PLEASE NOTE: this is a work in progress last edited May 2019.
It is important to remind the reader as we have on our INTRODUCTION page that various exhibits supporting our story are linked in the text: for example, FrontPage Part One File No/1, Main Evidence File No/3 or Prologue Evidence File 1-A to 1-C. Clicking on these links with your cursor will automatically open a PDF of the exhibit.
On 16 September 1994, my claim advisor, Garry Ellicott (ex-detective sergeant in the Queensland Police Force, also ex-superintendent of the National Crime Authority, was answering Telstra’s interrogatories (in writing). Mr Ellicott advised Dr Gordon Hughes (the arbitrator) I was in a terrible situation, as Telstra was demanding from me, through Dr Hughes and my arbitration process, the information I had originally provided the Australian Federal Police (AFP) under confidentiality. Dr Hughes did not demand Telstra stop using the arbitration process to shut down the AFP investigation into my complaints that Telstra was intercepting my telephone conversations and faxes without my knowledge or written consent. Below, In various pages on this website I discuss Telstra’s threat of withholding FOI documents if I continued to assist the AFP. When Telstra found out I had continued to supply FOI documents to the AFP, they stopped releasing the FOI documents I needed to support my arbitration claim until after they submitted their arbitration defence on 12 December 1994. Some 24,000 documents arrived on 24 December 1994 and, as the Commonwealth Ombudsman investigation into this late delivery of my FOI documents found, 70 per cent of those documents came without the legally required FOI schedules. More than 16,800 of those FOI documents were meaningless without a schedule detailing their relevance; I had only 13 days to address Telstra’s defence, with documents I had no way of reading. Worse: most of these documents were related to the telephone complaints of two other COT cases living in Brisbane, Queensland.
When I advised Warwick Smith, the Telecommunications Industry Ombudsman (and administrator to my arbitration) about this terrible situation, being left with only 13 days to decipher what documents belonged to me and which belonged to the two other COT cases, he said to contact Dr Hughes, the arbitrator. However, the arbitrator’s office informed me that Dr Hughes had taken his usual Christmas break, which meant the 13 days left for me to answer Telstra’s 12 December 1994 defence would be over by the time Dr Hughes returned from leave. Warwick Smith’s response to this was: do the best you can.
Proposed letter to government
I ask that you consider the following: No organisation, whether commercial or government (in this instance, the TIO office), while under allegations of fraud, collusion or gross misconduct can investigate itself:“…the law does not permit a party to an allegation to investigate himself”. (See www.heineraffair.info/main.html)
It has already been accepted, in many legal circles, that the TIO cannot investigate my claim against John Pinnock and/or his predecessor Warwick Smith
Warwick Smith (a past minister for communications in the Liberal Government) was the first Telecommunications Industry Ombudsman, a Liberal stalwart and later a recipient of the Order of Australia. In and around the last three months of 1993, while viewing the status of the complaints registered by the group known in government circles as the four COT cases (Ann Garms, Maureen Gillan, Graham Schorer and me), Warwick Smith provided Telstra senior management with confidential Liberal-National Coalition in-house privileged information concerning the four COT cases. The person Warwick Smith provided that information to was Chris von Willer, who, at that time, was under investigation by the Senate for misleading and deceptive advice he gave the Senate concerning two of the four COT cases
The in-house government-privileged information Warwick Smith provided to Chris von Willer, regarding the merit in a Senate inquiry into the COT’s claims, may well have been what prompted Telstra to pressure Warwick Smith to abandon the already signed Fast Track Settlement Proposal (FTSP) that Warwick Smith was administering.
Pages 109 to 110 of Senate Hansard, dated 26 September 1997 (see Senate – Parliament of Australia), confirms that during a Senate Estimates hearing into COT issues, the new TIO, John Pinnock, agreed that Telstra’s Mr Benjamin had not removed himself from TIO council discussions when COT arbitration matters were discussed. Ted Benjamin was also one of Telstra’s arbitration team leaders in charge of releasing FOI documents to the COT claimants. Often claimants did not receive their requested FOI material until months after officially requesting them under the FOI Act. In my case, three lots of requested documents arrived between 12 months to two years after my arbitration was over. While Warwick Smith was the TIO, Ted Benjamin also received advice as a TIO council member, concerning TIO council in-house sensitive COT-related financial material, which he then passed onto at least one senior Telstra executive.
As my webpage absentjustice.com/Telecommunication Industry Ombudsman shows, Dr Gordon Hughes (the arbitrator assigned to my arbitration) advised Warwick Smith, on 12 May 1995, that he had used an arbitration agreement he believed was grossly deficient. Dr Hughes said:
“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.”(See Open Letter File No 55-A)
The arbitrator’s own technical unit stated their findings were not complete and they required extra weeks to continue investigating my billing claims, which were still being recorded as ongoing at that time. As Chapter One in my Prologue page shows, these extra weeks were not provided by Dr Hughes and he brought down his findings while fully aware the deficiency in the arbitration agreement was the reason the technical consultants had still not finished their investigations.
Both Dr Hughes and Warwick Smith concealed this arbitration agreement deficiency from me during my designated appeal period. However, the remaining three claimants were allowed between 13 months to three years longer than I to prepare their claims and answer Telstra’s defence.
More than two hours after receiving the alarming 12 May 1995 letter from Dr Hughes, Warwick Smith released a public media statement (see Open Letter File No 55B), advising the first COT arbitration had concluded and the claimant had received natural justice.
That Dr Hughes used an arbitration agreement he labelled not credible is not mentioned in this media release. Likewise, there is no mention that, because I assisted the Australian Federal Police with its investigations into Telstra intercepting my telephone conversations and faxes (see Senate Evidence File No 31), Telstra threatened me that if I continued to assist the AFP then there would be NO further releases of FOI documents, which I needed to complete my arbitration claim. The fact that the Senate and the Commonwealth Ombudsman demanded to know why I was threatened was important enough for it to be recorded by Warwick Smith in his media release: it was not. Worse, this media release does not mention that Telstra actually carried out those threats and withheld some 24,000 FOI documents. These documents arrived very late in the process and Dr Hughes refused, in his letter of 5 May 1995, to accept two mini-reports derived from these late documents that proved my telephone problems were still not fixed (see Prologue Chapter Three, exhibit Call For Justice File No 88).
Two important issues, in particular, raise questions about Warwick Smith’s suitability to be the administrator to the COT arbitrations.
Firstly, he was the administrator of my Fast Track Settlement Proposal (FTSP), between 23 November 1993 and 21 April 1994, before the process turned into an arbitration procedure. Warwick Smith designated Grant Campbell as the person I should send my FTSP ongoing telephone fault information to in the TIO office. However, at no time did Warwick Smith alert me that Grant Campbell was a seconded Telstra employee and still on Telstra’s payroll, as absentjustice.com/Telecommunications Industry Ombudsman, Chapter Three, shows. Grant Campbell’s communications with Telstra on 9 February 1994 deliberately misled and deceived Telstra to the true state of my faxing problems, as exhibit Open Letter File No/56-B to 56-H shows.
Secondly, three computer hackers contacted fellow COT case Graham Schorer to warn him that Telstra and others involved in our arbitrations were acting unlawfully towards us (see absentjustice.com/INTRODUCTION). The hackers offered us internal Telstra emails as proof, but we were reluctant to accept this information. We were, of course, concerned and advised Warwick Smith of what the hackers told Graham. Did he transparently investigate whether Telstra or other parties involved in our arbitrations were, in fact, behaving as the hackers stated? Neither Graham nor I were advised of the outcome of any such investigation – not even after Warwick Smith’s own arbitration consultant alerted him, in a letter dated 18 April 1995 and copied to the arbitrator and TIO special counsel, that there were “forces at work” derailing the arbitrations – just as the hackers advised. This letter, available at my Prologue page, Chapter One, was not provided to me by Warwick Smith – neither during my arbitration, which would have given me good grounds to amend my claim as these “forces” severely hindered the preparation of my claim, nor during the designated appeal period after the arbitrator handed down his findings. This letter would have clearly assisted me in appealing the conduct of those administering the process.
Anyone reading Chapters Six to Seven in absentjustice.com Arbitrator Part Two and Chapters One to Seven in the Telecommunication Industry Ombudsman link will conclude that Warwick Smith did not conduct his role, as administrator of my FTSP process and later my FTAP arbitration, in a manner befitting a government-endorsed procedure. The many exhibits supporting statements made in these chapters clearly prove my claims. John Pinnock advised both the government and a sitting Senate Estimates committee that the arbitrator had no control over the process because it was conducted entirely outside of arbitration procedures (see page 99 in the following >COMMONWEALTH OF AUSTRALIA – Parliament of Australia link). No one, to date, within the TIO office, has ever provided an explanation as to why the arbitrator had no control over the process or why it was conducted entirely outside the ambit of the arbitration procedures.
The fact that Warwick Smith allowed this to happen as TIO is just another example of why the TIO cannot investigate my claims against Warwick Smith and the second TIO John Pinnock.
On 24 January 1994, four months before the arbitration agreements were signed, Frank Shelton, the TIO special counsel appointed by Warwick Smith, wrote to Dr Hughes stating:
“We discussed whether or not the Procedure should come within the ambit of the Victorian Commercial Arbitration Act 1984. We decided that it should. Relevant considerations were that under the Commercial Arbitration Act.” (See Open Letter File No/48-A)
Had the TIO office advised my legal counsel, in February 1996 and again in August 1997, that my arbitration was conducted entirely outside of the agreed ambit of the arbitration procedures and/or why and when the arbitrator lost control over my arbitration, we could have taken that official advice to appeal against Dr Hughes award.
In summary: It would be totally unjust to send my arbitration matters to the TIO office. The TIO cannot investigate itself, but, regardless, over the past 20 years, the TIO office’s response to me is that I could have appealed my arbitration, but did not. This is disingenuous because, when Mr Pinnock became aware I was about to appeal my award and needed TIO documentation to do so, he wrote:
“I refer to your letter of 31 December 1996 in which you seek to access to [sic] various correspondence held by the TIO concerning the Fast Track Arbitration Procedure.
“The arbitration of your claim was completed when an award was made in your favour more than eighteen months ago and my role as Administrator is over.
“I do not propose to provide you with copies of any documents held by this office.” (Open Letter File No 57-C)
I could not appeal without the vital documents the TIO held and the TIO office is fully aware that appellants will lose if appealing without the right documents. Also, Mr Pinnock’s statement that “an award was made in your favour” is incorrect. Dr Hughes’ award was a payment of less than 11 per cent of the amount two separate arbitration financial experts stated I had lost. The award also did NOT make a finding, whatsoever, on the ongoing telephone problems that were still plaguing my business nor the arbitrator’s refusal to investigate his own technical consultants’ advice that they had still not completed their assessment of those ongoing telephone-billing problems, which Telstra was fully aware were still affecting the viability of my business. (See Prologue, Chapter One, and Arbitrator/Part Two, Chapters Nine to Ten).
As we show inOpen letter File No/46-K, on 3 October 1995, the government communications regulator advised Mr Pinnock that Telstra had still not investigated my 008/1800 billing claim, originally raised during my 1994 arbitration process. This didn’t stop Mr Pinnock from continuing to write to the government The Hon David Hawker MP, between 1995 to 2005, claiming the billing issues I raised in my arbitration were addressed in full by the arbitrator. It is most important to view Open letter File No/46-L, as it shows AUSTEL and Telstra addressed my arbitration billing issues outside the legal arena of my arbitration, without an arbitrator being present and without me being allowed my legal right of reply – even though Telstra used a known-false witness statement attached to their 16 October 1995 submission. I doubt AUSTEL knew, when it covertly accepted Open letter File No/46-L, that my arbitration consultant Garry Ellicott, ex-National Crime Authority detective sergeant and decorated senior detective sergeant in the Queensland police force, had shown this Telstra witness statement was full of inaccuracies.
My arbitration process cost me well over $200,000 in professional fees in order to participate, yet the defendant (Telstra) and AUSTEL, the government communications regulator, and the TIO allowed my arbitration claim documents to be covertly addressed, thereby disallowing me my legal right of reply under the rules of the official arbitration agreement. In arbitrations conducted in the Western world, claimants are allowed the right of reply. In my case, however, the TIO and government ignored this right.
Please advise where I can have my TIO-administered arbitration issues investigated, other than the TIO office, which, as I have shown in the first paragraph one above, cannot investigate itself. If you read Chapters One to Seven in my absentjustice.com/Telecommunication Industry Ombudsman page, and Chapters One to Five in my Prologue page, you will see that I have always had valid claims against Warwick Smith and John Pinnock.
When accessing an individual exhibit mentioned in our 1 to 33 TIO Exhibits files (see below) all the reader has to do is click onto TIO Exhibits 1 to 33 and work their way through the 33 exhibits in that file until they reach the one they wish to view.
It is also important to note that below I refer to myself as either Alan or Alan Smith. The exhibits discussed in the TIO Exhibits 1 to 33 file, have all been provided to the Australian government, Australian Federal Police and the TIO office. No one has ever refuted those exhibits. I also supplied the TIO office with a number of reports since 1996, so that the TIO could address its past unethical conduct towards me and the other COT cases, but it has still not done so. I have prepared this mini report to support my claim that the TIO office should not have continued to administer the COT arbitrations once it was disclosed the TIO board and council had a massive conflict of interest.
The statements in the TIO Exhibits 1 to 33 file and various links attached in the actual text is only some of the proof that a number of senior Telstra executives were on the TIO Board or Council at the same time as they were heavily involved in the COT arbitrations. Some of these exhibits also prove that these particular Telstra executives (Jim Holmes, Chris Vonwiller and Ted Benjamin), who all held positions of trust within the TIO’s office, clearly knew that Telstra had misled and deceived some of the COT claimants regarding their ongoing telephone problems and that at least one of them (while sitting as a TIO Board member) also misled the Senate Estimates Committee regarding COT matters.
The exhibits also show that, both before the start of, and throughout the Fast Track Settlement Proposal (FTSP) and the Fast Track Arbitration Procedure (FTAP), these three Telstra executives were still allowed to maintain their positions on the TIO Board and Council, even though a number of the following exhibit suggest all three were accomplices in some way by misleading interested parties involved in investigating the telephone problems still being experienced by the COT Cases. These senior Telstra executives should not have been allowed to remain on the TIO Board and/or Council while they were still involved with the claimants’ ongoing telephone problems, either prior or during the FTSP and FTAP. Ted Benjamin was not only a member of the TIO Council throughout the COT arbitrations, he was also, at the same time, Telstra’s arbitration liaison officer in charge of deciding which FOI documents the claimants would receive and which would be withheld.
From the exhibits shown below, it would surely be fair to assume that some of the FOI documents requested by the COT Cases, in relation to their ongoing telephone problems, which the Senate Estimates Committee hearing of 1997/98, concluded were withheld from the COT Cases, would have referred to Mr Benjamin, Mr Vonwiller and/or Mr Holmes. This would mean that these three would have clear reasons for deciding to withhold those documents from the arbitration process.
2 November 1990: On page 2 of Telstra FOI document folio C04550, Trevor Hill, then Manager of Telstra’s Legal Support Services, discusses the problems and phone faults that had been affecting Graham Schorer’s business, Golden Messenger, stating:
“The Australian Government Solicitor, on behalf of Telecom, has written to the Solicitors acting for Golden Messenger seeking their undertaking not to disclose to their client or others the contents of the report on the North Melbourne exchange,”
Graham has placed on record he was never advised at any time by his lawyers they had received this letter from the AGS. Had he known he would not have accepted the $200.000.00 settlement paid into the Federal Court by Telstra in April 1993
9 June 1993: This letter from John MacMahon, AUSTEL’s General Manager Consumer Affairs to Telstra’s Director Regulatory is relevant to Exhibit 5 below concerning a briefcase inadvertently left at Alan Smith’s business on 3rd June 1993, by Telstra Network Investigators noting:
“Further he claims that Telecom documents contain network investigation findings which are distinctly different from the advice which Telecom has given to the customers concerned. In summary, these allegations, if true, would suggest that in the context of the settlement Mr Smith was provided with a misleading description of the situation as the bases for making his decision. They would also suggest that the complainants identified in the folders have knowingly been provided with inaccurate information. I ask for your urgent comment on these allegations. You are asked to immediately provide AUSTEL with a copy of all the documents which was apparently inadvertently left at Mr Smith’s business.
16 June 1993: This Telstra internal email Subject COT maters (copied to Telstra’s Corporate Secretary Jim Holmes, suggest that Mr Holmes had given journalist Jason Cameron some of Telstra’s corporate pearls! See Exhibit 2 above.
1993/1994: This document has been taken from the first TIO Annual Report. It confirms the appointment of Telstra’s Chris Vonwiller and Jim Homes to the TIO Board during June and July 1993, and Ted Benjamin to the TIO Council on 22nd June 1993, and the replacement of Jim Holmes by Graeme Ward (Telstra’s Group Director, Regulatory and External Affairs) on 28th August 1994. In other words, four of Telstra’s most senior executives were members of the TIO Board and Council for a long period during the COT Cases arbitrations. Ted Benjamin served his TIO position from June 1993 at least to September 1997.
27 August 1993: Telstra’s Jim Holmes writes to Alan Smith concerning the network files see Exhibit 2, which were inadvertently left in a briefcase at Alan Smith’s premise on 3rd June 1993. In this letter Mr Holmes notes:
“Although there is nothing in these documents to cause Telecom any concern in respect of your case, the documents remain Telecom’s property and there are confidential to us. I would also ask that you do not make this material available to anyone else.”
31 August 1993: This Telstra internal email copied to Ted Benjamin, Jim Holmes and Trevor Hill notes:
“An amended and abridged version related to Alan Smith alone was faxed to the Hinch Program following discussions with Ted Benjamin, Don Panel and Dennis Hambleton”.
The significance of attaching this exhibit is that it confirms Ted Benjamin, Jim Holmes and Trevor Hill, had been involved in the COT case matter for years therefore, they should never have been allowed to be present during any TIO Board/Council meetings during the period the COT cases were in arbitration.
2 September 1993: These three Senate Estimate Committee (Hansard pages 259, 261, and 263) suggests that Chris Vonwiller, misled the Senate Estimates Committee (while a TIO Board Member) regarding how many Fortitude Valley Exchange customer complaints had been received [p261] notes:
“There has been a small number – I think two or three only – that have presented difficulties to us”. Senator Ron Boswell [p263] noted: “We have now heard from Mr Von Willer that the Valley exchange is just like every other exchange in Australia. We have tabled a document from Telecom saying it is the greatest embarrassment to Australia, and Mr Von Willer comes in here and tells us there is nothing wrong with Telecom. I have at least 400 people that have not been able to get Telecom service.”
10 September 1993: Telstra’s Trevor Hill, then Manager of Co-ordination & Performance, sent a fax to Telstra’s Network Operations (FOI folio 404955), stating:
“MacMahon embarrassed, apologetic etc re stuff-up at Schorer’s. I indicated Telecom’s intention to formally confirm with Austel that Schorer’s telephone services 329 7255 and 329 7355 were now out of play. He agreed. I will progress via Jim Holmes.”
15 September / 14 October 1993: These two Telstra documents tiled CoT Management Team confirm Jim Holmes, Chris Vonwiller, Ted Benjamin and Trevor Hill were all heavily involved in the COT case matters before the Fast Track Settlement Proposal FTSP / Fast Track Arbitration Procedure FTAP even began. On page 5 of the October minutes FOI folio A06837 it is noted: “Jim Holmes to respond to report that Chris Vonwiller lied to the Senate Estimates Committee,” this statement coincides with Senator Boswell’s statement concerning Mr Vonwiller see Exhibit 7.
FOI documents of importance
The following documents obtained under FOI (see My Story Evidence File 17-A to 17-K) show not only did members of the TIO Council and TIO Board know that the Bell Canada International testing report on the COT Cases exchanges should be cleansed (see My Story Evidence File 17-A B) the various other exhibits in this file once again shows the TIO Board and Council should not have allowed Telstra executives to be present when the COT FTSP and FTAP processes were discussed.
Why has this conflict of interest issue been investigated impartially by the Australian government?
10 November 1993: It could be said that the advice Warwick Smith gave to Telstra, in confidence, (that the Party room was not very keen on holding an enquiry) could have later prompted Telstra to have the FTSP non-legalistic process turned into their legalistic Preferred Rules of Arbitration, because they knew there was no longer any threat of a Senate Enquiry.
Details of information disclosed by Warwick Smith is given in Telstra FOI document A05993. This was not made available to Alan or Graham prior to signing the FTSP. It is marked CONFIDENTIAL Subject – Warwick Smith – COT Cases. In this Telstra email addressed to Telstra’s Corporate Secretary Jim Holmes, copied to Frank Blount Telstra’s CEO, author Chris Vonwilla states
“Warwick Smith contacted me in confidence to brief me on discussions he had in the last two days with a senior member of the parliamentary National Party in relation to Senator Boswell’s call for a Senate Inquiry into COT Cases.
Advice from Warwick is:
- Boswell has not yet taken the trouble to raise the COT Cases issue in the Party Room.
- Any proposal to call for a Senate inquiry would require, firstly, endorsement in the Party Room and, secondly approval by Shadow Cabinet. …
- The intermediary will raise the matter with Boswell, and suggest that Boswell discuss the issue with Warwick Smith. Warwick sees no merit in a Senate Inquiry.
- He has undertaken to keep me informed, and confirmed his view that Senator Alston will not be pressing a Senate Inquiry, at least until after the AUSTEL report is tabled
- Could you please protect this information as confidential?’
It could be said that the advice Warwick Smith gave to Telstra, in confidence, (that the Party room was not very keen on holding an enquiry) could have later prompted Telstra to have the FTSP non-legalistic process turned into their legalistic Preferred Rules of Arbitration, because they knew there was no longer any threat of a Senate Enquiry.”
18 November 1993 – 23 November 1993: Telstra’s Corporate Secretary (TIO Board Member) wrote to Mr Davey pointing out that:
… only the COT four are to be commercially assessed by an assessor.
‘For the sake of convenience I have enclosed an amended copy of the Fast Track Proposal which includes all amendments.
To facilitate its acceptance by all or any of the COT members I have signed it on behalf of the company. Please note that the offer of settlement by this means is open for acceptance until 5 pm Tuesday 23 November 1993 at which time it will lapse and be replaced by the arbitration process we expect to apply to all carriers following Austel recommendations flowing from this and other reviews’. (AS 1171)
In effect, the four COT members were being given special treatment in terms of having a commercial assessment rather than the arbitration process. By this time AUSTEL was dealing with another dozen or so COT cases. The four were being ‘rewarded’ for the efforts they had made over such a long period of suffering business losses. On the other hand, the four COT Cases were also being pressured by this rush — they were told they would lose the option for a commercial assessment if they didn’t sign by 23 November, a mere five days away. The problem was, they were reliant on the supporting documents they needed for their claims. For these they were dependent on Telstra’s good will, and their track record gave us no confidence in that. They approached Robin Davey AUSTEL’s Chairman, who in return approached Warwick Smith (TIO) who was to administer the process and Jim Holmes, Telstra Corporate Secretary who had signed the FTSP agreement on 18 November 1994. Robin Davey advised the COT’s to sign the agreement having been assured by both Warwick Smith and Jim Homes that the documents needed for that process would be supplied under the FOI Act 1984.
As a point of interest: on the 26 September 1997, after most of the arbitrations had been concluded the new TIO (and administrator of the arbitrations) John Pinnock advised a sitting Senate Estimates Committee that the COT Cases had been assured prior to their arbitrations that they would get their documents under FOI (see page 99 in the following > COMMONWEALTH OF AUSTRALIA – Parliament of Australia link).
Alan Smith even travelled to AUSTEL’s city office in Melbourne to officially provided Robin Davey, Chairman of AUSTEL his signed copy of this FTSP agreement.
Alan included a letter with the agreement clearly putting his expectations of the process:
“I would not sign this agreement if I thought it prevented me from continuing my efforts to have a satisfactory service for my business. It is a clear understanding that nothing in this agreement prevents me from continuing to seek a satisfactory telephone service”.
Despite nagging doubts, we felt a great sense of relief once we had sent off the agreement. The pressure on all four of us had been immense with TV and newspaper interviews as well as our ongoing canvassing of the Senate. And I had never stopped hammering for change in rural telephone services, at least in Victoria.
In December 1993 David Hawker MP, my local federal member, wrote to congratulate me for my ‘persistence to bring about improvements to Telecom’s country services’ and regretted ‘that it was at such a high personal cost.’
This was very affirming, as was a letter from the Hon. David Beddall MP, Minister for Communications in the Labor Government, which said, in part:
‘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 is of great concern to me and a full investigation of the facts is clearly warranted’.
A number of other small businesses in rural Australia had begun to write to me regarding their experiences of poor service from Telstra: problems with their phones and various billing issues. I contacted Telstra management myself on a number of occasions, putting on record my requests for these matters to be resolved. I believe this was a responsible reaction to the letters I was receiving.
PLEASE NOTE: the dates of the following emails are dated one month before the four COT Cases signed their FTSP on 23 November 1993.
The two attached emails dated 25 October 1993 (FOI folios A06537 and A01554), from Telstra’s Don Pinel to Telstra’s Corporate Secretary, Jim Holmes, and the third Telstra email dated 27 October 1993 FOI folio A01554, also from Don Pinel to Jim Holmes (see TIO Evidence File No 7-A to 7-C), are so significant. It is important to first understand that there appears to be a number of arbitration officials within the Establishment who were aware that Telstra knew, in advance, that they would not be able to supply any of their historic technical data (commonly referred to as Leopard fault data) before the COTs went into arbitration. What is being said is that most of the COT Cases believe, if Australia’s Senators had known, before the COTs signed for their arbitrations, that Telstra would never be able to supply the FOI documents requested by the claimants regarding this very important historic faults data, then they would not have allowed the COTs to enter into a process that was so obviously going to be totally undemocratic.
Telstra’s Corporate Secretary at the time, Jim Holmes was advised in all three emails (A01554, A06507 and A06508) that the Leopard Fault data (which was the technical data that Telstra kept regarding exchange faults) had been destroyed once it was more than twelve months old. Mr Holmes was, at the same time as being Telstra’s Corporate Secretary, also a member of the TIO Board when the first four COT claimants (Gillam, Garms, Schorer, and Smith) formally signed their arbitration agreements, but it seems that Mr Holmes did not alert the Government to this destruction of records, even though, after all, the Government had endorsed the arbitration agreements. Have Telstra, and the Australian government ever stopped to consider what followed, once Telstra had managed to keep this serious matter secret? Have Telstra and the Australian Government ever considered the financial cost to each claimant (let alone the psychological stress) as they tried to access information that Telstra (and as it now appears, the TIO office as well ) knew had already been destroyed, years before the COT’s went into arbitration? The costs that accumulated for each and every one of the COT cases ran into hundreds of thousands of dollars as they struggled to access this non-existence fault data (and other Telstra data) in support of their arbitration claims. Has the Senate ever considered the cost, not just in dollars but also in the eighteen months that various Senators spent between September 1997 and March 1999, assisting the COT Cases in their various attempts to access technical documents, when Telstra knew they had been destroyed years before any of the COT Cases went into arbitration?
The fact that Telstra’s Corporate Secretary, Jim Holmes, knew about this destruction of so-called ‘old’ data, for a fact, as emails A01554, A06507 and A06508 (see TIO Evidence File No 7-A to 7-C) show, and yet, on 18 November 1993, still he chose to sign all four FTSP agreements for the first COT Cases, while he was also a TIO Board member, and therefore attended the TIO monthly Board meetings, even when COT Cases arbitration issues were discussed, but he never passed on to the TIO exactly what he knew concerning these destroyed documents that the claimants were trying to access, has further made the COT arbitrations a mockery of the Australian legal system.
Have the current ACMA Board, the TIO Board and the TIO Council fully understood how much it has cost tax payers for Telstra to defend the COT Cases claim when Telstra was a fully-Government-owned corporation? The cost to the taxpayer included the hiring of the TIO-appointed arbitrator; the TIO-appointed Special Counsel; and the TIO-appointed Resource Unit – and all this money was spent as part of a process where the Government owned telecommunications carrier had already secretly withheld from the government who owned them and the Senate that the claimants would be wasting hundreds of thousands of dollars (and in most of the cases) borrowed money in their attempt to gain access to documents members of the TIO Board (the administrators of the arbitrations) and Telstra new had already been destroyed.
When Jim Holmes did not ensure the TIO board was notified that the COT cases may have problems trying to prove their historic phone complaints because Telstra had destroyed that data, he was partly responsible for the COT cases racking up thousands of dollars in wasted arbitration fees, including paying technical consultants for advice on what historic data was needed to support various claims, when that data no longer existed.
19 November 1993: This Telstra internal Memo Subject: Media Plan COT Cases to Chris Vonwiller, Jim Holmes and other Telstra executives author Ted Benjamin notes:
Separation of the individual Cot matters from the general findings of the reports Emphasis on the action components rather than the criticism in the reports
Regarding item 1), strenuous efforts should be made to get AUSTEL to put out a media release IF the Cot four accept the arbitration proposal. If they do not accept the proposal then, effort must go towards getting a formal (written?) endorsement of our proposal by AUSTEL. With the cot four either committed to arbitration or refusing an AUSTEL – endorsed proposal, they are more effectively separated from the issues of the reports than they would otherwise be and any negative comments from them would be made in the context of their refusal to participate in a generous arbitration process”.
30 November 1993: This Telstra internal memo FOI document folio D01248, from Ted Benjamin, Telstra’s Group Manager – Customer Affairs and TIO Council Member writes to Ian Campbell, Customer Projects Executive Office. Subject: TIO AND COT. This was written seven days after Graham had signed the TIO-administered Fast Track Settlement Proposal (FTSP). In this memo Mr Benjamin states
“At today’s Council Meeting the TIO reported on his involvement with the COT settlement processes. It was agreed that any financial contributions made by Telecom to the Cot arbitration process was not a matter for Council but was a private matter between Telecom, AUSTEL and the TIO. I hope you agree with this.
At the bottom of this memo Ian Campbell has added a hand-written comment
Don Pinel. – Seems ok to me when I spoke to Warwick Smith I suggested that at least for the first group etc etc”.
Senate Hansard information dated 26th September 1997 (GS 124-b) confirms that:
- Ted Benjamin, Telstra’s main arbitration defence liaison officer in Graham’ arbitration, was also a member of the TIO Council; and
- During a Senate hearing into COT issues, the then-new TIO, John Pinnock, agreed that Mr Benjamin had not removed himself from Council discussions of COT matters.
Author Note (1)
Open Letter File No/56-A to 56-D shows Telstra’s Grant Campbell was associated with my settlement/arbitration in the very early days. This facsimile cover sheet (File No/56-A) from Mr Campbell to Warwick Smith concerning Allan [sic] Smith – Cape Bridgewater Holiday Camp, and the expression of interest by Ferrier Hodgson, discusses my ongoing faxing problems.
When these documents came to light, they confirmed Grant Campbell was officially signing off correspondence on behalf of Warwick Smith, including official FTSP correspondence.
Neither Warwick Smith, nor anyone from the TIO’s office, ever informed the COT Cases that Grant Campbell was temporarily seconded from Telstra to Warwick Smith’s office, where the TIO gave him the power to scrutinise COT claim material. And, without any checks by anyone, including Dr Gordon Hughes (then appointed assessor) or Ferrier Hodgson Corporate Advisory (the resource unit). Like Telstra council and board members Ted Benjamin, Chris Vonwiller and Jim Holmes, Grant Campbell had free range at the TIO office and was allowed to formally classify COT Case ongoing telephone and fax problems as ‘new’ problems and therefore not connected to my FTSP claim, despite Warwick Smith and Mr Campbell being fully aware, at the time, in Alan Smith’s case, that this was not the case.
Open Letter File No/56-E to 56-G record Alan Smith and Graham Schorer had an ongoing telephone and faxing problems from at least October 1993. These documents were supplied to Warwick Smith as the official administrator, on 27 January 1994, to forward to Dr Gordon Hughes, Mr Peter Bartlett and Mr John Rundell. An interim claim dated 27 January 1994 is available at Open letter File No/46-A
Alan Smith continues to demand answers as to why Dr Hughes and John Rundell never addressed this first part of Alan’s FTSP claim and, as of 2019, he has not received advice as to why it was not discussed in the arbitrator’s written findings. Are we to presume that, like many of Alan’s unaddressed claim documents, this information never reached the assessor/arbitrator because Telstra’s Grant Campbell and the arbitration resource unit had first access to which documents would be submitted to the arbitrator (in a secret deal arrangement entered into by Telstra, Warwick Smith and the arbitration resource unit) see below?
Alan Smith was never told by Warwick Smith that Grant Campbell was seconded from Telstra during my FTSP: he believed Mr Campbell was a TIO employee. Alan did not know that, when Alan presented him with various 008/1800 billing FTSP claim exhibits, proving Telstra had a national network 008/1800 billing problem, he was helping the defence and at the same time, severely damaging his own claim.
Documents which Alan has since provided to the government and the TIO office show that, after Mr Campbell returned to Telstra, he began addressing the same 008/1800 billing problems he previously assessed in connection to Alan’s case while wearing his TIO hat, only now he was making those assessments while wearing his Telstra hat in relation to another COT claimant from Brisbane, Ken Ivory Queensland.
To have allowed the defendant access to the opposing side’s claim material, before the claimant decided which information to submit to the assessor and/or arbitrator and which to keep back in order to answer the defendant’s defence, was highly undemocratic conduct: how can a Western democracy allow this to happen?
In most Western democracies, if such conduct during a litigation process is brought to the attention of the authorities, then those responsible for that conduct and those who allowed it to flourish, are held accountable for the damage they caused. The TIO’s office and Telstra have never assisted Alan Smith to resolve this issue, and this confirms what Alan say’s on absentjustice.com: there is one law in Australia for the bureaucrats and another for the man on the street. Grant Campbell signed a letter to Telstra, dated 9 February 1994, while wearing his TIO hat and on behalf of Warwick Smith. Regarding Alan’s loss of fax capacity, he states:
“I spoke with Alan Smith on 9th instant following on the 8th instant [sic].
“He has agreed that this is a new matter and whilst it may be indicating some ongoing problems, it is not a matter that relates directly to the preparation of his material to be presented to the Assessor.” (See Open Letter File No/56-B)
This comment however does not correlate with the many problems Alan had prior to 1994, or continued to experience and record, throughout his FTSP, nor the 31 January 1994 account for Alan’s dedicated fax line that he provided to Grant Campbell. And, as far as Mr Campbell stating that Alan Smith “agreed that this is a new matter” and that “it is not a matter that relates directly to the preparation of [my] material to be presented to the Assessor”, this was a blatant lie. Alan Smith asked Mr Campbell to ensure Warwick Smith was supplied with all of this FTSP evidence confirming numerous people, including Alan’s FTSP accountant and lawyer (see Open Letter File No/56-D to E), were still unable to send faxes to assist Alan with the preparation of his claim. Alan has grave doubts as to whether that faxing evidence was provided to Warwick Smith, who, had he received it, would have been duty bound to provide it to Dr Hughes. The fact that Alan’s records of these faxing problems, as well as his 008/1800 evidence material, were not supplied back to Alan after his arbitration was finalised, when the arbitrator was duty bound to return evidence under clause 6 of the arbitration agreement, suggests Grant Campbell never forwarded Alan’s FTSP claim to Warwick Smith.
3 March 1994: This Telstra internal email (copied to Chris Vonwiller during the time Mr Vonviller was on the TIO Board) discusses a number of COT arbitration issues and includes the comment: “My course therefore is to force Gordon Hughes to rule on our preferred rules of arbitration”. The rules referred to are the same Telstra “Preferred Rules of Arbitration” that the TIO’s office secretly used for the COT arbitrations while, at the same time, telling the claimants that the rules they were about to sign had been drawn up by the arbitrator and the TIO’s Special Counsel. Because Mr Vonwiller was a member of the TIO Board when he became aware that the arbitrator was being forced to use Telstra’s “Preferred Rules of Arbitration”, he had a clear duty of care, as a representative of the TIO’s office, to report the pressure being exerted on the arbitrator, but no-one from either the TIO Board or the TIO Council exposed this serious matter at any time.
22 March 1994: Confirmation of a meeting attended by Steve Black (Telstra), David Krasnostein (Telstra’s General Counsel), Simon Chalmers (Freehills), Peter Bartlett, Dr Hughes (arbitrator), Warwick Smith (TIO) and the TIO’s secretary, Jenny Henright. The meeting discussed the Fast Track Arbitration Procedure (FTAP) without any COT claimants or their representatives being present. The COT cases did not find out about this meeting until 1998. These minutes therefore suggest that an unhealthy relationship between the defendants (Telstra) the TIO, TIO Special Counsel and the arbitrator had blossomed before the claimants had even signed the agreement.
Authors Note (2)
Points 4 and 5
The 22 March 1994 transcripts of a clandestine gathering, where the COT cases were not represented (see Open letter File No 54-A), shows Telstra’s Mr Chalmers, the author of the minutes, has left out points 4 and 5. Point 6 follows point 3. Where are points 4 and 5?
In attendance at this clandestine meeting were Telstra’s arbitration liaison officer, Steve Black; Telstra’s general counsel, David Krasnostein; Telstra’s lawyer from Freehill Hollingdale & Page, Simon Chalmers; TIO special counsel, Peter Bartlett; arbitrator, Gordon Hughes; and TIO Warwick Smith with his secretary Jenny Henright. Except Jenny Henright, all were lawyers and therefore all knew this was an illegal gathering. What was so important about this meeting that only the arbitrator and defence attended it?
The missing discussion material or questions raised at points 4 and 5 may well be why the parties present agreed to Telstra lawyers drafting the agreement, instead of the independent arbitration agreement the government and claimants were assured would be used. It could also be where Telstra and arbitrator Dr Hughes agreed Telstra would allow the arbitration resource unit first access to all arbitration procedural material (see Arbitrator Part Two Chapter Seven). This allowed the arbitration resource unit to decide which documents Dr Hughes and the claimants would be allowed to see, and which would be discarded. Telstra’s Steve Black wrote to Warwick Smith on 11 July 1994 acknowledging the resource unit would be allowed to vet which documents Dr Hughes would see and which he would not (see Prologue Evidence File No 7). The arbitration resource unit, Ferrier Hodgson Corporate Advisory, admitted, in writing, to Dr Hughes that they concealed at least four relevant billing claim documents from the arbitration process (see Open letter File No/45-H). This is discussed more fully below.
Points 4 and 5 in the minutes of this clandestine meeting could be linked to the arbitrator and his arbitration resource unit allowing for the more adverse findings against Telstra to be covertly addressed outside the legal arena of the COT arbitration process. If the addressing of non-addressed arbitration issues had nothing to do with points 4 and 5, then what was so detrimental to the arbitration process that these points were excluded from these minutes? What information was exposed in those two points that Telstra’s lawyers thought it necessary to hide, in case this document, Open letter File No 54-A, ever surfaced, as it has?
Why weren’t the COT cases or their lawyers advised of this meeting? The claimants will never know what was concealed from the COT cases during this clandestine gathering. Dr Gordon Hughes should have never allowed this secret meeting to take place without the COT cases being represented.
This clandestine meeting also covered how to protect – to exonerate – the arbitrator’s consultants from incurring any liability for negligence or being sued. Of course, this was to the detriment to the COTs and their legal right to a have recourse over the arbitration consultants if the resource unit was negligent in their duties. The arbitration resource unit was negligent during Alan’s arbitration process and he was unable to hold them to account for those actions, due to those clauses being removed from my arbitration agreement.
Changes to the arbitration agreement were discussed as Telstra’s transcript of this meeting notes at point six:
“Mr Bartlett stated that he was unhappy that Telecom did not appear prepared to allow his firm an exclusion from liability. …
“Mr Smith [TIO Warwick Smith] stated that he thought it was reasonable for the advisers to incur some liability, and that the only matter left to be negotiated on this issue was the quantum of the liability caps.
“Mr Black said that he thought the liability caps proposed by Telecom in the amended rules were already reasonable.” (See Open letter File No 54-A)
This is a very serious issue that should have been addressed in 1995, when this was discovered. An investigation 20 years ago would have uncovered that Dr Hughes and Warwick Smith (TIO) used Telstra’s proposed arbitration agreement as the base document for the COT arbitration agreement, rather than using an agreement drafted totally independently of Telstra, as the government (who endorsed the first four arbitrations) and the COT cases’ lawyers were promised. An investigation in 1995 would have also uncovered Dr Hughes’ 12 May 1995 letter to Warwick Smith, condemning the Telstra-based agreement as not a credible document to use in the arbitrations, although he used it in Alan Smith’s arbitration (see Prologue Chapter Four).
Upon reading Open letter File No 54-A and the following Prologue page, you will realise – as many others have – as arbitrator Dr Gordon Hughes should never have secretly met with Telstra (the defendants), prior to arbitration, to discuss what rules in the arbitration agreement would be removed and which would remain.
On the actual day Ann Garms, Graham Schorer and Alan Smith signed their arbitration agreements, they found liability clauses 25 and 26 removed after their lawyers had assessed the agreements (see Open letter File No 54-D). They were told if they did not accept these late changes, then there would be NO arbitration. With their banks declaring they were ready to take over their assets if they could not show settlements were imminent, they had no option but to accept the resource unit and TIO special counsel exoneration from all liability.
The TIO has, to date, declined to explain what circumstances occurred to change this. Who pressured the TIO to allow the advisors to be exonerated from all liability in relation to those three arbitrations? Why would the TIO special counsel be “unhappy that Telecom did not appear prepared to allow his firm and exclusion from liability”?
Why it did not occur to neither the TIO nor the arbitrator that, once the directions regarding liability were removed, this would allow complacency to creep through the arbitration process? This is exactly what absentjustice.com pages show happened.
Had COT cases been represented at this hearing (as they were legally entitled to be), they would have been fully aware prior to 21 April 1994, the day they signed this document, that their rights to fair arbitrations were going to be violated.
12 April 1994: On page 2 of this letter from Dr Hughes (the arbitrator) to Peter Bartlett (the TIO’s Special Counsel) Dr Hughes discusses altering the arbitration agreement, either before the claimants signed it or after, noting:
“perhaps the agreement should be executed in the current form and then agreement sought from the parties to vary the terms to take into account ant proposals by Ferrier Hodgson or DMR which you agree are reasonable”.
We can now prove that the agreement WAS altered – before Graham Schorer and Alan Smith signed it – and without their knowledge. Since the agreement was secretly drawn up by Telstra in the first place, the secret changes became a deception upon a deception. This is, in the worst possible way, a clear case of misleading and deceptive conduct, exacerbated by copies of Dr Hughes’ letter being sent to J. Selak and J Rundell (both from Ferrier Hodgson) and Warwick Smith (the TIO).
The fact that this letter is also a Telstra FOI document folio A59256/7 proves that Telstra knew about these secret alterations sometime before or during the arbitration process.
A comparison of Exhibits 14 and 15 reveals that a very unhealthy relationship existed between the TIO, the TIO’s Special Counsel, the TIO-appointed Resource Unit (Ferrier Hodgson), Dr Hughes (the arbitrator), and Telstra (the defendants), even before the beginning of the FTAP. And the appointment of three of Telstra’s most senior executives to the TIO Board and/or Council (which continued during the COT arbitrations) produced a second unhealthy relationship – the COT claimants never had a chance.
Telstra’s Arbitration Liaison Officer Steve Black wrote to Warwick Smith the TIO on 11 July 1994 (see My Story Evidence File/16) stating:
“Telecom will also make available to the arbitrator a summarised list of information which is available, some of which may be relevant to the arbitration. This information will be available for the resource unit to peruse. If the resource unit forms the view that this information should be provided to the arbitrator, then Telecom would accede to this request”.
The statement in Telstra’s letter “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 that the TIO-appointed resource unit had been 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 on to the arbitrator or other parties. This particular secret deal has been linked to further clandestine dealings and is discussed above in Exhibit 14. Could this secret deal be directly related to the very important 24 January 1995 arbitration letter which is discussed below under Telecommunication Industry Ombudsman
The Telecommunications Industry Ombudsman (TIO) is an Australian National Telecommunications Industry Regulator, which seems like a good idea except that this Ombudsman is funded by the telecommunication carriers themselves, which means that it can hardly be called impartial, on any level, but particularly when they are involved in an arbitration, and their wages are actually paid by the defendants in that arbitration! As we have shown below and elsewhere on absentjustice.com that, during the COT arbitrations, the TIO allowed Telstra employees (the defendants in the arbitration) to be present at all TIO board meetings, and all monthly TIO council meetings, including any that involved discussions about COT arbitration issues. So were any of the COTs (the complainants in this legalistic arbitration process) allowed to attend those same meetings, or even invited to attend those meetings? Of course not! And did anyone in any position of power ever attempt to put the complainants on the same footing as the defendants? Certainly not; once again the COTs were discriminated against in the most deplorable manner.
On 24 January 1995 Alan Smith responded to Dr Gordon Hughes’ very important 23 January 1995 letter (but he didn’t receive any acknowledgement that Dr Hughes had received it). John Pinnock, the second TIO, later wrote to Alan (on 28 June 1995) claiming that no-one had received Alan’s response to Dr Hughes’ letter, so therefore the record showed that Alan had not replied.
After the statute of limitations had expired, and Alan could therefore no longer appeal his arbitration award, the TIO’s office returned most (but not all) of Alan’s arbitration documents. One of the documents that Alan DID get back was a copy of his original faxed letter to Dr Hughes dated 24 January 1995, with the correct fax machine footprint identified across the top of the document.
If Dr Hughes had replied to Alan’s 24 January 1995 letter, he could have proved Telstra knowingly used fraudulent documents as arbitration defence documents as the following link > Telstra’s Falsified BCI Report shows.
The TIO did NOT have the authority to introduce a separate agreement between the defendants, the TIO and the TIO-appointed arbitration resource unit. The fact that the claimants was not advised of this shows the type of respect that the TIO had for the claimants. On page 5 of the Commercial Arbitration Act 1984, under Part II – Appointment of Arbitrators and Umpires, (see Open Letter File No/21
6. An arbitration agreement shall be taken to provide for the appointment of a single arbitrator unless –
(a) the agreement otherwise provides; or
(b) the parties otherwise agree in writing.
The fast-track arbitration procedure agreement the COT Cases signed, mentions only one arbitrator. There is no written agreement in existence, seen by the claimants, that allows a second arbitrator to determine what information the first arbitrator will see. It is interesting to collate a number of covert situations set up by key players in the COT arbitrations and mischievously concealed under the arbitration agreement confidentiality clauses, even though those events took place before the confidentiality agreement was signed. In their 2 August 1996 communication to the arbitrator (copied to the TIO), the resource unit admitted to concealing relevant documents pertaining to Alan Smith’s billing issues from the arbitrator during the course of Alan’s arbitration. This serious matter has never been addressed by the TIO or arbitrator
When the Resource Unit was deciding which documents to pass on to Dr Hughes and which to withhold, either they met directly with Telstra or they were in regular contact with the defendants without the claimants being present. Whichever of these processes were used, they were still contrary to the official Arbitration Agreement (Rules).
22 December: This letter from Ted Benjamin to Alan Smith, is headed FOI-Internal Review. It was sent, attached to 24,000 FOI documents, two weeks after Telstra had submitted their defence. Telstra was therefore saved from having to defend any of those 24,000 documents. Further collusion surrounding these 24,ooo FOI documents can be accessed by visiting Chapter Three Prologue page.
12 May 1995: This letter from Dr Hughes to Warwick Smith notes:
the time frame set in the original Arbitration Agreement were, with the benefit of hindsight optimistic; In particular, we did not allow sufficient time in the Arbitration Agreement for inevitable delays associated with the production of documents, obtaining further particulars and the preparation of technical reports. In summary, it is my view that if the process is to remain credible, it is necessary to contemplate a time frame for completion which is longer than presently contained in the Arbitration Agreement”.
PLEASE NOTE: the poor time frame referred to by Dr Hughes in the Arbitration Agreement was really the poor time frame in Telstra’s (disguised) Preferred Rules of Arbitration, see Exhibits 24, 27 and 28.
Both Dr Hughes and Warwick Smith concealed this arbitration agreement deficiency from Alan during his designated appeal period. However, the remaining three claimants were allowed between 13 months to three years longer than I to prepare their claims and answer Telstra’s defence.
12 May 1995: The fax identification on these two documents indicates that either Warwick Smith or the TIO’s office faxed both documents directly to Ted Benjamin (Telstra). The coversheet lists twelve TIO Board or Council members, indicating that they too received this information regarding Alan Smith’s arbitration award, which was handed down on 11th May 1995 (the day before the faxes were sent).
As we have shown, Ted Benjamin attempted to minimise Telstra’s liability by withholding numerous FOI documents from Alan during his arbitration (and then only forwarding the most relevant and important documents after Alan’s appeal period had expired). Since these two documents and the arbitrators award were faxed directly to Mr Benjamin, it would be interesting to know whether or not a copy of the Smith award, and/or the arbitrator’s letter (Exhibit 18, above) were ever sent to any other Board or Council members.
More than two hours after receiving the alarming 12 May 1995 letter from Dr Hughes, Warwick Smith released a public media statement (see Open Letter File No 55-B, attached as Exhibit 3), advising the first COT arbitration had concluded and the claimant had received natural justice.
That Dr Hughes used an arbitration agreement he labelled not credible is not mentioned in this media release. Likewise, there is no mention that, because Alan assisted the Australian Federal Police with its investigations into Telstra intercepting my telephone conversations and faxes (see Senate Evidence File No 31), Telstra threatened him that if he continued to assist the AFP then there would be NO further releases of FOI documents, which Alan needed to complete his arbitration claim. The fact that the Senate and the Commonwealth Ombudsman demanded to know why Alan was threatened was important enough for it to be recorded by Warwick Smith in his media release: it was not. Worse, this media release does not mention that Telstra actually carried out those threats and withheld the 24,000 FOI documents (see Exhibit 23)
12 September 1995: This letter was written by John Pinnock to Ted Benjamin, regarding Alan Smith’s evidence showing that Mr Benjamin waited until after Alan’s appeal time had expired before releasing relevant FOI documents. In this letter Mr Pinnock notes:
“You have also responded that Documents N00005, N00006 and N00037 were first supplied to Mr Smith under FOI on 26 May, and that they were not available prior to that date. Could you please clarify why this is so?”
Alan Smith has never seen a response to Mr Pinnock’s letter.
10 January 1996: John Pinnock responds to Alan Smith’s request for documents surrounding the TIO office involvement in the Fast Track Arbitration Procedure (FTAP) noting: “I do not propose to provide you with copies of any documents held by this office”.
15 & 18 January 1996: These two letters from Alan Smith, to Laurie James President of the Institute of Arbitrators Australia, shows quite clearly Alan’s concerns that he was literally BLACKMAILED into abandoning the already signed and operating Fast Track Settlement Proposal (FTSP) i.e. sign the FTAP or you will not receive your FOI documents and so will not be able to finalise your FTSP.
23 January 1996: Dr Hughes (arbitrator) writes to John Pinnock (TIO) concerning Alan Smith’s letters to Laurie James, President of the Institute of Arbitrators Australia (see Exhibit 22 above) noting:
“I enclose copy letters dated 18 and 19 January 1996 from the Institute of Arbitrators Australia. I would like to discuss a number of matters which arise from these letters, including:
(a) the cost of responding to the allegations;
(b) the implications to the arbitration procedure if I make a full and frank disclosure of the facts to Mr James”.
It is confirmed from Chapter Three in Prologue page (see also Exhibit 17 above) that not only were some 24,000 documents not viewed by Dr Hughes and his resource unit it was he who refused Alan Smith the extra time he had requested to submit two reports (into arbitration) which Alan had collated from these late received 20,000 FOI documents. These late received documents actually were supposed to have been freighted to Brisbane airport instead of the Portland airport 1,200 miles in the wrong direction. Dr. Hughes lies to Laurie James cost Alan dearly and continues to cost him dearly until these lies are investigated.
Had Dr. Hughes sidestepped John Pinnock, and instead made a full disclosure of the true facts surrounding Alan’s claims, the matters being discussing on absentjustice.com would have been addressed in 1996. By reading all of Open Letter File No/51-A to 51-G and Chapters One to Four in the Prologue page, you can decide for yourself who is telling the truth concerning these late-released 24,000 alleged-read documents.
On 27 February 1996, John Pinnock wrote to Laurie James (see Exhibit 23 above), attacking my credibility. The TIO deliberately misinformed Mr James that I had telephoned the arbitrator’s wife at 2am one morning:
“Mr Smith has admitted to me in writing that last year he rang Dr Hughes’ home phone number (apparently in the middle of the night, at approximately 2.00am) and spoke to Dr Hughes’ wife, impersonating a member of the Resource Unit.” (See page 3, Arbitrator File No /49)
Who advised the TIO that I telephoned at approximately 2am? The telephone account for the evening in question (also in Arbitrator File No /49) confirms I called at 8.02pm. It is bad enough to see the lies told regarding the actual time that I made this telephone call, but it is perhaps even worse to discover that my reason for making that call was concealed from Mr James. I phoned the arbitrator to alert him I had, that day – 28 November 1995 – received vital arbitration documents that I should have received during my arbitration and these documents definitively proved Telstra’s TF200 EXICOM arbitration defence report was manufactured to pervert the course of justice.
It was exciting to read that Telstra staff proved beer could not have stayed wet and sticky for 14 days – the time between the TF200 EXICOM leaving my premises and arriving at their laboratory. It was already evening but, in the heat of the moment, I rang the arbitrator’s home number. His wife answered and told me he was overseas and not due home for some days.
I was caught on the back foot; in my excitement, I had not considered the arbitrator would not answer the phone. I assumed the arbitrator had discussed the Parliament House rumours, concerning his use of a non-credible agreement, with his wife. I thought if she knew who was calling, she might be afraid I was ringing to accuse the arbitrator. Impulsively, I gave her another name: one I knew the arbitrator was familiar with – that of the FHCA project manager.
Later, I informed the TIO about my exciting find and that I tried to contact the arbitrator to pass on the news. I also explained I gave the arbitrator’s wife the FHCA project manager’s name, instead of my own, to prevent her from being alarmed. I asked him what he would do with this proof that Telstra had fabricated the beer in the phone story. The TIO responded flatly that my arbitration had run its course and he did not intend to involve his office in any further investigation. He said I should go to the Supreme Court of Victoria if I wished to take it further.
If I did write to the TIO, as he alleges in his letter to Laurie James, why didn’t the TIO produce my letter? The reason is, of course, that I never wrote any such letter. Just as deceitful as claiming I wrote such a letter, is the fact that the TIO’s letter to Laurie James was copied to the arbitrator.
Surely the arbitrator would have discussed my telephone call with his wife and been told by her that I had telephoned at 8.02pm and I was, at all times, courteous and respectful.
Did Dr Hughes and John Pinnock allow Dr Hughes’ wife’s name to be used to stop Mr James from uncovering Dr Hughes letter of 12 May 1995 (see Chapter Five below)? Or was it to stop Mr James from investigating Telstra’s conjured TF200 report.
There is more to our story and the way in which Dr. Hughes allowed his good wife’s name to be used to stop an investigation into the now proven conjured ‘sticky beer’ substance TF200 Arbitration Report.
I doubt, even now 20-plus years after the event, Dr Hughes’ wife knows he used her to stop a transparent investigation by Laurie James, (then president of the Institute of Arbitrators Australia) into why her husband and John Pinnock (the second TIO) would not investigate the fresh TF200 EXICOM evidence that arrived on 28 November 1995, confirming that 11 months previously Telstra fraudulently manufactured their TF200 EXICOM arbitration report. I am sure Mrs. Hughes would be alarmed that John Pinnock deceived Mr. James by advising I wrote to him stating I telephoned Dr. Hughes at 2.00 am when no such letter ever existed. John Pinnock’s letter, dated 27 February 1996, was also copied to her husband. Why did Dr. Hughes allow such a letter to be sent when he must have known I did not telephone his wife at 2.00 am at all: I telephoned at 8:02 pm to tell Dr. Hughes what this fresh evidence finally revealed (see Tampering With Evidence).
This tampering with evidence after it left my premises raises a most important question: why has the Australian government not advised the Telstra board that Telstra have both a legal and moral obligation to rectify these as a matter of public interest because this tampering with evidence, during a litigation process, was committed when the Australian Government and its people owned the Telstra Corporation.
It is bad enough to have to live with the knowledge that the Arbitration Resource Unit, and the Arbitrator, failed to investigate my complaints of the multiple, ongoing telephone problems that continued to haunt my struggling business throughout my arbitration process, but the situation becomes even worse when you consider what was to come when John Pinnock (the new administrator of the process) who also held the role of TIO advised Australian politicians that all of the problems I was still complaining about had been fixed during the arbitration, even though Mr Pinnock (the new TIO) were actually still receiving correspondence from Telstra, thirty-three months after my arbitration had ended, claiming that it ‘appeared’ as though the problems had continued to occur after the so-called ‘end’ of my arbitration. What this does highlight however is a clear indication of how corrupt the whole COT arbitration process was: it had been designed, from the very beginning, to cover-up Telstra’s bad workmanship, regardless of the cost, and the cost of that cover-up was the destruction of anyone who was prepared to stand up and raise legitimate complaints, with the Government, in relation to Telstra, on any level.
As we have shown on Open letter File No/46-A to 46-l and in Prologue/Chapters One, on 3 October 1995 and again on 15 November 1995, the Government Communications Regulator and the TIO’s Arbitration Resource Unit advised Mr Pinnock that Telstra had still not investigated or addressed any of my 008/1800 billing claim originally raised during my 1994 arbitration process but that didn’t stop Mr Pinnock from continuing to write to the Communications Minister’s office and my local Federal Member of Parliament, from January 1996 to January 1999 (and beyond) continuing to claim that the billing issues I had raised during that process had already been addressed in full during my previous arbitration of 1994, when the evidence shows that he knew full well that they had not been addressed during that process.
I use the Senate Hansard records of 20 September 1995, in which Senator Ron Boswell discusses the injustices we four COT claimants (i.e., Ann Garms, Maureen Gillan, Graham Schorer and I (see Senate Hansard Evidence File No-1) experienced during our so-called government-endorsed arbitrations, in the previous chapter. It is also most important to raise the following statement made by Senator Boswell, concerning the TIO and his annual report:
“I regard it as a grave matter that a government instrumentality like Telstra can give assurances to Senate leaders that it will fast track a process and then turn it into an expensive legalistic process, making a farce of the promise given to COT members and the inducement to go into arbitration. The process has failed these people and can never give them justice – a point confirmed by professionals deeply involved in the arbitration process itself and by the TIO’s annual report, where conclusion is described as ‘if that is ever achievable’.”
Senator Boswell’s statement that, “a point confirmed by professionals deeply involved in the arbitration process itself and by the TIO’s annual report, where conclusion is described as ‘if that is ever achievable’,” shows, by the date of this Senate Hansard on 20 September 1995, the TIO had already condemned the arbitration process. So why did Mr Pinnock (TIO) and Dr Hughes, eight months later, conspire to mislead and deceive Laurie James concerning the truth of my claims, which were registered with the proper authority, i.e., the president of Institute of Arbitrators Australia?
13 & 14 March 1996: These two letters from John Wynack, Director of Investigations, Commonwealth Ombudsman Office to Telstra’s John Armstrong discusses Alan Smith’s (18th October 1995 FOI request) and why Telstra’s Steve Black ‘arbitration file’ has not been supplied noting: Letter 1
“On 20 December 1996 you informed the Ombudsman: “Telstra has been unable to locate Mr Black’s further general files which include copies of the correspondence received from Hunt & Hunt in relation to the development of the Fast Track Arbitration Process and I am advised that the files, along with other documents, were disposed of by his personal assistant sometime after he left Telstra’s employ”.
“I should be grateful if you would notify Mr Benjamin, Mr Kearney and Ms Gill of my opinion that: ‘On the basis of the information given to me by Mr Benjamin and Ms Gill, it is extremely improbable that Ms Gill disposed of the documents in the ‘arbitration file’, indeed any other documents from Mr Black’s office which would have been included in Mr Smith’s FOI application of 18 October 1995”.
Comments regarding Exhibits 21 to Exhibits 24
In August 1995, three months after Dr Hughes had handed down Alan Smith’s award, Dr Hughes’ secretary, Caroline Friend, returned to Alan some (but not all) of his claim material plus copies of the draft and final versions of the DMR & Lane Technical Report and some letters that had been exchanged between Dr Hughes and Ted Benjamin during Alan’s arbitration but which Alan had never seen before, even though keeping these letters from Alan contravened clause 6 of the arbitration agreement which clearly states:
“A copy of all documents and correspondence forwarded by a party to the arbitrator shall be forwarded by the arbitrator to the Special Counsel and the other party”.
Other documents from before Alan signed the arbitration agreement (but which had also been hidden from him) confirm that Dr Hughes, in his capacity as assessor/arbitrator, had corresponded with Telstra regarding the arbitration agreement. It was this information that suggested to Alan that the arbitration process had not been administered independently and/or the rules had not been followed appropriately, as the COT claimants had been led to believe.
Since August 1995, Graham Schorer and Alan have acquired documents confirming that Dr Hughes, Telstra and the TIO met secretly to discuss the arbitration agreement (see Exhibit 14) We now know that the agreement being discussed at those meetings had actually been drawn up by Telstra (Telstra’s ‘Preferred Rules of Arbitration’), rather than independently drafted by Dr Hughes and the TIO’s Legal Counsel, even though Senators Richard Alston and Ron Boswell, Richard Bolt (Democrats), Graham Schorer’s solicitor (William Hunt), Graham and Alan had all been told – officially – that the rules HAD been drawn up by the arbitrator and the TIO’s Legal Counsel. It has now also been confirmed that the arbitration agreement was later secretly altered, without the knowledge or consent of the claimants, just hours before Graham Schorer and Alan Smith signed what now turns out to be the disguised and then altered ‘Preferred Rules of Arbitration’ drawn up by Telstra – the defendants.
We believe the Senate Estimates Committee would have investigated these issues if Mr Pinnock (then the TIO) had told the Committee (see Exhibits 25 & 26) that the arbitration agreement had actually been drafted by Telstra (and not the TIO Special Counsel or the arbitrator) and had then been secretly altered to the disadvantage of the claimants and Dr Hughes had declared the agreement to be ‘not credible’.
24 June 1997: Pages 76 and 77 from the Senate Hansard Estimates Committee Hearing into a number of COT complaints the conduct of the TIO-administered arbitrations included the following exchanges between Senator Schacht, Senator Carr, Ted Benjamin and Graeme Ward, Telstra’s Group Director, Regulatory and External Affair:
Mr Benjamin – “I believe that we have learnt from our experience.”
Senator CARR – “I just quote you the case for Alan Smith. He has been through the arbitration and from the documentation that I have in front of me, he is a highly dissatisfied customer. It actually has not resolved much at all.
Mr Benjamin – “He keeps raising issues he raised in the arbitration and he does write to many people making that complaint.
Senator CARR – “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 under 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.”
Senator SCHACHT – “It does seem odd if someone is collecting files. That is a matter that has nothing to do with the 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. If it is true, I do not know why you would be collecting that information.”
Mr Benjamin – “I know of no-one who is collecting that information.”
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 cases?”
26 September 1997: more than two years after most of the arbitrations were concluded, the Telecommunications Industry Ombudsman, John Pinnock, formally addressed a Senate estimates committee and as noted in pages 109 and 110 from the Senate Estimates Committee Hearing into a number of COT complaints concerning the conduct of the TIO-administered arbitrations includes the following exchange between Senator Schacht and Ted Benjamin:
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.”
Senator SCHACHT – “Did the council make any decisions about CoT cases or express any opinion?”
Ted Benjamin – “I might be assisted by Mr Pinnock.”
Mr Pinnock – “Yes”
Senator SCHACHT – “Did it? Mr Benjamin, did you declare your potential conflict of interest at the Council meeting, given that as a Telstra employee you were dealing with CoT cases?”
Mr Benjamin – “My involvement in CoT cases, I believe, was known to the TIO council”.
Senator SCHACHT – “No, did you declare your interest?”
Mr Benjamin – “There was no formal declaration, but my involvement was known to the other members of the council”.
Senator SCHACHT – “You did not put it on the record at the council meeting that you were dealing specifically with CoT cases and trying to beat them down in their complaints, or reduce their position; is that correct?”
Ted Benjamin – “I did not make a formal declaration to the TIO”.
The two above Senate Estimates Committee Hansards (see Exhibit 25 and Exhibit 26) above, gives good argument that neither, Ted Benjamin or Graeme Ward should have been on the TIO Board and Council during the COT arbitrations.
Chapter Two absentjustice.com/Arbitrator / Part One confirms that, after a Telstra technician inadvertently left a briefcase at Alan’s Cape Bridgewater premises on 3 June 1993, despite the then government communications regulator AUSTEL, demanding Telstra provide the government with copies of all the information Alan advised was in the briefcase, Jim Holmes and other senior Telstra executives knew many of the sensitive documents were not provided to AUSTEL. Alan raised this briefcase issue in his Fast Track Settlement Proposal and believed it would be forwarded by the TIO to the Fast Track Arbitration Procedure when the COT four cases abandoned the FTSP: it was not. The arbitrator’s award, at point 7.14, shows he found in favour of Telstra – that Telstra had settled with Alan in a fair manner during his 1992 settlement; however, the briefcase documents and AUSTEL documents show otherwise.
Chapters Two to Four in absentjustice.com – brief summary part 1 give an overall summary of the type of technical information that was in the briefcase – but not viewed by the arbitration process, because the TIO office did not forward it to the arbitrator, as should have happened during Alan’s arbitration. Jim Holmes should never have been allowed to attend the TIO monthly board meetings while the COT cases’ arbitrations were being discussed.
Also during this 26 September 1997, Senate committee meeting John Pinnock, formally advised the committee that:
“In the process leading up to the development of the arbitration procedures – and I was not a party to that, but 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. …
“For present purposes, though, it is enough to say that the process was always going to be problematic, chiefly for three reasons. Firstly, and perhaps most significantly, the arbitrator had no control over that process, because it was a process conducted entirely outside the ambit of the arbitration procedures.” (See Arbitrator File No/71)
Why were the arbitrations not conducted under the agreed ambit of the arbitration procedures? How can arbitration be a just process when the arbitrator has no control over how it is conducted? When did Dr Hughes lose control over the arbitrations? Was it the first week, two months or even nine months into the process? And, just as importantly, who authorised him to conduct the process entirely outside of the ambit of the arbitration procedures?
There is NO amendment attached to any agreement, signed by the above-mentioned COT members, allowing the arbitrator to conduct their particular arbitrations entirely outside the ambit of the arbitration procedure – and neither was it stated that he would have no control over the process once we signed those individual agreements. How can the arbitrator and TIO continue to hide under a confidentiality clause contained in our arbitration agreement when that agreement did not mention the arbitrator would have no control because the arbitration would be conducted entirely outside of the agreed ambit of the procedure.
24 October 1997: John Pinnock writes to Ms Pauline Moore, Secretary Senate Environment, Recreation, Communications and the Arts Legislation Committee stamped (CONFIDENTIAL) 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.
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 roll as Administrator. Accordingly, I ask that the answers given below to the questions on notice be treated as confidential by the Committee and not published:
- 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.
- 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 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”.
There is nothing in the Arbitration Agreement (rules) that allows the TIO to decide what documents he thinks are relevant to the COT arbitration either during or after their arbitrations. For Mr Pinnock to make the statement: “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 historical interest only, and the COT members did not advance any argument as to why it was relevant to their arbitration”, is clear proof that the TIO had more control over the arbitration process than the government is aware. Mr Pinnock’s previous statement to the Senate Estimates Committee on 26 September 1997 (see above) where he states: “Firstly, and perhaps most significantly, the arbitrator had no control over that process, because it was a process conducted entirely outside the ambit of the arbitration procedures,” further confirms the arbitrator certainly had no control over the arbitrations.
A further testament that the TIO had more control over the arbitrations than the arbitrator can be best summed up by reading Chapter Seven Arbitrator / Part Two under the heading a Secret Deal which shows that Telstra’s Arbitration Liaison Officer Steve Black wrote to Warwick Smith the TIO on 11 July 1994 (see My Story Evidence File/16) stating:
“Telecom will also make available to the arbitrator a summarised list of information which is available, some of which may be relevant to the arbitration. This information will be available for the resource unit to peruse. If the resource unit forms the view that this information should be provided to the arbitrator, then Telecom would accede to this request”.
The statement in Telstra’s letter “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 that the TIO-appointed resource unit had been assigned to vet most, if not all, the arbitration procedural documents en route to the arbitrator. If the TIO-appointed resource unit decided a particular document was not relevant to the arbitration process, it would not be passed on to the arbitrator or other parties. This particular secret deal has been linked to further clandestine dealings and is discussed further elsewhere on absentjustice.com.
I again state to the Australian Government: how can my claims against the TIO and their appointed arbitration consultants including the TIO-appointed arbitrator be investigated by the TIO office.
The TIO was a privately funded ombudsman and as such did not have the authority to refuse to provide the COT claimants with a copy of Telstra’s “Preferred Rules of Arbitration”. FOI documents prove that these ‘preferred rules’ were faxed to the then-administrator of the FTSP, Warwick Smith (TIO), on 10th January 1994, even though Garms, Gillan, Schorer and Smith were then operating under the FTSP Commercial Assessment process which all four had signed by 23rd November 1993.
Alan Smith submitted the first section of his FTSP claim on 27th January 1994, without knowing that Telstra had already faxed their “Preferred Rules of Arbitration” to Warwick Smith and was pressuring the TIO to use their version of an arbitration agreement in preference to the already signed agreement.
On page two of the award Dr Hughes handed down on the Smith arbitration on 11th May 1995, he 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 with me, Telecom and the four COT Case persons concerned”. When the claimants were forced to abandon the already-operating FTSP Commercial Assessment, and while the FTAP agreement was being drawn up, the claimants were never advised that Telstra had actually drafted the arbitration agreement. It can therefore only be assumed that, when Warwick Smith was the TIO, and again when John Pinnock took over that role, they each refused to provide a copy of Telstra’s ‘Preferred Rules of Arbitration’ to the claimants because that would have revealed that they had agreed to the COT arbitrations being conducted according to a Telstra agreement and not the independently designed agreement that the claimants had been told had been drafted by Dr Hughes and Minter Ellison (the TIO’s Special Counsel).
The fact that both Warwick Smith and John Pinnock refused to provide the claimants Telstra’s ‘Preferred Rules of Arbitration’ proves that the TIO’s office has not been transparent in their dealings with the Garms, Gillan, Schorer and Smith COT arbitrations.
We know now that the TIO, the TIO’s Legal Council and the arbitrator secretly agreed to accept Telstra’s ‘Preferred Rules of Arbitration’ from the very beginning, and those rules included time frames chosen by Telstra. We also know that when Dr Hughes condemned the (Arbitration Agreement) as not credible on `12th May 1995, (see Exhibit 18 above) he was in fact really condemning Telstra’s ‘preferred rules’ which he and Warwick Smith has secretly used in the arbitration process and it was this agreement that did not allow enough time “for the production of documents, obtaining further particulars and the preparation of technical reports” and the rules therefore made the whole arbitration process unworkable.
Did it not occur to the TIO, the TIO’s Legal Counsel or the arbitrator that Telstra may have deliberately set up their ‘preferred rules’ so they could intentionally drip feed documents to design rules that would favour Telstra?
26 June 1998: In this letter to Graeme Ward, Senator O’Chee notes:
“I refer to your letter of 22nd June 1998 to Senator the Hon Richard Alston. 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.”
In fact, Mr Ward should never have been involved in this serious Telstra / COT issue while he was also an active member of the TIO Board.
Senator O’Chee’s letter suggests that Mr Ward wanted these matters dealt with by the arbitrator, rather than the law, because the outcome would then be more likely to favour Telstra. This is yet another indication of the unhealthy relationship that existed between the TIO Board, the TIO Council, the FTAP arbitrator and Telstra.
7 November 1997: This letter to Ms Pauline Moore, Secretary Senate Environment, Recreation, Communications and the Arts, Legislation Committee from John Pinnock (TIO) notes:
“I refer to your letter of 31st 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. To date the only document which I have supplied to the Committee has been a copy of Telstra’s Preferred Rules of Arbitration, (see my answers to Q.10 of Senator Boswell’s questions). In my letter of 24 October 1997, I set out my reasons for seeking confidentiality in relation both to information and documents supplied in that letter”.
26 May 1999: This letter to Alan Smith from John Pinnock notes: “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″.
12 May 2004: This letter from the TIO Business Manager Philip Carruthers to Alan Smith notes: “The letters for Ms Marsh, Hon Staley, Dr Newell, Mc Cleary, and Mr Brown will be passed on to them at the Council meeting scheduled for 19 May 2004”, (letter referred to is also attached).
3 March 2006: As part of Alan Smith’s most recent Senator Helen Coonan’s DCITA independent assessment process he wrote to John Pinnock asking for copies of the minutes of the Council meetings for the dates 21st June 1999 and 19th May 2004 see Exhibits 30 & 31. This request was to assist Alan Smith with his DCITA claim.
20 April 2006: John Pinnock responds to Alan’s letter of 3rd March 2006 see above“I am seeking advice about your letter and will write to you as soon as possible”.
PLEASE NOTE: Alan Smith has never been provided with a response from Mr Pinnock on this matter.
Attached to Exhibit 33 was Alan Smith’s letter dated 26 April 2004 to the TIO Board (seven members) and eleven members of the TIO Council disclosing numerous breaches of the Arbitration Act by the TIO and TIO arbitration resource unit.
On page 3 of this letter after the conclusion of point 6, Alan notes:
“Warwick Smith, David Hawker MP and another party (who shall remain anonymous for the time being) all know that, during our arbitrations the CoT spokesperson , Graham Schorer, was contacted (twice) by young computer hackers who had hacked into Telstra’s emails. These youngsters advised Graham that our own lawyers were “Screwing” us during our arbitrations although none of the four CoT claimants had lawyers acting for us at the time. The youngsters asked if we wanted copies of the Telstra emails to prove their allegations and I passed this information on to Warwick Smith and David Hawker etc etc”…
And in the next paragraph Alan goes onto say:
“Since this contact from the hackers, three of the four CoT claimants – Ann Garms, Graham Schorer and I, have received documents or phone calls from unknown sauces, all advising us about problems with Dr Hughes’s conduct, or the conduct pf the TIO-appointed resource unit.”
And in the third paragraph:
“As attachment three confirms, Warwick Smith would not have agreed to this arbitration so it seems that the TIO’s office may be in the clear on this point.
and the fourth paragraph states:
“Since the TIO’s office were the supposedly independent administrators of my arbitration, the TIO Board and Council should at least be concerned enough to find out whether or not the signed legal arbitration agreement was altered with or without the TIO’s knowledge and whether it was altered before or after it left the office of Minter Ellison”… etc etc
The following is only an overview of the still unaddressed TIO-administered arbitration issues:
Page 180 ERC&A, from the official Australian Senate Hansard, dated 29 November 1994, reports Senator Ron Boswell asking Telstra’s legal directorate:
“Why did Telecom advise the Commonwealth Ombudsman that Telecom withheld FOI documents from Alan Smith because Alan Smith provided Telecom FOI documents to the Australian Federal Police during their investigation?”
After receiving a hollow response from Telstra, which the senator, the AFP and I all knew was utterly false, the senator states:
“…Why would Telecom withhold vital documents from the AFP? Also, why would Telecom penalise COT members for providing documents to the AFP which substantiate that Telecom had conducted unauthorised interceptions of COT members’ communications and subsequently dealt in the intercepted information by providing that information to Telecom’s external legal advisers and others?” (See Senate Evidence File No 31)
What is so appalling about this withholding of relevant documents is that no one in the TIO office or government has ever investigated the disastrous impact this had on my overall submission to the arbitrator.
It is blatantly obvious The Establishment, which controlled my arbitration process, also denied me my rights as an ordinary citizen – an equal before the law – and ultimately deprived me the right of having justice run its due course. The arbitrator and the government (who, remember, at the time fully owned Telstra) should have initiated an investigation into why an Australian citizen, who assisted the AFP in their investigations into unlawful interception of telephone conversations, was disadvantaged during a civil arbitration process.
NONE of the COT cases should have been forced to sign our 1994 arbitration agreements while the Australian Federal Police (AFP) were investigating our claims of the alleged phone and fax hacking by Telstra who, after all, were the defendants in those arbitrations.
Furthermore, when Telstra carried out those threats, Dr Hughes covered up the withholding of these discovery documents by writing to Laurie James, president of the then Institute of Arbitrators Australia, on 16 February 1996 and stating my not-received 24,000 FOI documents were received and read by either him or the arbitration resource unit. TIO official arbitration records, dated 30 March 1995, show those documents never reached the arbitration process (see Prologue/Chapter Three).
Eighteen months after Dr Hughes misled Mr James about these 24,000 late-received documents, a Senate estimates committee investigation was set up to investigate five COT cases’ complaints concerning their documents, which had also been withheld from them. Had Dr Gordon Hughes come forward and admitted to the Senate committee that he deceived the Institute of Arbitrator Australia concerning my withheld FOI documents, I would have been brought into that investigation.
John Wynack, director of investigations for the Commonwealth Ombudsman’s Office, and Tony Morgan, national chief adjuster for GAB Robins (Australia), are fully aware that most of the 24,000 documents were not related in any way to the previously withheld briefcase documents. Most of these 24,000 documents had no identification or schedules showing from whence they were sourced, while others belonged to the Fortitude Valley and Lutwyche telephone exchanges in Brisbane, more than 1,200 kilometres from my exchange. How could I submit this Fortitude Valley and Lutwyche technical documentation into my own Cape Bridgewater Holiday Camp arbitration claim when it belonged to Brisbane COT case members Ann Garms and Maureen Gillan?
On 25 June 1997, the day after the Senate committee was told we five COT cases had to be stopped at all costs from proving our claims, page 5169 of SENATE Official Hansard – Parliament of Australia shows a number of senators discussing the Freehill Hollingdale & Page (Telstra’s lawyers) COT strategy, drafted on 20 September 1993. This strategy advises Telstra how to conceal technical information from the first four COTs under Legal Professional Privilege, even though those documents were not privileged. The first four COT cases were Graham Schorer (Golden Messenger), Ann Garms (Tivoli Theatre Restaurant), Maureen Gillan (Japanese Spare Parts) and me, Alan Smith (Cape Bridgewater Holiday Camp). The COT strategy is available at Prologue Evidence File No/1-A.
Had Telstra and the Government Communications Regulator, AUSTEL (now ACMA) have allowed the arbitrations to be conducted under the rule of law, i.e. under the agreed ambit of the arbitration procedure – then most, if not all, of the ongoing telephone problems being experienced by the COT Cases in 1994, could have been located. Had this taken place, it is secretly accepted within Government circles that Australia could have started fixing the ailing copper wire network in 1994 (twenty-two years ago) rather than in 2013/14.
In February 1994, Detective Superintendent Jeff Penrose and Constable Melanie Cochrane of the Australian Federal Police (AFP) visited my business to discuss my concerns regarding the possibility my telephone conversations were being intercepted as well as my faxes. During this visit, I spoke to Constable Cochrane regarding my concerns about the privacy issues connected to my singles club records, explaining I had provided club members with a written assurance that I would not circulate their private information to anyone without first seeking their permission. Hence, I was particularly concerned about submitting club members’ private information into my Fast Track Settlement Proposal. Constable Cochrane commented that the Telecommunications Industry Ombudsman (TIO: the administrator of our arbitrations) should contemplate suspending our settlement process until after the AFP finished its investigations into Telstra’s unauthorised interception of COT cases’ telephone conversations and in-confidence faxes. The TIO refused that request, even though much of my single club material was sensitive.
The sensitive material referred to was so alarming it led to the AFP requesting I continue to provide it with all relevant material I received, as part of my arbitration, that confirmed Telstra was intercepting my telephone conversations and faxes. Australian Federal Police Investigation File No/1 confirms both my private and businesses faxes were intercepted over many years, and my phone conversations for a considerable period. This invasion of my privacy occurred more than 22 years ago, before terrorism was a concern for our great nation. I have never been even suspected of being a criminal. On 25 March 1994, one month before I signed the arbitration agreement, The Commonwealth Ombudsman, Ms Philippa Smith, wrote to Telstra’s CEO Frank Blount, advising him Telstra had informed Mr Wynack, director of investigations, the delay in releasing documents to me
“was due to the need for Telecom to check all documents prior to release so that Telecom is alert to the possible use/misuse of sensitive information. Your officers also informed Mr Wynack that they expected the vetting of the documents would take only a couple of days.” (Home Page – Part One File No/2-B)
Many of those within the Establishment said that it was actually unconstitutional to force the COT cases into an arbitration process with Telstra while the Australian Federal Police (AFP) were still investigating Telstra for alleged phone and fax hacking of the COT cases’ businesses and, furthermore, it was acknowledged that it was clearly an unworkable process. This didn’t stop the arbitrations however, but it does raise a number of important questions. Some of these questions are answered on our Australian Federal Police Investigations webpage.
Four months after Dr Hughes prematurely brought down his findings on my matters, and fully aware I had been unable to submit these 24,000 FOI documents, an emotional Senator Ron Boswell discussed the injustices the four original COT claimants (i.e., Ann Garms, Maureen Gillan, Graham Schorer and me) experienced prior and during our arbitrations. He said:
“Eleven years after their first complaints to Telstra, where are they now? They are acknowledged as the motivators of Telecom’s customer complaint reforms. … But, as individuals, they have been beaten both emotionally and financially through an 11-year battle with Telstra. …
“Then followed the Federal Police investigation into Telecom’s monitoring of COT case services. The Federal Police also found there was a prima facie case to institute proceedings against Telecom but the DPP [Director of Public Prosecutions], in a terse advice, recommended against proceeding. …
“Once again, the only relief COT members received was to become the catalyst for Telecom to introduce a revised privacy and protection policy. Despite the strong evidence against Telecom, they still received no justice at all. …
“These COT members have been forced to go to the Commonwealth Ombudsman to force Telecom to comply with the law. Not only were they being denied all necessary documents to mount their case against Telecom, causing much delay, but they were denied access to documents that could have influenced them when negotiating the arbitration rules, and even in whether to enter arbitration at all. …
“Telecom has treated the Parliament with contempt. No government monopoly should be allowed to trample over the rights of individual Australians, such as has happened here.” (See Senate Hansard Evidence File No-1)
The government was officially informed the four original COT claimants were “denied all necessary documents to mount their case against Telecom” and “denied access to documents that could have influenced them when negotiating the arbitration rules, and even in whether to enter arbitration at all”. The government should have immediately appointed a review of the whole sordid affair. It never did.
How can the Telecommunication Industry Ombudsman investigate itself?