Former Supreme Court judge

PLEASE NOTE: this segment is currently being compiled in conjunction with our Destruction of Evidence page in order to show the reader that COT Cases were deprived their common right to discovery during their arbitration process.

Judge sitting at desk in court dress

Former Supreme Court judge calls for investigation

The revelations have prompted Mr Whealy to call for an investigation.

“It looks like a very serious matter that requires investigation,” he says.

“This is damning material to suggest there’s been a breach of the duty of disclosure.”

Even if the recordings do not contain anything incriminating, Mr Whealy says they are still relevant material for the defence.

“The point is an obvious one: if someone is under surveillance to see whether their behaviour indicates some sort of guilty action, it’s equally important from a defence perspective to show they haven’t been doing anything that’s untoward,” he says.

“While the prosecution might want to seize on one incident or one conversation, the defence are entitled to say ‘let’s look at it overall and see what the behaviour of this person is’, and from that, to say ‘there is a lot of innocent behaviour’, so they are entitled to get that material part.

“But it seems the defence has been deprived of the opportunity to do this.”

I have used the wording by Judge Anthony Whealy of the Supreme Court of New South Whales who presided over the Keli Lane trial in 2010, because of the similarities of his statements concerning full disclosure of documents during litigation and those made by former United States Supreme Court Justice Felix Frankfurter (see Chapter One Destruction of Evidence where I have reported that Justice Felix Frankfurther is credited with having stated

Justice Felix Frankfurter

“if one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny. Legal process is an essential part of the democratic process”.

Dr Hughes (arbitrator) did not demand to know why I was threatened, during my arbitration, with the withholding of my requested discovery documents, sought under the FOI Act. What is so disturbing about this, is that when Dr Hughes learned I continued to assist the Australian Federal Police’s investigations into Telstra’s unauthorised interception of my telephone and faxes – and that Telstra did carry out its threat and stopped releasing FOI documents – he also forgot his official promise to COT spokesperson Graham Schorer made during our pre-arbitration hearing. During this meeting, Graham raised Telstra’s previous unethical conduct towards the COT cases and Dr Hughes stated as arbitrator, he would not make a determination on incomplete information” (see Telstra’s minutes from this meeting [page 3 – second line] My Story Evidence File No 14). It is now confirmed, throughout this website, absentjustice.com, that Dr Hughes did, indeed, make a determination on incomplete information.  This is serious enough, but what about the most important document of the whole arbitration process, which was also concealed, i.e, the Portland and Cape Bridgewater telephone exchange logbook which AUSTEL used in order to prepare their own covert adverse findings against Telstra (see ? Dr Hughes was even advised the Commonwealth Ombudsman was unable to force Telstra to release this document (see Commonwealth Ombudsman’s letter below). Why did Dr Hughes ignore my pleas to access this most relevant log book?

Before I and the other three COT Cases signed for arbitration, Warwick Smith, Peter Bartlett and Dr Hughes all assured us the documents we required from Telstra would begin to flow through to us once our signatures were on the agreement.  The Arbitration Agreement was secretly altered just 36 hours before we were told if we did not sign this altered agreement, Telstra would walk away. The inference was we could not afford to take Telstra to court so we had better sign it, or suffer the consequences of a long court and expensive legal battle. We signed it under duress, after being told if we did not sign the attached media release that stated we were happy little chappies then the same scenario applied. Almost crying with frustration and anger at having reached this gate which was half open we did what we were told.

By May 1994, one month before I had to submit my claim, the flow of documents had stopped before they had started to arrive and so I arranged to go to Melbourne on 14 May 1994 to look at some FOI documents that Telstra stated they would show me, in their offices.

On the 14 May 1994,  I arrived at Telstra’s Exhibition Street FOI viewing room at 9:00 am as previously arranged, to view FOI documents that Telstra had sent me without schedules.  I was introduced to Telstra FOI staff, including George Sutton and Rod Pollock.  I was informed I had the room until 6pm.  I also arranged this meeting so I could apply for other material I had requested, but not received.

Rod Pollock offers fabricated reasons to explain why documents Alan had received some days before were heavily censored by blanking out information.  Alan receives some of the documents he should have received under his December 1993 and February 1994 FOI requests.  Mr Pollock provides some heavily blacked out documents, including about 56 fax cover sheets, with attached documents.  One of the documents refers to the MELU Exchange that caused Alan massive problems between August 1991 and March 1992, so he asks Mr Pollock if he could supply the document, without the blanking out.  Mr Pollock leaves and Alan continues to check the documents provided.

I had some of the documents that Telstra had previously supplied with me.  I noticed faxes that were only half received in the past were now not only incomplete, but they were attached to documents they had no connection to the attached information.  Some of the 56 fax-cover sheets I had seen before, now had completely different material attached.  Nothing seemed to match.  For example, documents relating to a fault in 1991 were attached to a fault record dated 1993 that stated no fault had been found.  I was so alarmed at this discovery, that I phoned Detective Superintendent Jeff Penrose of the Australian Police and described the situation to him.  At his suggestion, I prepared a Statutory Declaration and provided it to both the TIO and the arbitrator.

A TIO file note dated 16 May 1994, which I received late in December 2001 (under the TIO policy privacy Act), confirms my visit to the TIO’s office (two blocks from Telstra House) and my request for a witness to accompany me back to the Telstra viewing room to see the altered documents for themselves. In the last paragraph of this document the deputy TIO, Sue Harlow, refers to the proof I left confirming Telstra altered information on the supplied documents, noting, “He left an example of this with us (also attached).”

Courts need evidence

Courts need evidence to do justice in adjudicating disputes. Concerning the protection of evidence, its admissibility, and discovery/disclosure, it is ultimately for the courts, in a democracy, to decide what is and what is not admissible in evidence in a judicial proceeding. It does not fall on the parties to decide unilaterally for themselves to advantage themselves. The Executive may not unilaterally decide for itself what is or is not required by the Judiciary and be permitted to embark on a unilateral concealment exercise when a party to litigation.

Prologue Evidence File 1-A shows that Telstra’s lawyers spuriously advised Telstra exactly how to conceal documents from the first four COT claimants (which included me), even before we started our arbitrations.  A comparison of Prologue Evidence Files 1-B and 1-C reveals that it is also blatantly obvious that the same lawyers actually drafted the first COT arbitration agreement that was then used for those first four arbitrations, even though the claimants, and also many Senators, were told that the agreement was drafted independently of Telstra.  Then, even though the arbitrator (Dr. Hughes) advised the TIO (Warwick Smith) on 12 May 1995, that this original agreement was ‘not a credible document to use’ (see Open Letter File No 55-A), he used it anyway – to the detriment of the claimants but even this unethical conduct by the arbitrator is still covered by the confidentiality agreement signed by the parties.

A young Julian Assange

Enter the hackers – Julian Assange

Julian Assange, the Wikileaks founder, appears to be one of the hackers who contacted COT spokesperson Graham Schorer on two occasions, just after we four COT cases signed our arbitration agreements. The hackers warned us that the Telstra archives they had breached showed those involved in our arbitration, including the defendant Telstra, were committing offences against us. In the opinion of the hackers, these offences were unlawful and they were prepared to provide us with the hacked Telstra emails and faxes as proof.

Graham Schorer’s impression of the caller was that he strongly wanted to expose the injustices being perpetrated against us COT cases (all Australian citizens just like he and his friends). This certainly fits with the character of Julian Assange being portrayed in some area’s of the media today.

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

At this point, it would also be helpful to take a look the following link > Shocking new details on Lawyer X affect royal commission into … – ABC, because this particular well-kept secret about some Australian lawyers who were acting for Government Departments, such as the police, during various legal cases, breached their legal responsibilities as lawyers because the latest revelations show that these reported breaches are events that actually happened.  During the COT arbitration processes, absentjustice.com also clarifies how Dr Hughes seriously minimized Telstra’s liability by deliberately not investigating ALL of the claimants submitted claim material including the original ongoing telephone problems that continued to occur, even as the arbitrations progressed.

It has now been proven by many media releases over the first weeks of 2019, that the Victorian Police (which are state government-controlled) were able to infiltrate the legal fraternity within Victoria and corrupt a number of lawyers to break their professional code of conduct and divulge confidential client information to the other side, i.e., the Victorian State Government. This suggests my claims, going back many years, that Telstra and the Australian Establishment was able to sway Dr Gordon Hughes not to fully investigate all of the COT cases’ arbitration claims (and in doing so minimised Telstra’s liability, to the detriment of the claimants) did happen, as it has clearly happened in the Victorian police X investigations (see https://www.theage.com.au/national/victoria/the-revelation-that-has-made-certain-melbourne-lawyers-very-nervous-20190206-p50w3u.html

Renowned Australian author 

Evan Whitton, a renowned Australian author and advocator for the rights of all Australians, no matter what their colour or creed is, has spent more than 30-years investigating crime, corruption and courts. The former journalist of the year maintains our judicial system is irreparably broken and claims criminal lawyers are morally bankrupt and lack integrity and scruples.

In his book, Our Corrupt Legal System: Why Everyone is a Victim (Except Rich Criminals), Mr Whitton argues that we should move from the British adversarial system to the European inquisitorial model, which is less open to corruption. (See https://www.smh.com.au/yes-the-law-can-be-an-ass-20100917l)

On 24 June 1997, the day before the Senate Estimates Committee exposed the COT strategy ex-Telstra employee turned whistleblower, Lindsay White, advised a Senate estimates committee that, while he was assessing the relevance of the technical information requested by the COT claimants, two Telstra officials gave him instructions.

Mr White: In the first inductionand I was one of the early ones, and probably the earliest in the Freehill’s [Telstra’s Lawyers] area – there were five complainants. They were Garms, Gill and Smith [me], and Dawson and Schorer. My induction briefing was that we – we being Telecom – had to stop these people to stop the floodgates being opened.”

Senator O’Chee: “What, stop them reasonably or stop them at all costs –or what?”

Mr White: “The words used to me in the early days were that we had to stop these people at all costs.” (See Front Page Part One File No/6, also pages 36 and 38 of Senate – Parliament of Australia

Four of the five COT Cases who Lindsay White advised the Senate Committee he was told; had to be stopped at all cost from proving their claims were Ann Garms, Maureen Gillan, Graham Schorer and me. These were the same four names that appear on the COT strategy

In other words, Telstra and its lawyers were allowed to single out four fellow Australian citizens from the then-population of 18 million and determined that, even if we four COT cases spent hundreds of thousands of dollars in arbitration fees (which we did), we would never win our arbitration claims.

The Hon Richard Alston

Senator Richard Alston’s statement, in the Senate on 28 October 1993 while he was Shadow Minister for Communications, shows he advised the Senate that the COT cases’ forthcoming arbitrations would be administered independently by one arbitrator to each claimant (See parlinfo.aph.gov.au/parlInfo/search). He stated:

“As I understand the proposal it would be based on the UK model. The process would be managed or facilitated by the Telecommunications Industry Ombudsman, who would then contract out arbitration responsibilities to one of a panel of arbitrators for each of the claims in order to enable all matters to be dealt with as expeditiously as possible.

“Both sides would then put written material before the arbitrator who would then hand down a judgment without taking submissions or hearing evidence. The UK experience suggests that complex cases can take up to three months before a decision is handed down but it could be anticipated that these matters would not take that length of time.”

In late October 1993, and again in January 1994, Senator Richard Alston and Senator Ron Boswell likewise advised the first COT cases – Ann Garms, Maureen Gillan, Graham Schorer and me – the same as he advised the Senate in October 1993; i.e. one arbitrator per arbitration. Senator Alston made these statements a month after Telstra and its lawyers, Freehills, decided to operate outside of the law and use the COT strategy to destroy any reasonable chance we had of proving our phone problems were not just historic/past problems, but were ongoing and continuing to affect the viability of our businesses. I do not believe for one moment that Senator Richard Alston, or any senators who were determined to ensure the COTs received the justice we were entitled to, would have allowed us to sign our arbitration agreements had they known what Telstra and their lawyers intended doing to prevent the COT cases from receiving our promised documents.

Australian Senate Canberra
Australian Senate Parliament House Canberra

Systematic Judicial Persecution

On 25 June 1997, a number of senators discussed Telstra employees rorting millions upon millions of dollars from Telstra shareholders: i.e., the government and Australian citizens, who then owned Telstra see page 5163, in the following link > SENATE official Hansard – Parliament of Australia. It has since been shown that both the Telstra CEO and its board members had known, for some time, that millions upon millions of dollars were being unlawfully syphoned from the government coffers. In fact, figures running into the billions have also been quoted. It is important to view page 5163 because it proves beyond all doubt that systemic criminal conduct did exist within the Telstra Corporation while the COT matters were being discussed. This corruption was certainly real and not a figment of our imaginations.

Although the following ‘COT strategy’ has already been discussed above, it is raised again here because the Australian Government should have been called as a direct result of the Government Communications Regulator, AUSTEL (now ACMA), discovering that Freehill Hollingdale & Page, who had been appointed by Telstra as their main arbitration defence lawyers, were about to be involved again.  After all, AUSTEL/ACMA knew that Freehills had put that COT strategy together for Telstra (see page 5169 SENATE official Hansard) and so they (AUSTEL/ACMA) and had already assured both the members of COT and numerous Senators that Freehills would not be used in any way in connection with our arbitrations (see point 40 in the following Prologue Evidence File No/2).  So why didn’t the Government immediately insist that this legal firm, one that had already caused so much heartache and grief for the COT Cases, could not be used again as the whip to ensure the COT Cases did not win their cases?

The author of this COT strategy is the same lawyer Denise McBurnie, with whom I was forced to register each of my phone complaints, in writing, before Telstra would address these problems seeabove. NONE of the fault information I provided to this lawyer, concerning ongoing telephone problems and Telstra’s response to those problems, were ever released to me during my arbitration.

To add further insult to these injustices, on 12 September 1994, as part of the arbitration process, I was obliged to meet with Telstra’s consulting forensic psychologist in Portland’s Richmond Hotel so he could analyse my mental health as part of Telstra’s defence of the arbitration process. One of the most important issues I raised with him was the trauma I suffered at the hands of the legal firm that hired him. He appeared to listen carefully to what I described and he said being directed to register phone complaints, in writing, with Telstra’s lawyer, before they would be investigated, was most disturbing. I provided confirmation that losing six incoming calls in a single day was common. Writing to a lawyer, explaining lost calls, was more than just soul destroying, it just about broke my will power to carry on. He said he was shocked Telstra and its legal firm forced this on me and agreed this would certainly affect my mental state over the many months I had to do this.

However, when Telstra’s lawyers, which the government assured us would not be used in our arbitrations provided this clinical psychologist’s witness statement to the arbitrator, it was only signed by a lawyer from this legal firm. It bore no signature of the psychologist and didn’t contain his concerns regarding me having to first contact this legal firm, in writing, before Telstra would address my telephone problems.

The most alarming points about this unsigned witness statement are:

  1. Before the psychologist met with me, Telstra’s lawyers provided him with a copy of the Cape Bridgewater Bell Canada International (BCI) addendum report stating 13,590 test calls were carried out, over a five-day period, into the Cape Bridgewater RCM exchange, using the TEKELEC CCS7 monitoring equipment. This report stated the test calls had a 99 per cent success rate.
  2. Neither the psychologist nor the arbitrator was told tests through the Cape Bridgewater exchange was impracticable: the nearest exchange that could accommodate the TELELEC CCS7 equipment was the Warrnambool exchange, 120 kilometres from Cape Bridgewater (see Telstra’s Falsified BCI Report ‘masked identities’)

Had the psychologist known the 13,590 test calls allegedly carried out by BCI, could not terminate through the TEKELEC CCS7 monitoring system at Cape Bridgewater, his assessment of my mental state would have been somewhat different. He, too, might have been distressed if he had been aware Telstra misled and deceived him prior to him assessing my mental state.

At point 3, in this unsigned witness statement, the forensic psychologist states:

“I have been retained by Messrs Freehill Holllingdale & Page, the solicitors acting for Telstra Corporations Limited (“Telecom”) to review a report on the psychological status of Mr Alan Smith”...etc etc

Had this forensic psychologist been provided with the same COT strategy (see Prologue Evidence File 1-A to 1-C) showing my businesses were one of the four being targetted by Freehill’s in order to destroy our cases against Telstra he might have made a different set of findings in his witness statement, that he did.

It was Freehill’s lawyer, Wayne Maurice Condon, who verified, under oath, the ‘signature’ on the forensic psychologist’s witness statement, thereby attesting to a signature that was not actually on this significant document at all, so why was Mr Condon never investigated for this unlawful conduct?  Furthermore, it is also clear, from absentjustice.com/brief summary,  that at least three other arbitration witness statements that had all been sworn under oath by Telstra employees, included numerous false statements that were identified as grossly inaccurate by the AUSTEL/Adverse Findings  report that the Government Communications Regulator prepared,  and yet the TIO and the arbitrator have still continued to refuse to independently investigate why Telstra management allowed their employees to pervert to course of justice to these extremes.

On 5 October 1993, prior to arbitration AUSTEL’s chair Robin Davey provided a draft of the COT Cases Settlement Proposal to Mr Ian Campbell, Telstra’s commercial managing director. This proposal was to be used in the four COT cases’ Fast Track Settlement Proposal (discussed below). The draft notes at point 40:

“Finally, if the attached letter (Attachment ‘D’) dated 7 July 1993 from Freehill, Hollingdale & Page to one of the COT Cases’ solictiors is indicative of the way that Freehill, Hollingdale & Page have approached the COT Cases in the past, I would be more than a little concerned if they were to have a continuing role.” (See Prologue Evidence File No/2)

This FOI document folio R00524 – COT 1306. (AS Personal File 179) dated for the month of September 1993 was released to me by the Telstra under FOI (two years after my arbitration was over). The fact that I received it and the content appears to relate to my ongoing telephone problems which I had previously been forced to provide Denise McBurnie of Freehills before Telstra would investigate my complaint.  folio R00524 actually admits to concealing technical information under Legal Professional Privilege,i.e.

“All technical reports that relate to the customer’s service are to be headed “Legal Professional Privilege”, addressed to the Corporate Solicitor and forwarded through the dispute manager”.

It is also important to note that, during the first week of January 1994, the COTs advised the TIO, who was also the administrator of both the Fast Track Settlement Proposal (FTSP) and the Fast Track Arbitration Procedure (FTAP), that AUSTEL’s Chairman, had assured the COTs that this aforementioned legal firm would no longer be involved in their Fast Track Settlement Proposal.  An internal carrier email (FOI folio C02840) to various carrier executives  AS Personal File 180 notes:

“Steve Lewis (Australian Financial Review news reporter) is following up on his own yarn NOT with the Davey letter to the minister but with the Davey letter to the CEO raising concerns about our use of Freehill’s”. 

Telstra continued use of this legal firm throughout the COT arbitrations and the arbitrator’s refusal, in my case, to look into why Telstra was withholding technical data under Legal Professional Privilege suggested at the time that Dr Hughes (arbitrator) was not properly qualified as an arbitrator since he didn’t seem to understand that Telstra could not legally conceal technical information under Legal Professional Privilege when it had been accessed under the FOI Act.

It is also clear from exhibits Open Letter File No/50-B and 50/C  that I was still having to register my phone complaints with Freehill Hollingdale & Page in 1994 before Telstra would attempt to address my valid complaints.

On the 2 January, 25 March, 6 May and 11 of November 1994, various members of the Commonwealth Ombudsman Office wrote to Telstra demanding to know where my legally requested FOI documents were. As the segment above shows, I was one of the four COT Cases who were having their technical requested documents withheld illegally under Legal Professional Privilege. It was left to Senator Ron Boswell to assist me in this matter unaware that I was now fighting these none released FOI documents on two fronts. Firstly, they were being withheld under illegally under LPP and secondly, because I was assisting the AFP with their own investigations into Telstra’s unauthorized interception of my telecommunications services.

No control over the process

The Australian government, including the communications regulator AUSTEL, and the COT cases themselves were all assured the arbitration process would be conducted under the ambit of the Arbitration Act 1984. They were also assured the arbitration rules would be drafted totally independently of Telstra, in the same fashion as in the UK when British Telecom agreed to arbitration. In that case, the Chartered Institute of Arbitrators UK drafted the arbitration agreement. The evidence we supply on absentjustice.com shows Telstra’s lawyers covertly drafted the arbitration agreement and, even though Dr Gordon Hughes condemned that agreement as not credible (see Open Letter File No/50-A), he still used it to the detriment of the claimant.

The government promised the claimants that if they accepted this endorsed process then it would be conducted under the ambit of the Arbitration Act. However, unbeknown to the government and the claimants, the arbitrator and administrator of the process secretly met with the defendant, Telstra (see Chapter Three Burying The Evidence) and, between them, it was decided the arbitration agreement – the rules concerning how the process would run – would be altered. We suggest the reader views Chapter Three Burying The Evidence page because it will enlighten them to understand how undemocratic the COT arbitration process was going to be even before the claimants signed this tainted arbitration agreement.

Australian Senate

On 26 September 1997, the Telecommunications Industry Ombudsman John Pinnock formally addressed a Senate estimates committee (see page 99 > COMMONWEALTH OF AUSTRALIA – Parliament of Australia): noting:

“In the process leading up to the development of the arbitration procedures – the claimants were told clearly that documents were to be made available to them under the FOI Act.

“Firstly, and perhaps most significantly, the arbitrator had no control over that process, because it was a process conducted entirely outside the ambit of the arbitration procedures.”

This contradicts information in a letter dated 24 January 1994 (see Open Letter File No/48-A). This letter, written to Dr Hughes before he was formally appointed as arbitrator, confirms Mr Frank Shelton (the TIO-appointed special counsel to the arbitration process) agreed with Dr Hughes that the first four COT claimant’s arbitrations would all be conducted according to the Victorian Commercial Arbitration Act 1984. This was despite the four COT cases still wanting to have their matters assessed under the previously signed and agreed to commercial assessment process. When this letter was provided to the four COT claimants, they were also given verbal assurances by the first TIO, Warwick Smith, and Dr Hughes that if they abandoned their commercial assessment process, the arbitrations would be conducted under the ambit of the arbitration procedures.

Why was John Pinnock’s admittance that our arbitrations were not conducted under the agreed-to process not acted upon?

Why weren’t the arbitrations put on hold until the claimants received their promised documents? 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, or 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 the arbitration agreement signed by the COT members, allowing the arbitrator to conduct those particular arbitrations entirely outside the ambit of the arbitration procedure – and neither was it stated that the arbitrator would have no control over the process once we signed those individual agreements. How can the arbitrator and TIO continue to hide under the confidentiality clause contained in our arbitration agreement, when that agreement did not mention the arbitrator would have no control because the arbitration would be conducted entirely outside of the agreed ambit of the