveyed to Graham Schorer a sense of the enormity of the deception and misconduct under taken [sic] by Telstra against the COT Cases.” (See Hacking – Julian Assange File No/2)

I also wrote to the Hon Robert Clark on 20 June 2012, to remind him that his office was already in receipt of a 7 July 2011 statutory declaration prepared by Graham Schorer. This statutory declaration discusses the three young computer hackers who phoned Graham during the COT arbitrations of 1994 to warn him. They had discovered that Telstra and others associated with the arbitrations were ‘acting unlawfully’ towards the COT group. Graham’s statutory declaration includes the following statements:

“After I signed the arbitration agreement on 21st April 1994 I received a phone call after business hours when I was working back late in the office. This call was to my unpublished direct number.

“The young man on the other end asked for me by name. When I had confirmed I was the named person, he stated that he and his two friends had gained internal access to Telstra’s records, internal emails, memos, faxes, etc. He stated that he did not like what they had uncovered. He suggested that I should talk to Frank Blount directly. He offered to give me his direct lines in the his [sic] Melbourne and Sydney offices…

“The caller tried to stress that it was Telstra’s conduct towards me and the other COT members that they were trying to bring to our attention.

“I queried whether he knew that Telstra had a Protective Services department, whose task was to maintain the security of the network. They laughed, and said that yes they did, as they were watching them (Telstra) looking for them (the hackers). …

“After this call, I spoke to Alan Smith about the matter. We agreed that while the offer was tempting we decided we should only obtain our arbitration documents through the designated process agreed to before we signed the agreement.” (See Hacking – Julian Assange File No/3)

What we later found out concerning the type of in-house emails that these hackers wanted to share appears to have been associated with correspondence, between Telstra, its lawyers and AUSTEL, discussing vital information that Telstra and its lawyers wanted the government to remove from their COT cases report. The only thing we COT cases have at present that resembles the type of evidence the hackers wanted to provide to us is two letters between Telstra and AUSTEL, dated 8 and 9 April 1994 (see Introduction File No/8-A to 8-C). These letters demand AUSTEL remove its true finding from its public report – stating that some 120,000 COT-type complaints had been located – and replace that figure with hundreds or more COT type complaints, which AUSTEL did by stating in the formal report: “…the number of Telecom customers experiencing COT type service difficulties and faults is substantially higher than Telecom’s original estimate of 50”  . (See Manipulating the Regulator, Chapter Three). Agreeing to this alteration, at the defendant’s request (Telstra was, after all, the defendant in our arbitrations), devalued the government report to where it was now a fabricated document being used by the arbitrator, unaware it was severely tainted. The fact that it was used as evidence in the COT arbitrations appears not to have worried AUSTEL, but it did worry the hackers to the extent of them contacting Graham.

Loreto College Ballaratt

18 August 1997: Sister Burke, Loretto College, wrote to me noting:

Dear 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.

May your venture at Bridgewater now go from strength to strength (AS 231-A)

I first met Sister Burke on 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.

Twelve months after Sister Burke’s charity camp another of the Sisters from Lorretto College, Sister Karen Donnellon, attempted unsuccessfully, to phone me to arrange another camp and finally wrote (AS 231-B)

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.

The matters discussed on absentjustice.com are said in the public interest and therefore are made in accordance with the Victorian Defamation Act 2005 Defamation-division 1 Defamation and the general law see > www.legislation.vic.gov.au/Domino/Web-Note.

Contact: naturaljusticeinternational@gmail.com for advice regarding our claims:- thank you.

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    These letters and documents were received by me after my arbitration of November 1993 to May 1995. Most of this correspondence shows that many of Australia's politicians, as well as the Telecommunication Industry Ombudsman are not refuting my claims. Some of this early documentation between April and June 1995, show that the arbitration rules (The Agreement) was not followed by the arbitrator as well as his arbitration resource unit.
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