Arbitrator / Part Three

continued from Absentjustice.com / Part Two

Chapter Twelve

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Who Really Prepared the Arbitrator’s Award

If the TIO’s office had nothing to hide concerning these handwritten statements why didn’t they have this handwriting analysed? At least we would have known who was the second or third arbitrator telling the first arbitrator what he could or could not put in his award.

The fact that Commonwealth Government records, dated 20 January 1994, show that the first four COT arbitration processes were endorsed by the federal government should be an incentive for the current government to investigate my claims on absentjustice.com.

As shown above, on page five of the Commercial Arbitration Act 1984, under Part 11 – Appointment of Arbitrators and Umpires – it clearly states:

(6) Presumption of single arbitrator

An arbitration agreement shall be taken to provide for the appointment of a single arbitrator unless – (a)  the agreement otherwise provides; or (b)  the parties otherwise agree in writing.

The Fast Track Arbitration Procedure agreement I signed mentions only one arbitrator. There is no written agreement in existence, that I’ve seen, which allows a second arbitrator to determine what the first arbitrator can or cannot say in the arbitrator’s final award.

My arbitration was finalised on 11 May 1995. If I thought I knew what stress was before this, I was certainly learning more now. The arbitrator’s award was delivered to me by taxi from Melbourne and the effect was shattering but I had to keep going; I had customers to think about. Six days after receiving the report however, nature took over. In front of a group of campers, some 60 children and staff, I collapsed, twitching on the floor. An ambulance delivered me to hospital and, at first, it was suspected that I had suffered a heart attack. A five-day stay in hospital followed and the final diagnosis was — stress.

On the first day home after the hospital stay, I received a call from the FHCA project manager. He had rung, he said, to let me know that he was aware that things hadn’t turned out quite as I had hoped but he believed I now had to put it all behind me, get on with my life and show them what I could do. I am still wondering who ‘them’ was.

As if it isn’t bad enough that the so-called independent arbitrator forced the so-called independent financial assessors to ‘doctor’ their report, it is even more disappointing that the project manager for the financial assessors waited until after my appeal time had elapsed before speaking out. And, why did he ring then anyway? I had only ever spoken to him once through this whole process and that was back on 11 October 1994, during the oral hearing. This phone call seemed totally out of character; or had he heard about my collapse and had an attack of conscience?

Even stranger, during this conversation, the project manager informed me that the executive manager of my case with DMR was also going to ring me; and so he did.

The Canadian DMR manager said something like: I was sorry to hear you had been ill and I hope you get better soon. This has been the worst process I have ever been a party to. This sort of situation would never have happened in North America.

I was so stunned at his statement This sort of situation would never have happened in North America that I later forwarded a signed statutory declaration, recording my memory of this conversation, to various government ministers. I also wrote and faxed DMR in Canada but, three years later, I am still waiting for a response. I have not received any sort of explanation for the would never have happened in North America comment. Could it be that in Canada, DMR Group Canada would not have been pushed so that they didn’t correctly address a legal claim? Who knows?

What we do know however is the arbitrator and the TIO (appointed to administer the arbitrations) decided to let the defendants draft their own agreement so that the process could be run the way the defendants wanted it to run. How that decision then affected the claimants is addressed elsewhere on absentjustice.com but meanwhile, as we have trawled through this cesspool of corruption, collusion and deceit it has become even clearer that many of the powerful Australians who were involved in the COT saga are, even now, in 2015, still advising the current government on these very same issues.

Back to 1995:

Also on 12 May 1995, the arbitrator wrote to Graham Schorer, copied to the TIO special counsel and the other two COT Cases stating:

“I am departing today for two weeks leave. When I return, I intend convening a directions hearing in order to determine whether the parties wish this arbitration to proceed. I would be interested to receive any comments from you (or Telecom) in the meantime”.

As I prepared absentjustice.com and the third draft version of Ring for Justice, I discovered that my arbitrator had previously been Graham Schorer’s business advisor on legal matters and had been on his legal team in his federal court action against Telstra (between 1990 and 1992) on the very same issues he was now in arbitration with, in 1994. As soon as this information came to light, I knew I had no alternative but to confront Graham and ask why he had not revealed this before the COT arbitrations began and why neither the arbitrator, TIO nor the defendants (Telstra) had revealed it either.

Conflict of Interest / Discrimination

Conflict of interest issues are complex matters, and what people have subconsciously done or not done, is the reason why this particular arbitrator should not have been appointed the arbitrator on the four COT cases; he had been both Graham’s business advisor as well as his federal court advisor.

02[1]Although it is unlikely that anyone will ever know if the prior knowledge the arbitrator had, regarding the telecommunication problems Graham had suffered over many years, influenced his judgment as an arbitrator. He did grant Graham 36 months more than he granted me to submit his claim and answer Telstra’s defence of those claims. We do know, however, that when the arbitrator decided not to declare his clear conflict of interest in relation to Graham’s earlier Telstra court action, he compromised all the COT arbitrations, before the process even began.

It may be considered fair to say that the arbitrator began the COT arbitrations with good intentions when he accepted the position and that the extra assistance he provided to Graham only came about because he knew how much Graham’s business had suffered in the past because of the Telstra issues. But, this means that his behavior was a matter of discrimination as well as a conflict of interest.

The Second TIO Takes Over

24 May 1995: Two weeks after the arbitrator had deliberated on my claim using an arbitration agreement he advised the TIO was not a credible document, a further alarming situation happened. Telstra’s arbitration liaison officer (who was also a TIO council member) released 745 FOI documents under the heading Your FOI Request of May 1994. He stated,

“Further documents have recently come to light that fall within your FOI request of 1994. 

“Copies of these documents are enclosed. At this time a table has not been prepared giving decisions in relation to these documents as it was considered by Telecom more important you receive copies of the documents now.” (See Arbitrator File No/54)

Three of these FOI documents, folio N00005, N00006 and N00037 (also discussed in Telstra’s Falsified BCI Report ‘masked identities‘ confirm that Telstra already knew the Cape Bridgewater/BCI tests were fundamentally flawed before they submitted their defence. Here was a TIO council member wearing his Telstra hat releasing this material that I had originally requested 12 months earlier in May 1994. Since this Telstra executive was a member of the TIO council as well as Telstra’s main arbitration liaison officer and distributor of Telstra FOI documents, wasn’t it his duty to ensure that claimants received requested documents as quickly as possible during this TIO-administered arbitration? The late release of these important FOI documents is directly relevant to the following letters of 20, 22 and 28 June 1995:

20 June 1995: My letter to the arbitrator (six weeks after my arbitration) notes:

“I knew all along that the Bell Canada Testing was flawed. Had I received this type of information as a result of my FOI requests, in the beginning of the procedure, my expenses would have been minimal.

“However, the question must be asked again: Did you request this Bell Canada data through the Chair of the Arbitration Procedure?” (See Home-Page File No/29)

this type of information as a result of my FOI requests, in the beginning of the procedure, my expenses would have been minimal.

“However, the question must be asked again: Did you request this Bell Canada data through the Chair of the Arbitration Procedure?” (SeeHome-Page File No/29)

Chapter Thirteen

Believe it or not

It gets worse: On 23 May 1995, after my arbitration was declared officially over, one of the TIO council members, who was also Telstra’s main arbitration defence liaison officer, provided me with conclusive proof, while wearing his Telstra hat, that Telstra admitted to BCI Canada that its Cape Bridgewater BCI tests were impracticable. This TIO council member waited until after Dr Hughes brought down his award before supplying that information, 12 months after I had officially requested it.

As shown in Chapter Thirteen/Arbitrator Part Three, the TIO, Dr Hughes and the TIO special counsel were alarmed at what I had uncovered, and that Telstra had waited 12 months before supplying the BCI evidence. However, instead of demanding answers from Telstra, they (including Telstra) all agreed not to address this very serious matter, so as not to “open the can of worms” (the TIO’s wording, not mine).

A Can Of Worms

My letter to the arbitrator on 20 June 1995 regarding the impracticable Bell Canada International tests and the Cape Bridgewater tests, and the arbitrators’ subsequent response of 21 June 1995, were discussed in a 22 June 1995 fax from the TIO’s office to the TIO special counsel (who was later exempted from all liability for his part in my arbitration).

article-1390977-039ED3AA0000044D-240_224x253[1]

“Could you please have a look at Hughes [the arbitrator’s] letter to John [the TIO] dated 21 June 95 re Alan Smith.

“John wants to discuss it on Monday, and what the approach should be re parties seeking to revisit issues post Arb’n [arbitration]. His position is not to open the can of worms, but would like to discuss strategy with you.”

This ‘can of worms’ relates to the Cape Bridgewater/BCI information (see Telstra’s Falsified BCI Report ‘masked identities‘) that I finally received on 23 May 1995 (two weeks after the arbitrator had deliberated on my claim) which confirmed had Telstra not withheld the 24,000 FOI documents and Dr Hughes had allowed me to submit them as an amendment to my reply to Telstra’s defence I would have been able to prove beyond all doubt my telephone problems were still ongoing on the even Dr Hughes brought down his award. The fact that Dr Hughes, eight months later knowingly lied about this can of worms to Laurie James, President of the Institute of Arbitrators Australia stating he and the arbitration resource unit had assessed all of the 24,ooo documents when it was he who had refused to accept them as an amendment to my claim shows what one wicked lie can do. No wonder the TIO did not want to ‘open the can of worms’ which would then have exposed it was Telstra’s threats which they eventually carried out because I had assisted the Australian Federal Police with their investigations into Telstra’s interception of both my telephone conversations and faxes.q

On the 28 June 1995 letter the newly appointed TIO states, “Our file does not indicate that you took the matter any further…” (see Open Letter File No/52-C). However, when my letter of 24 January 1995 ( Open Letter File No/52-B) was returned to me, the fax footprint on page 2 – 24-01-1995 15:12 FROM CAPE BRIDGE HDAY CAMP TO 036148730 – indicates that it was received at the arbitrator’s fax machine (number 036148730). So why did the TIO advise me that records in his office show no receipt of this 24 January 1995 letter? This has been discussed in more depth in Arbitrator Part One, Chapter Eight. Whoever concealed this 24 January 1995 letter and sabotaged me from proving my case, not only perverted the course of justice, but also ruined 22 years of a family’s life and destroyed a family unit with all that is inherent in it. This is something that cannot be regained, no matter how much compensation is paid.

Telecommunications technical expert and ex-29 year Telstra veteran, Brian Hodge B. Tech (Electronics), MBA, prepared a report dated 27 July 2007:

“Common Channel Signalling No 7 DOES NOT appear or function at Cape Bridgewater RSM. As no switching, analysis, or billing take place CCS7 is not required. …

“As the CCS network transists the call through the network no CCS7 link existed from Warrnambool to Portland at this time (e.g. 1993/94).” (See Main Evidence File No 3, point 5.2)

5[1]On 8 and 12 December 1994, two senior Telstra technicians signed witness statements attesting to the fact that the nearest telephone exchange, which could have possibly facilitated the Tekelec CCS7 monitoring system, was 116 kilometres away in Warrnambool Victoria.

These witness statements are included as exhibits 11 and 12 on a CD, Telstra’s Falsified BCI Report ‘masked identities’ Exhibits 1 to 46, provided in 2014 to the offices of the Hon Tony Abbott, then-Prime Minister of Australia; the Hon Malcolm Turnbull, then-Minister for Communications; the Hon Barnaby Joyce, Minister for Agriculture; the Hon Dan Tehan, (my local federal MP); Senators Scott Ryan and Barry O’Sullivan and the AFP.

Documents in  Telstra’s Falsified BCI Report ‘masked identities’ Exhibits 1 to 46, show Telstra misled and deceived a Senate Estimates committee hearing in September 1997, in relation to tests allegedly carried out in Cape Bridgewater by Bell Canada International Inc. (BCI). When the Senate Estimates committee asked Telstra, on notice, to provide relevant information to support their claims, Telstra knowingly submitted false information; an act legally classified as contempt and punishable by a prison term. No one responsible for this falsified information has ever been publicly held accountable, let alone sentenced, despite Telstra’s stating that BCI used a Tekelec CCS7 Monitoring System to generate an alleged 15,590 test calls through Cape Bridgewater.

My 24 January 1995 letter asked Dr Hughes to acquire copies of all the Bell Canada International Inc. (BCI) test information because Telstra had not provided any of that information to the arbitration process, under FOI.  That would have allowed me to prove that Telstra had knowingly provided at least one of their arbitration witnesses with false information, before that witness provided his so-called ‘findings’ to the arbitrator (see Telstra’s Falsified BCI Report).

Dr Hughes and the arbitration resource unit were all fully aware that Telstra had stopped supplying me with any relevant FOI documents as ‘punishment’, because I had continued to supply the Australian Federal Police with the documents they had asked me for, to assist in their own investigation into Telstra’s unauthorised interception of my telephone conversations and fax transmissions. Even with this knowledge, someone from Dr Hughes’ office still hid my 24 January 1995 letter in order to minimise Telstra’s liability.

Australian Senate

This Hansard is also relevant to my story, because it shows quiet clearly that, when Mr Pinnock addressed the Senate Committee, he was selective about the information he provided. He also implied wherever possible that the COT claimants were as much at fault as Telstra, for the delays in the process when he knew this was not the case.

It was during this Committee hearing, in the presence of Mr Pinnock that Senator Schacht questioned Telstra’s John Armstrong concerning my claims that the BCI Cape Bridgewater tests were fabricated stating: “…As a result of those complaints, did you find that Telstra had to take any action in respect of the BCI report to rectify any inaccuracies or shortcomings in the system”

Mr Armstrong:

“Yes. The basis upon which it was put that the report was fabricated was an apparent clash of dates, as I recall, with two sets of testing. This goes back a couple of years. I believe that claimant raised the matter with the TIO. Telstra went to Bell Canada and raised the clash of dates with it. As I recall, Bell Canada provided a letter saying there was an error in the report”.

Senator Schacht –

Can you please provide us a copy of that letter from Bell Canada…and…I will put that question on notice”.  

Long before Mr Armstrong spoke to Senator Schacht however, Telstra and John Pinnock had already been provided with clear proof that Bell Canada International Inc. could not possibly have used the TEKLELEC CCS7 monitoring system they claimed to have used at Cape Bridgewater, which means, of course, that they could not possibly have carried out any testing at all, on any of the five days they claimed to have carried out that testing, because neither the Cape Bridgewater exchange nor the main Portland exchange could handle the CCS7 system, and the Warrnambool exchange, which was 116 kilometres away, was the closest exchange that could use this system.

If this relevant information had been provided to the Senate as part of Telstra’s response to Senator Schacht questions On Notice, then the Senator would have demanded, on notice, that Telstra explain as to why they had allowed such a fundamentally flawed report to be submitted to the COT arbitration process.

Bell Canada International Inc

Cape Bridgewater Bay

We repeat statements at different times through our various pages so you can fully appreciate Telstra’s offences against the COT cases. In some cases, Telstra appointed a clinical psychologist to swear, under oath, in witness statements attesting to something they knew might not be the case. During my own arbitration process, Telstra supplied a renowned Melbourne clinical psychologist with a technical report they knew was fundamentally flawed, before he interviewed me as part of the arbitration process. After my arbitration was concluded, a witness and I visited this psychologist, in his Queen Street, Melbourne, office and provided him with the truth surrounding this falsified report originally prepared by Bell Canada International Inc. (See Telstra’s Falsified BCI Report ‘masked’) Even though this report proved he was misled and deceived by Telstra before he assessed my mental state, he declined to assist me.

The BCI report alleged that, for a number of hours each day from 5 to 9 November 1993, they generated 13,590 incoming calls to a TEKELEC CCS7 monitoring system installed at the Cape Bridgewater RCM exchange, with a success rate of 99.9 per cent. When Dr Gordon Hughes (the arbitrator) prepared his 11 May 1995 award in my case, he states he placed the BCI report into evidence. The fact that Dr Hughes and the clinical psychologist read this report (see below), before they prepared their individual findings is testament my claims concerning the conduct of my arbitration must be transparently investigated by the appropriate authorities. Providing false information to a clinical psychologist, during litigation and before interviewing me prior to reporting back on my mental state, is unconscionable conduct of the worst possible kind. Of course, after reading the report, the psychologist includes remarks like, “In my professional opinion his preoccupation has become a clinical obsession.” Who wouldn’t think I was mentally unstable, after reading that an international, world standard, communications company from Canada tested the Cape Bridgewater RCM exchange and officially reported they found it to be up to “world standard”.

Two formal, witness statements, dated the 8 and 12 of December 1994, prepared by Telstra technicians, Chris Doody and John Stockdale, confirm the nearest exchange that could accommodate the TEKELEC CCS7 monitoring system was 116 kilometres from Cape Bridgewater in Warrnambool (south-west Victoria).

Furthermore, on 24 October 1997, Telstra provided false information to the Senate estimates committee secretary attesting the BCI Cape Bridgewater Report as factual and that my information provided to the Senate was incorrect. Knowingly providing false information to a Senate estimates committee hearing On Notice is an act of contempt of the Senate.

The fact that Telstra’s lawyer, signed the arbitration witness statement on behalf of the clinical psychologist (see below), and submitted the document into the arbitration, without the clinical psychologist signing it; proves this matter should have been investigated during my arbitration, along with why my faxes were not reaching their intended destination.

Clinical psychologist

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. I found the process of being interviewed by a psychologist, in the saloon bar of the local hotel, shockingly uncomfortable and embarrassing, especially when he kept spreading out different cards on the table as part of this clinical, forensic testing process.

I found the process of being interviewed by a psychologist, in the saloon bar of the local hotel, shockingly uncomfortable and embarrassing, especially when he kept spreading out different cards on the table as part of this clinical, forensic testing process.  It was such an appalling experience that, afterwards, I wrote to Frank Blount (who was Telstra’s CEO then), Dr Hughes (the arbitrator) and Warwick Smith, describing what I had been forced to endure.  Still, however, no-one even attempted to look for answers on my behalf.  In fact, no-one even tried to explain why the psychologist and I hadn’t been allocated a private room.  To make matters worse, this is just one of many examples of how the Australian Government minders, and those administering the COT arbitrations, completely ignored Telstra’s gross misconduct.

It was such an appalling experience that, afterwards, I wrote to Frank Blount (who was the then Telstra’s CEO), describing what I had been forced to endure at the hand of this psychologist (see Introduction File No/12). As it turned out, my letter was written on the same day that Senator Ron Boswell began to demand answers from Telstra’s legal directorate: the Senator wanted know why Telstra had threatened to withhold FOI documents from me after I had assisted the Australian Federal Police with their investigations into Telstra’s unauthorised interception of my telephone and faxes (see Senate Evidence File No 31).

Still, however, there was no attempt made to find out why this psychologist conducted my interview the way he had and nor did anyone confront Telstra about the threats that had, by then, become a reality. In fact, no-one even tried to explain why the psychologist hadn’t been allocated a private room at the hotel, where he could have conducted the interview.  To make matters worse, this is just one of many examples of how the Australian Government minders, and those administering the COT arbitrations, completely ignored the basic rights of the COT Cases, who had all already suffered so much, for so many years, before their arbitrations even began.

One of the most important issues I raised with this psychologist 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 (see Prologue Evidence File No/2), 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 witness statement includes comments such as, “In my professional opinion his preoccupation has become a clinical obsession.”

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 were told tests through the Cape Bridgewater exchange were 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 tests 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.

Worse, however, the day before the Senate committee uncovered this COT Strategy , they also told under oath, on 24 June 1997 see:- pages 36 and 38 Senate – Parliament of Australia/from an ex-Telstra employee and then-Whistle-blower, Lindsay White, that, while he was assessing the relevance of the technical information which had been requested by the COT claimants, he advised the Committee that:

“In the first induction – and I was one of the early ones, and probably the earliest in the Freehill’s (Telstra’s Lawyers) area – there were five complaints. 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 we had to stop these people at all costs”.

Senator Schacht – Can you tell me who, at the induction briefing, said ‘stopped at all costs” .(See Front Page Part One File No/6)

The It is clear from Mr White’s statement he identified me as one of the five COT claimants that Telstra had singled out to be ‘stopped at all costs’ from proving their my against Telstra’. One of the named Peter’s in this Senate Hansard is the same Peter who swore under oath, in his witness statement to the arbitrator that the testing at my business premises had met all of AUSTEL’s specifications, when it is clear from Arbitrator File No/110 that Telstra’s own Customer Call Analysis System (CCAS) data for 29 September 1994 show NONE of the mandatory required 20-tests calls to each of my service lines 055 267 267055 267230 and 055 267260 were generated into my business and held open for the required period of 120-seconds for each completed call. In simple words, the SVT process at my business was not carried out according to the government communications regulatory mandatory specifications. Telstra is fully aware Peter (on page 38 of this Hansard) received advice from AUSTEL, on 11 October and 16 November 1994, regarding the Service Verification Tests (SVT) being grossly deficient. AUSTEL demanded Telstra advise what it intended doing about this deficiency see Front Page Part One File/No 24-A to 24-B. No second SVT tests ever took place at my business during my arbitration. However, in November 2002 (eight months after I sold the business) Telstra tested the business for the new owners, concluded the wiring, cabling and the Telstra-installed infrastructure was corroded and the whole holiday camp was rewired.

This is the same Peter who somehow had the power to direct a Government Regulator regarding who they could release this known faulty SVT information to and who they could not release it to see Arbitrator File No/98 even though the Government Regulator (AUSTEL) knew that the inaccurate SVT results were being used to support Telstra’s arbitration defence of at least four COT Cases claims (which included me)

This same Peter refused to conduct any sort of testing at my premises. Both Peter and David Reid (an ex-Telstra technician, and now with Lane Telecommunications) were present to investigate on-site telecommunication arbitration information. Lindsay White, whistleblower, admitted, under oath to senators, that Peter said I was to be stopped – at all cost – from proving my claim. Peter was able to pressure David Reid, part of the allegedly independent arbitration resource unit, not to test my three service lines that were experiencing ONGOING problems when they visited my business on 6 April 1995. From what happened on this day, it is apparent the government-endorsed arbitration process was designed – NOT to assist the COT cases in proving their claims – but to destroy the credibility of the COT cases’ claims in order to sell off the Telstra network, no matter how degraded the arbitration process found it was.

After viewing the Cape Bridgewater Holiday Camp (SVT) CCAS data dated 29 September 1994 (see Arbitrator File No/110) Brian Hodge, B Tech, MBA (B.C. Telecommunications), on 27 July 2007, prepared a report and on page 23, (see Main Evidence File No 3) concludes:

“It is my opinion that the reports submitted to Austel on this testing programme was flawed, erroneous, fictitious, fraudulent & fabricated, as it is clear that no such testing has taken place as Telstra’s own call charge system DOES NOT record any such activities. Therefore the results are flawed or did not occur”   

Didn’t the statements made under oath by Lindsay White to the Senate Estimates Committee on 24 June 1997, mean anything at all regarding the advice he received from this Peter that we FIVE COT cases had to be stopped at all cost from proving issues such as the falsified arbitration SVT witness statements to the arbitrator (see Telstra’s Falsified SVT Report)?

On 26 September 1997, the new TIO advised a Senate Estimates Committee, that:

“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.”

There is no amendment attached to any agreement, signed by the above-mentioned COT members, allowing the arbitrator to conduct those 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 had 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 procedures?

A breath of fresh air

15 July 1995: AUSTEL’s previous general manager of consumer affairs provided me with an open letter noting:

woman-writing[1]

“I am writing this in support of Mr Alan Smith, who I believe has a meeting with you during the week beginning 17 July. I first met the COT Cases in 1992 in my capacity as General Manager, Consumer Affairs at Austel. The “founding” group were Mr Smith, Mrs Ann Garms of the Tivoli Restaurant, Brisbane, Mrs Shelia Hawkins of the Society Restaurant, Melbourne, Mrs Maureen Gillian of Japanese Spare Parts, Brisbane, and Mr Graham Schorer of Golden Messenger Couriers, Melbourne. Mrs Hawkins withdrew very early on, and I have had no contact with her since. During my time at Austel I pressed as hard as I could for an investigation into the complaints.

The resistance to that course of action came from the then Chairman. He was eventually galvanised into action by ministerial pressure. The Austel report looks good to the casual observer, but it has now become clear that much of the information accepted by Austel was at best inaccurate, and at worst fabricated, and that Austel knew or ought to have known this at the time”

7 August 1995: The TIO wrote to me regarding the impracticable BCI tests. It is not surprising to learn that the person who sent these late FOI documents was the very same person who, 29 months later, admitted he attended TIO council meetings when COT case matters were discussed.

Arbitrator File No/54 shows I requested the information in my original May 1994 FOI application. Here it was, provided on 23 May 1995 (12 months after I requested it) by the very man who wore two hats. Are we to ignore that his presence on the TIO council allowed him to gain inside knowledge of when best to supply the COT cases with requested documents, at a time when it would cause Telstra the least amount of damage?

The stress of dealing with these ongoing issues took its toll and I became drained of energy. The daily business of running the campsite was overwhelming. My partner, Cathy, was handling the workload almost entirely on her own. My self-esteem continued to sink lower and I was unable to put my marketing and promotional expertise, gained through a productive, successful work life, into practice. I was unable to think clearly any more, let alone compose advertisements or talk coherently to people about the camp.

Again and again I found myself dwelling on the events that led to my situation. How could this happen in Australia in the 1990s? Wasn’t this supposed to be a democracy? How could the Liberal Coalition Government continue to ignore me? How could the lawyers get away with hiding the truth in order to prop Telstra up? I couldn’t work out which way to turn next.

Finally I decided to ask for all my claim documents to be returned to me (this was covered in the rules of the arbitration). I waited patiently for weeks, before deciding to drive to Melbourne and collect them personally. I thought I had been as angry as it was possible to be, but no, by the time Cathy and I arrived in Melbourne, I was ready to explode. I controlled my anger though as I walked into the arbitrator’s reception area and spoke to the arbitrator’s secretary, Caroline. Looking back now, I wonder why I expected to have my request met this time; certainly none of my previous requests were met, but I suppose we can always hope. It was not to be, however. Caroline informed me that my documents were not ready and the arbitrator was unavailable.

My emotions finally boiled over and I shouted at Caroline, demanding that she get my documents at once and reminded her that I had put in my request three months before and had now driven five hours to collect them. “I am not leaving this office without those documents.” I told her, “Call the police if you want to, I don’t care. You have my property and I want it back now.” Finally, a young lad appeared from the lifts wheeling a trolley loaded with boxes of documents. He asked me to sort out which were my claim documents. I simply took the lot.

It took Cathy some time to find a parking spot near this busy city office. I finally loaded the documents into the car and we left, unaware that among my own documents there were some that I had never seen before. These proved to be documents and reports that should have been forwarded to me under the rules of arbitration. And they were very, very interesting, to say the least.

p2b[1]

Of course, in a dispute that is settled by an umpire (like arbitration), it is usually mandatory that any information supplied by one party, must be automatically circulated to the other party. This was certainly so, according to the rules of my arbitration. More to the point in my case, information also had to be supplied to the TIO’s legal counsel. Among the documents I obtained from the arbitrator’s office that day, I found a brown envelope full of documents and loose papers, none of which had ever been forwarded to me. This envelope contained copies of a number of letters from Telstra to the arbitrator, including one letter dated 16 December 1994, which indicated there were three attachments:

  1. Letter dated 4 October 1994 from Austel to Telstra
  2. Letter dated 11 November 1994 from Telstra to Austel
  3. Letter dated 1 December 1994 from Austel to Telstra

In the first paragraph of this 16 December letter, Telstra stated:

“You will note from the correspondence that Austel has requested Telstra to provide information relating to charging discrepancies reported by Mr Smith for short duration calls on his 008 service. These issues form part of the subject matter of Mr Smith’s claim under the Fast Track Arbitration Procedure.” 

Clearly, at that time anyway, AUSTEL were most concerned regarding this incorrect charging and, on page two, Telstra state:

“The simplest way forward may be for Mr Smith and Telstra and yourself to all confirm in writing that this information can be provided to Austel if this meets with your approval.”

Why didn’t I receive some indication of this from the arbitrator? I did not receive any correspondence from him in reference to this arrangement, but AUSTEL later wrote to the arbitrator acknowledging receipt of Telstra’s letter of 11 November 1994 and noting that Telstra had agreed to answer, in their defence of my claims, each of the questions put by AUSTEL on 4 October 1994.

In their earlier letter of 1 December, AUSTEL were aware that a number of other Telstra customers in the Portland area had also complained about incorrect charging on their 008 services and so it is not surprising to find them raising their concern about this in their letter of 8 December.

“A major consideration in Austel’s pursuit of the issue raised by Mr Smith was the likelihood that these problems, if proved to exist, would almost certainly affect a number of other Telstra customers.”

In direct breach of the rules of the arbitration, the arbitrator did not forward these letters on to me during the arbitration.

Even more surprising, the arbitrator made no written finding in his award in regard to the massive incorrect charges as shown in my claim documents.  In fact, even though Telstra had notified both the arbitrator and Austel (in their letter of 11 November 1994) that they would address these incorrect charges’ issue in their defence. They failed to do so. Even though the arbitrator obviously knew of this promise, he still allowed Telstra to ignore the issue completely.  This constitutes a conspiracy between the arbitrator and Telstra in my arbitration. I was to uncover even more, when I turned to the loose documents I had come by inadvertently.  These documents related back to the day the COT four signed up for arbitration, on 21 April 1994.

In direct breach of the arbitration rules, the arbitrator did not forward these letters on to me during the arbitration.

Even more surprising, the arbitrator made no written finding in his award regarding the massive incorrect charges shown in my claim documents. In fact, even though Telstra had notified both the arbitrator and AUSTEL (in their letter of 11 November 1994) that they would address the issue of incorrect charges in their defence, they failed to do so. Even though the arbitrator knew of this promise, he still allowed Telstra to ignore the issue completely. This constitutes a conspiracy between the arbitrator and Telstra in my arbitration. I was to uncover even more, when I turned to the loose documents I had come by inadvertently. These documents related back to the day the COT four signed up for arbitration, on 21 April 1994.

IMPORTANT: The three aforementioned letters are part of the 16 October 1995 covert addressing of my arbitration claim documents, fully five months (see below) after my arbitration was deemed complete, and therefore, they were outside the arena of the arbitration process.

Regardless of my arbitration costing me more than $200,000 in preparation fees, AUSTEL still allowed Telstra’s original arbitration defence liaison officer to address the same letters discussing my ongoing billing faults. The arbitration resource unit later admitted (on 2 August 1996) these documents were never passed to the arbitrator for evaluation (see Open letter File No/45-H). However, if we combined Open letter File No/45-A to 45-I with Open letter File No/46-A to 46) it will be obvious to most reading this combination that some sort of conspiracy in order not to address my arbitration billing claims was orchestrated by so far unnamed ‘forces at work’. 

Quite simply, when the resource unit withheld these letters from the arbitrator and I, they allowed Telstra off of the hook from having to address a nationwide network billing problem affecting thousands of their customers. This also left the door open for the government regulator AUSTEL to address these major problems covertly, and in doing so also disallowed me my right to challenge Telstra. I could have replied to Telstra if the letters had been shown in my arbitration.

Did Telstra and the resource unit covertly agree to this arrangement during my arbitration so that Telstra did not have to tell the truth about how bad the 008/1800 RVA problems were? Their letter of 16 October 1995 (Five Months After) my arbitration when attempting to address these issues consists of lies upon lies.

The fact that the 2 August 1996 letter Memorandum of Advice to the arbitrator acknowledging those five letters were NOT provided to him and subsequently I, during the arbitration, should have made the arbitrator demand why these billing issues were NOT submitted as arbitration documents.

However, the arbitrator did nothing with this 2 August 1996 memo; neither did the TIO who was the administrator.

This act was collusion of the worst possible kind.

These faults continued to affect the viability of my business for years after my arbitration was supposed to have addressed these issues.

Again, one of the main reasons we signed up for arbitration, as opposed to the existing commercial agreement, was to have Telstra’s billing system scrutinised. The members of COT wanted this major issue brought to the attention of all Telstra’s customers; in the public’s interest.

This letter from the TIO, dated 7 August 1995, notes:

You have also complained that on 26 May 1995 you received further FOI documents from Telstra which, you state, would have assisted your claim significantly.

“In particular, you claim:

  1. the further FOI documents released confirmed that Telstra internally acknowledged to Bell Canada International Inc. (‘BCI’) that your complaints were correct in suggesting that the BCI testing of your telephone service was “fabricated” as the testing could not and did not take place as reported in the BCI Addendum Report; …
  2. Telstra has knowingly presented to the Arbitrator a “fabricated” testing and evaluation report that “…. was allegedly independently and impartially performed and created” by BCI.
  3. The Resource Unit took into account the flawed BCI report. …

“In order to deal with your complaints expeditiously, I would be pleased if you could provide this material to me within 14 days.” (See Home Evidence File No/35 )

As I began the task of assembling this recently supplied information into a claim of some sort, faults were still occurring on my telephone service lines. This was the ‘hang-up’ fault, which I later learnt was the fault the arbitrator would not allow his technical consultants the extra weeks they requested in order to investigate. By combining Open letter File No/45-C and Open Letter File No/47-A to 47-D) it will once again be seen that the arbitration consultants did not address my 008/1800 billing claims.a-canella[1]

I began to have serious doubts as I worked night after night to compile a claim that most ombudsman would find supported my allegations. And, as suspected, all I created was more evidentiary material that would be denied by the TIO deeming it worthless. Our website evidence absentjustice.com  has been derived from much of the information that I originally supplied the TIO, confirming NONE of my billing claims were investigated.

The TIO – the Telecommunications Industry Ombudsman – was completely useless and by the end of the arbitration it was clear that he supported the defendants.

One person, however, who expressed concern, was my local Federal Member of Parliament, David Hawker. I had alerted him to other local Telstra customers who had told me they were also having problems with the phone service, not only when trying to contact me, but with their own phones as well. This was only three months after my arbitration, which was supposed to have fixed these ongoing problems.

So concerned was Mr Hawker in early 1995, before the Liberal Government came into power, he arranged for some of the COT members to meet with the then-Shadow Minister for Communications, Senator Richard Alston, in his office in Canberra. Senator Alston appeared quite concerned about the way my arbitration was conducted.

According to my record of this meeting, Senator Alston asked for further documents. He was interested in my claims of unethical conduct by various parties associated with the administration of my arbitration and also the way Telstra ignored my claims of incorrect charging and billing problems. In particular, Senator Alston seemed concerned about my claims that Telstra listened into my private phone calls during the arbitration. It appeared that, when we signed for arbitration, Senator Alston had also been under the same delusion as the COT four; believing that the arbitration would be a non-legalistic and fast-tracked process. Another senator who had supported us along the way, Senator Ron Boswell, the National Party Leader, had expressed similar beliefs.

In September 1995 the Hon Senator Richard Alston stated: if any COTs could prove that the arbitrator or any member of the TIO-appointed resource unit had deliberately acted in a criminal manner, or had committed misleading and deceptive conduct (as distinct from sheer incompetence) then Senator Alston and his government would call for an investigation into those matters. The senator’s advisor, David Kennedy, and others, witnessed this statement. Senator Alston at the time we commenced Arbitration Part Two (in 2015) was the president of the Australian Federal Liberal Party, a position that gives him a direct line to the current Australian prime minister, the Hon Malcolm Turnbull. He should be able to initiate an investigation into the deliberate concealment of my comprehensive log of fault complaints from the arbitrator. As Senator Alston and most of his Liberal National Party colleagues know, Australia does not have a statute of limitations for crimes committed, e.g., concealing valuable evidence (in this case the comprehensive log of my fault complaints) from a legal process. Remember, as the commonwealth ombudsman’s records show, the Australian Federal Government endorsed this arbitration process.

This 3 October 1995 letter from AUSTEL to Telstra’s arbitration defence liaison officer and copied to the TIO, states:

“I write concerning charging discrepancies raised in 1994 by Mr Alan Smith of Cape Bridgewater Holiday Camp regarding his 008 service, and the wider issue these discrepancies raise for Telstra’s 008/1800 customers. These matters have been the subject of previous letters from AUSTEL to you and to [Telstra], dated 4 October 1994 and 1 December 1994, respectively. The charging discrepancies have again been raised with AUSTEL by Mr Smith following the conclusion of his Fast Track Arbitration Procedure.”

On 14 October 1995, AUSTEL’s Darren Kearney wrote to me under the subject heading Charging Discrepancies Related to Telstra’s 008/1800 Service:

“As noted in my letter to you of 4 October 1995, AUSTEL has written to Telstra regarding the issues originally raised by you in 1994. The letter refers specifically to charging discrepancies raised in 1994 by Mr Alan Smith of Cape Bridgewater Holiday camp regarding his 008 service. …

“As previously advised, you will be informed of the outcome of this matter.”

Did the arbitration resource unit understand that when they failed to investigate the ongoing billing problems, they did not address the cause of the billing issues? The billing issues included calls registering into the holiday camp lines through Telstra’s Call Analyses Charges System (CCAS) that I was charged for, although the connection actually failed, and a fault where successful calls were terminated but the line remained engaged, thus prohibiting incoming or outgoing calls. The failure of the engaged line to correct itself, leaving the line effectively frozen, was significant.

This fault was only obvious when dialing out from the business office. From 1993 onwards, Telstra often advised us to disconnect the phone at the wall socket and then plug it back in to free up the line. This indicates the fault was in either the phone or the actual phone line. In order to dial out of the office when this particular fault was present (it was intermittent), we had to disconnect the line at the wall after every call.

Faults continued to occur. In January 2003 – seven years after the arbitration process – the new owners of my business wrote to David Hawker MP, seeking help (see Arbitrator File No/118). Ex-Telstra technical guru Brian Hodge, after viewing Telstra’s own fault material, confirms the problems were still affecting the business in November 2006. When the project manager admitted that NONE of the billing issues were addressed during my arbitration (see below), he also admitted to not investigating the faults that caused these billing issues. In fact, in both the draft and final 30 April 1995 technical arbitration evaluation Cape Bridgewater Holiday Camp reports, the consultants state:

“2.23  Continued reports of 008 faults up to the present. As the level of disruption to overall CBHA (Cape Bridgewater Holiday Camp) service is not clear, and fault causes have not been diagnosed, a reasonable expectation is that these faults would remain “open” (See Introduction File No/1-B)

The TIO-appointed arbitration project manager wrote to the TIO on 15 November 1995 advising them that NONE of my billing faults were investigated because the material was not submitted until April 1995.

“A second matter involved 008 calls. Again, this matter was current at a late stage (April 1995) of the Arbitration process. …

“As no further progress was likely to be made on these matters, the formal version of the Technical Evaluation Report did not leave the billing issue open. (See Introduction File No/1-A )

Although the billing issues were certainly still “current” in April 1995, this letter implies that they were not referred to before: this is inaccurate as my billing issues were included in my letter of claim, which Garry Ellicott and Barry O’Sullivan lodged on 15 June 1994. The project manager, once again, misled and deceived the TIO. This same project manager was present at the oral arbitration hearing with the arbitrator and Telstra on 11 October 1994. I informed both the arbitrator and Telstra, in detail, as to the true extent of Telstra’s billing problems within their network. The transcript of this hearing shows that both the arbitration project manager and the arbitrator were given massive (and we repeat – massive) amounts of evidence in relation to wrongly calculated accounts charged to my phone services over many years recorded these facts. (See Open letter File No/45-B)

If my claim advisors, Garry and Barry, had provided me with the costs of the freight charges between Queensland and Victoria and the dates they sent the material on, I could have proved conclusively to the TIO that my billing claim documents were sent in June 1994, as the freight invoice would have shown when it left their Queensland office. No one has attempted to investigate why these documents were kept from the arbitration, not even my claim advisers. Senator Barry O’Sullivan has not replied to my questions as to why he won’t supply the freight costs.

If Mr Kearney is honest, then I am sure he remembers what he told me after I showed him point 2.23 (above). I remember, vividly, that he asked how the technical consultants could sign off their report as complete, when they had not even attempted to diagnose the causes of the faults that Telstra’s CCAS data showed were a major problem for my business. I told Mr Kearney the Canadian technical consultant had spoken to me on the telephone and informed me the report was not signed off because it had not been completed. We address this issue in more detail on another page.

While Mr Kearney was clearly shocked at the evidence contained in my comprehensive log of fault complaints and appeared to empathise with me regarding the arbitrator’s duplicity, he made it clear AUSTEL could not intervene. He requested, almost apologetically, that he be allowed to take the comprehensive log and its attachments – five spiral-bound evidence files compiled by Garry Ellicott and Barry O’Sullivan. I allowed Mr Kearney the privilege of taking this information to Melbourne. However, similar to when I ignored Telstra’s threats (see Senate Evidence File No/31) and continued assisting the AFP with their investigations, I was again deceived. AUSTEL (now ACMA) like the AFP, have refused to assist me when I needed the same assistance they had received from me.

Chapter Fourteen

Was it Legal or Illegal?

16 October 1995: Five months after my arbitration was deemed complete (and hence outside the arena of the arbitration process) AUSTEL allowed Telstra’s original arbitration defence liaison officer to address the 27 May 1994 recorded voice faults my claim advisor Garry Ellicott experienced (see also  Open letter File No/46-A to 46-l). These were some of the billing RVA faults that the resource unit later admitted (2 August 1996) to the arbitrator and TIO that they had withheld from the arbitration process (see Open letter File No/45-H).

Trying to produce a readable claim when the story was so complex, multi-layered and obscured by long-delayed access to necessary information was extremely challenging. My phone and fax lines became lifelines to Garry Ellicott in Queensland. Ex-senior Queensland police officers Garry Ellicott and Barry O’Sullivan (now the Hon Senator Barry O’Sullivan) were heavily involved in my arbitration. Between May 1994 and May 1995, while working on my claim, Garry frequently experienced major problems when he tried to contact me by phone or fax (this was pre-email). Sometimes he attempted to phone me, but received an incorrect recorded voice announcement (termed an RVA fault) telling him that my phone line was ‘no longer connected’; sometimes the line was simply dead. Sometimes he was unable to send faxes to me or I could not receive them; on other occasions when faxes did get through, if they weren’t completely blank pages, they were so distorted they were unreadable.

When Garry attempted to ring me on 27 May 1994 on my 1800 service, he twice reached a recorded announcement telling him my number was not connected, before he finally got through. When Garry rang the Telstra fault centre to complain about these voice messages the operator told him she could not register the fault because the complaint had to come from the customer. Garry’s response was understandably blunt. He asked, ‘How can the customer complain if he doesn’t know I’m trying to reach him?! How can he complain if he is not aware that his incoming callers believe he’s no longer trading?’ When my telephone account arrived I had, of course, been charged for both failed calls.

AUSTEL, allowing Telstra to address arbitration issues outside of my arbitration, prohibited me from legally challenging (as part of the original arbitration process) Telstra’s response to the ongoing billing problems that still affected the viability of my business. AUSTEL did not alert me to this, which meant that I was unable to use my legal right to challenge Telstra on this matter.

When AUSTEL allowed Telstra to address these ongoing RVA billing issues covertly (see Open letter File No/46-L to 46-l) and without the involvement of the original ‘umpire’ (in my case, the arbitrator) AUSTEL could not have known that my claim advisors had already proved to the arbitrator that Telstra’s witness statement was full of inaccuracies. Telstra was able to submit this same witness statement to AUSTEL, fully aware that AUSTEL did not know what Gary Ellicott and Barry O’Sullivan (my claim advisors) had proven.

Anyone who uses a telephone has at some time reached a recorded voice announcement (known within the industry as RVA):

The number you have called is not connected or has been changed. Please check the number before calling again. You have not been charged for this call.’

This incorrect message was the RVA people most frequently reached when trying to ring the Camp. While Telstra never acknowledged this, I discovered much later, among a multitude of FOI documents I received in 1994, a copy of a Telstra internal memo which explained, ‘this message tends to give the caller the impression that the business they are calling has ceased trading, and they should try another trader’.

Another Telstra document referred to the need for:

‘a very basic review of all our RVA messages and how they are applied … I am sure when we start to scratch around we will find a host of network circumstances where inappropriate RVAs are going to line’.

It seems the ‘not connected’ RVA came on whenever the lines in or out of Cape Bridgewater were congested, which, given how few lines there were, was often.

For a newly established business like ours, this was a major disaster, but despite the memo’s acknowledgement that such serious faults existed, Telstra never admitted the existence of a fault in those first years. And with my continued complaints I was treated increasingly as a nuisance caller. This was rural Australia, and I was supposed to put up with a poor phone service — not that anyone in Telstra was admitting that it was poor service. In every case, ‘No fault found’ was the finding by technicians and linesmen.

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NOTE: The arbitration confidentiality agreement, which both Telstra and I signed, prohibited us from exposing these types of documents outside of the arbitration process. Yet Telstra, on 16 October 1995, supplied AUSTEL some of their original arbitration defence documents. Telstra not only breached the confidentiality agreement, they used documents already proven false. If AUSTEL had gathered the main players together and insisted the arbitration issues be addressed because the systemic billing issues affected thousands of Telstra customers, the arbitrator would have been duty bound to reopen the arbitration.

How can AUSTEL (now the ACMA) continue to state that they are independent of Telstra and did not compromise my position? Mr Kearney’s report, from the information I provided him on 19 December 1995 (see below), confirms Telstra incorrectly charged me for telephone calls for more than two years, both before and during my arbitration. Between June 1993 and December 1995, I provided AUSTEL with copies of Telstra System CCAS data, showing that Telstra had a systemic billing problem in their network. Over this period, AUSTEL wrote to Telstra on numerous occasions regarding my claims. One letter, dated 4 October 1994, demanded answers (see Open letter File No/46-F to 46-l) and another letter, dated 2 August 1996, show AUSTEL was very concerned as it appeared this systemic billing problem still existed within Telstra’s network (see Arbitrator File No/115). Will the Australian public ever know how much extra revenue Telstra made during the period in which this systemic billing problem existed in their network?
Mr Kearney’s statements in his February 1996 report (see Arbitrator File No/109) support my original arbitration billing submission (which accompanied our arbitration chronology of faults submission and hence was hidden from arbitration) and show that the billing information that Telstra provided to AUSTEL on 16 October 1995 was fundamentally flawed. The information AUSTEL allowed Telstra to submit in secret did not match Mr Kearney’s findings. In essence, AUSTEL allowing Telstra to address some of my arbitration billing claims in secret, without an arbitrator present and disallowing me my legal rights to challenge Telstra’s submission, severely compromised my future complaints of ongoing telephone problems.

The TIO and Telstra both refused to properly investigate the ongoing problems until 16 January 1998, and then it was agreed (see Main Evidence File No 35 and File No 36) that these problems continued to haunt my business long after the end of my ‘completed’ arbitration. So, in 2015, how can the government say that the government communications regulator did not breach their statutory obligation to me as a citizen of Australia? Particularly, when they allowed Telstra to covertly address issues, which had cost me $200,000-PLUS merely to submit them to an arbitration where ultimately only a part of my claim was assessed.

Three months after my arbitration was declared final, the elusive comprehensive log of my fault complaints that had been concealed from the technical unit (refer Arbitrator File/No 29 & 30) by either the arbitrator or the resource unit, re-emerged. The concealment of this important fault log – possibly the most important document in the whole arbitration process – means that there had to be a sinister motive behind it. If this was not gross misconduct on top of criminal conduct, then what is?

Behind all this deception is a smoking gun that links together all the crimes that were committed against the claimants; crimes that began even before the signing of the arbitration agreements; crimes that continued throughout the arbitrations and crimes that were even committed after those arbitrations had been labelled as ‘complete’.

For years I could not bring myself to believe the rumours that were floating around Melbourne while the TIO was administering the COT arbitrations. I heard that the Institute of Arbitrators Australia, the Commercial Arbitration Act 1984 and the confidentiality clauses in the COT’s arbitration agreement were being used as a shield to hide behind during the COT arbitrations. This would mean that the only way to challenge the arbitrations would be through a formal, legal appeal process, which, according to the Act, is almost unachievable.

Fagin[1]

Various interested parties looking at my story have suggested that the concealment of a document like my comprehensive log of fault complaints, during a litigation process like my arbitration, is considered a jailable offence in many Western democracies. Here in Australia however, this crime was concealed under the confidentiality clauses in my arbitration agreement even though it is now clear that the arbitration was not administered according to the agreed ambit of the Australian Arbitration Act 1984. If the Arbitration resource unit had provided this log for assessment, as they should have, it would have instantly been obvious that the telephone and fax problems were STILL occurring, even as my arbitration proceeded

In connection with these problems, in August 1994, George Close, my technical advisor, produced an arbitration report using Telstra’s own data showing that, between December 1993 and February 1994, two of my main service lines suffered blockage periods of up to 47%. George could not report occurrences between February 1994 and April 1995 because Telstra refused to supply any data for that period, even under the official arbitration discovery process. Even if we had received that extra data, however, the deletion of the arbitrator’s technical consultants’ request for an extension of time to investigate the ongoing billing issues meant it is unlikely this period have been inspected anyway.

Garry Ellicott reported the two RVA faults to Telstra on 27 May 1994 and I reported these faults to both AUSTEL and the TIO. My main complaint to the TIO was that I should not even have been in arbitration while these faults continued to destroy my business AND also interfered with the preparation of my claim. The TIO however would not listen to these valid points, but informed me that the arbitration technical unit would investigate these matters when they visited Cape Bridgewater as part of the arbitration process. As Open letter File No/46-F to 46-l) shows, and we discuss elsewhere, the arbitrator stopped the technical unit from carrying out that investigation at all. In a 16 February 1996 letter to the then-president of the Institute of Arbitrators Australia, the arbitrator states:

 “Mr Smith’s assertion on page 4 that a technical expert refused to discuss technical information at his premises on 6 April 1995 is correct – in this regard, the technical consultant was acting in accordance with his interpretation of my direction which prohibited him from speaking to one party in the absence of the other party at any site visit”. (See Open letter File No/45-A to 45-I and more importantly File No/45-G page 2, bullet 2)

twist_fagin[1]

I am sure, if Garry Ellicott and Senator Barry O’Sullivan had known the arbitrator would stop the technical consultants from investigating most of the $51,000-worth of work they had prepared on my behalf, they would have demanded an investigation into the arbitrator’s refusal of the extra weeks his own technical resource unit requested to investigate my claims properly. Barry and I both signed each of the 16 pages of my official arbitration agreement. I believe, if Barry had known that none of the ongoing problems with my service lines would be addressed during my arbitration, despite those issues causing billing problems and interfering with my arbitration claims, and if he had known the arbitrator would have ‘no control over the process’ because it was going to be ‘conducted entirely outside of the agreed ambit of the arbitration procedures’ then he would have refused to sign the agreement at all, and probably would have advised me not to sign it either.

So why did the arbitration project manager stop the TIO from investigating my valid claim that the billing faults had been included in my elusive comprehensive list of fault complaints? What was the project manager so worried about that led him to write something he knew was an outright lie (see Open letter File No/45-A)? Why did he infer that I only submitted my billing claim documents in April 1995 (late in the arbitration) when arbitration documents show AUSTEL and Telstra was discussing these same billing faults as early as October and December 1994 (see Open letter File No/46-A to 46-l)?  M Rundell (Arbitration Project Manager) his character, like Charles Dickens’ notorious character, Fagin, is more than just questionable. This one deliberate lie cost me a proper transparent investigation. Sadly, the COT story is not a stage play, it is real. The villains appointed to run the process were hand-picked from among Australia’s business and government executives, which is probably why my claims have never been properly investigated. It seems also, sadly, that the scale of the power held by this small, but elite circle of influential people is growing, year by year.

Scrambling through this maze of deceit and deliberately misleading advice, continually takes us back to one important question: Why? Why would highly paid professionals like the arbitration project manager decide to mislead and deceive an ombudsman? He must have known that, if he had not misled the TIO, my ongoing 008/1800 problems might finally be addressed as an amendment to the arbitration process that had been facilitated by the government regulator to address these type of ongoing problems.

I provided the TIO with enough evidence to suggest my faxes were either being intercepted en route to the arbitrator’s office or the arbitrator’s office was not passing them on to Telstra’s defence unit so they could be addressed as part of the arbitration procedure. This ‘non-legalistic’ arbitration was cursed with confusion and complications from the very beginning and even now no one seems willing to explain why so many of my claim documents disappeared during the process. When I found out that the technical resource unit only assessed my phone and fax faults from February 1988 to the start of 1994 I became even more convinced of a conspiracy of immense proportions. A conspiracy that not only involved the arbitrator, Telstra and those who administered the procedure, but also involving people higher up within Telstra; people who had the power to hide evidence. How can an Australian-owned corporation like Telstra fabricate reports and why are there no safeguards in place to check and prevent this from happening?

PLEASE NOTE: when Telstra provided their submission to AUSTEL on 16 October, 1995 Open letter File No/46-L they provided no advice of the date they had rectified this RVA message.  AUSTEL’s Chief Engineer, Cliff Mathieson, is fully aware I was still complaining about this RVA message affecting the viability of my business up until late 1996.  From December 1996 through to March 1997, I was still getting second and third-hand information from Singles Club patrons, (who were aware of this RVA fault), they continually persisted until they got through.  Their comments were that it took two or three times to get through.  Sadly, it is apparent that many customers would not bother having to try a second or third time!

Dr Hughes wrote to the TIO on 23 January 1996, 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.”. (See Open letter File No/45-D)

It is confirmed from Chapter Three in our Prologue page (see below) that not only were these 24,000 documents not viewed by Dr Hughes and his resource unit it was he who refused me the extra time I had requested to submit two reports (into arbitration) which I had collated from these late received 20,000 FOI documents aware because they 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 me dearly and continues to cost me dearly until these lies are investigated.

Had Dr. Hughes sidestepped John Pinnock, and instead made a full disclosure of the true facts surrounding my claims, the matters I am 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 our Prologue page, you can decide for yourself who is telling the truth concerning these late-released 24,000 alleged-read documents.

A further letter from Dr Hughes to the TIO on 15 February 1996 states:

“I would appreciate your confirmation that there is nothing in the proposed letter which would embarrass your office or jeopardise the current arbitrations.

“You may consider it appropriate for you to provide an independent letter of support. This is of course a matter for your discretion.” (See Arbitrator File No/43)

If Dr Hughes had conducted my arbitration in accordance within the ambit of the arbitration procedures, why would he seek confirmation from the TIO?

Arbitrator Part Two/Chapter Fifteen and Introduction File No 1-E confirm John Rundell advised the TIO, on 13 February 1996, the arbitration financial report, addressing my losses and which he was responsible for ensuring was factual in every detail, was not a complete report when submitted into arbitration for response by both Telstra and my financial adviser. In his same letter, the project manager states, “You should be aware that the Brighton CIB to interview Mr Smith in relation to criminal damage to my property…” When I read this comment, six years after it was written, I contacted the Brighton CIB (Victoria Police) who said they never intended to interview me regarding this matter and, in fact, they had no record of me being a suspect in any criminal matter at all.

On 17 February 1996 Dr Hughes wrote to to Laurie James, President of the Institute of Arbitrators (see point 3 above) attaching a copy of John Rundell’s letter of 13 February 1996 to the TIO). In this letter Dr Hughes advised Lauie James that:

“I consent to you disclosing this letter to Mr Smith, save that I do not consent to the disclosure of the attached correspondence from third parties.” (See Prologue Evidence File No/8-E)

Long before Mr Rundell and Dr Hughes wrote their letters in February 1996, AUSTEL, the government communications regulator, officially advised Mr Pinnock (see Open letter File No/46-K, dated 3 October 1995) and Mr Rundell (see Open letter File No/45-A, dated 15 November 1995) my concerns were completely valid and that NONE of the billing claim documents I legitimately raised in my 1994/95 arbitration process were investigated (or even addressed) during my arbitration process. Still however Laurie James was deliberately misled and deceived, not just by the arbitrator but also by the official administrator of the same arbitration. Mr James was the very person who could have asked so many seriously disturbing questions about why my arbitration was not conducted according to the ambit of the arbitration procedures.=

Anyone reading my letter to Gareth Evans, dated 1 January 1996 (see Open Letter File No/49), will conclude I raised some very serious issues, which affected all the arbitrations still in progress.

Dr Hughes’ letter to Laurie James, under the heading “Letter to Senator Evans,” states:

“Mr Smith provided you a copy of a letter to Senator Gareth Evans dated 4 January 1996. I presume you require me to comment on those aspects of the letter which reflect upon my conduct as an arbitrator.

“The letter to Senator Evans is littered with inaccuracies. Some examples are:

  • contrary to Mr Smith’s assertion on page 3, his 24,000 (sic) documents were all viewed by me, Ferrier Hodgson Corporate Advisory, DMR Group Inc (Canada) and Lane Telecommunications Pty Ltd in accordance with the arbitration procedure.” (See Open letter File No/45-G and Open Letter File No/49)

Why did Dr Hughes deceive Mr James in relation to these 24,000 documents, which Dr Hughes and his team could not possibly have read and collated? Why did the arbitrator tell Mr James that all those documents were assessed?

The Canadian and Australian technical consultants’ 30 April 1995 reports, under the heading “Cape Bridgewater Documentation,” states “More than 4,000 pages of documentation have been presented by both parties and examined by us.” (See Arbitrator File Nos/29 and 30) These reports are covered more thoroughly in other pages.

And at point 2.2 on page 4, in Dr Hughes’ final award, dated 11 May 1995, he notes, In all, I have read in excess of 6,000 pages of documentary evidence submitted by the parties.” (See Prologue Evidence File No/9-A)

If either Mr James or Senator Evans were provided with the truth surrounding these 24,000 documents, my arbitration matters could have been completed in early 1996. So far, the arbitrator and the TIO office have managed to avoid being called to account for their devious and unethical conduct. Will they ever be held accountable?

Arbitrator File No/45 shows that on 30 March 1995 – 11 months before the arbitrator’s letters to Mr James – the arbitrator’s own resource unit wrote to the TIO outlining the progress of my arbitration. The timeline shows I advised them I received FOI material after my claim was finalised and that I “did not have the ability to examine these documents” in order to add to my claim.

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 these 24,000 documents were not related in any way to the previously withheld briefcase documents as well as having no identification or schedules from whence they were sources, 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?

My facsimiles and subsequent follow-up telephone conversations, on 4 and 5 May, advised Dr Hughes of the nightmare these late 24,000 FOI documents caused for me and I asked for an investigation into why so many FOI documents, without proper FOI schedules, were sent to me when they clearly belonged to Ann Garms and Maureen Gillan.

On 5 May 1995, Dr Hughes wrote,

I refer to your telephone message of 4 May and your facsimiles of 4 and 5 May 1995 and advise I do not consider grounds exist for the introduction of new evidence or the convening of a hearing at this stage.” He also reiterated his previous instructions: “any comments regarding the factual content of the Resource Unit reports must be received … by 5:00pm on Tuesday 9 May 1995” (See Call For Justice File No 88).

Dr Hughes cared little about the justice he denied me by not allowing me to submit those of the 24,000 FOI documents I could decipher. He also refused to convene a hearing to determine why Telstra’s threats – to withhold all future relevant FOI documents from me – came to fruition.

How does an ordinary citizen expose the truth about a high-profile arbitrator like Dr Gordon Hughes, who allowed his wife’s name to be used in a letter from John Pinnock (the then Telecommunications Industry Ombudsman) to the President of the Institute of Arbitrators Australia, stating that: Mr Smith has admitted to me in writing…” … to telephoning the arbitrator’s wife at 2 o’clock one morning’ (see ‘Lies by the TIO’ below) when no such phone call and no such admission ever took place? Even worse, Dr Hughes received a copy of Mr Pinnock’s letter so he was well aware that this 2 a.m. statement was false, and had been written with the sole aim of discrediting my character and so preventing the President of the Institute of Arbitrators Australia, Laurie James, from investigating my claims against Dr Hughes. When Dr Hughes allowed his wife’s name to be dragged into a situation such as an investigation by the Institute, particularly when he knew that what was being said about that alleged 2 a.m. phone call was not true, shows that it is not me who is lacking in good character, it is Dr Hughes. So why didn’t Mr. Pinnock just provide Mr. James with a copy of my so-called ‘admission’? Because he couldn’t: because NO such ‘admission’ was ever made. To discover why it was so important for Dr Hughes and Mr Pinnock to discredit me, and to stop Mr James from investigating this matter, go to Tampering With Evidence/Chapter 2.

In simple terms, even though I chose what I believed was the most appropriate avenue to raise my concerns about the unethical way my arbitration had been conducted, i.e. through the Institute of Arbitrators Australia, that avenue was closed by the very people who had so much to lose if there was any chance of the truth actually being uncovered and exposed by the Institute.

Lies by the  TIO

On 27 February 1996, John Pinnock wrote to Laurie James President of the Institute of Arbitrators Australia (see point 4 above), attacked 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 Hugheshome 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.

Researching the following 24 June and 25 June 1997 Senate Hansards has caused me much grief. These two Hansards show many senators found heavily against Telstra employees for their unethical practices, not just towards the COT cases and our families but also against fellow Australian citizens, as the people of Australia fully owned Telstra when this rorting by Telstra employees flourished. Our website shows it was not just rank and file members within Telstra who acted unethically towards the COT cases: this conduct was sanctioned by Telstra executives – who were also on the Telstra and TIO board – as the following COT strategy shows.

On 24 June 1997 (the day before this COT Strategy was exposed), 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 months into my arbitration, I informed the arbitrator that Telstra was refusing to supply me with any more FOI documents because I had given sensitive FOI documents to the Australian Federal Police to assist their investigations into Telstra’s interception of my telephone conversations. I received not one single response concerning these threats – from neither the arbitrator nor the TIO.

Thus, the threats became a reality. What is so appalling about the 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. Material, which could further support my claims before the arbitrator, was denied me.

On 25 June 1997, the day after the Senate committee were told we five COT cases had to be stopped at all cost from proving our claims, a number of senators discussed Telstra’s legal firm and its COT strategy, dated 20 September 1993. This strategy advises how Telstra can conceal technical information from the four COTs under Legal Professional Privilege, even though the documents were not privileged (see SENATE Hansard, page 5169). The COT strategy is available at Prologue Evidence File No/1-A.

The author of this COT strategy is the same lawyer with whom I was forced to register each of my phone complaints, in writing, before Telstra would address these problems. 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 willpower 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 (see Prologue Evidence File No/2), 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 witness statement includes comments such as, “In my professional opinion his preoccupation has become a clinical obsession.”

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 were told tests through the Cape Bridgewater exchange were 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 tests 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.

In the same Senate Hansard, dated 24 June 1997, in which Lindsay White says he was told to “stop these people at all costs”, similar injustices COT case Sandra Wolfe experienced during a Mediation Process in 1997 are discussed. These injustices included her having a warrant executed against her by Telstra employees under the Queensland Mental Health Act (see pages 82 to 88, Introduction File No/9). Had Sandra not acted in the manner she did, it is possible she could have been lost in an institution for the insane. Addressing Telstra, Senator Schacht says:

“No, when the warrant was issued and the names of these employees were on it, you are telling us that it was coincidental that they were Telstra employees.” (p87)

Is this warrant issued under the Queensland Mental Health Act, against Sandra Wolfe, akin to the false information provided by Telstra to the clinical psychologist before he assessed my mental health? In my case, the consultation by this psychologist was not conducted in a private surrounding, but in the Richmond Henty Hotel’s saloon bar!

When Telstra’s lawyers (whom the government assured us COT cases would not be used in our arbitration) provided the witness statement prepared by this clinical psychologist, it was only signed by a lawyer Wayne Maurice Condon, from this legal firm Freehill Hollingdale & Page on 6 December 1994, and bore no signature, of the psychologist, Ian Jobin.

This never-ending saga

As I continue to write about all that really transpired, not just during my own government-endorsed arbitration but also during the other COT arbitrations, I am left floundering; I still struggle to understand why our arbitrations were conducted outside the agreed ambit of the arbitration procedures (see TIO Evidence File No 4-A to 4-B.  Every time I go back to finalise various parts of this combined COT story, and I re-read all the complex details that make up this whole, terrible situation that the Telecommunication Industry Ombudsman, the Arbitrator and his Resource Unit allowed us to struggle through, my anxiety levels instantly begin to rise alarmingly.

The situation gets worse, though, because I also find I am just struck with sheer unbelief that this happened in a democratic country like Australia; I seem to be unable to find the right words to finish off this dreadful saga. It seems that, no matter what I do, I just can’t find a way to adequately explain this disaster that we have all struggled with for so many years. One part of the problem is, of course, that none of the COT cases – all honest Australian citizens – should ever have been forced into a situation that would eventually leave us all dealing with so many still-unaddressed crimes: crimes that were committed against us while we were officially part of a government-endorsed, legal, arbitration process. There are two parts to this problem for the COTs. Firstly, there are those who are now identified below, who worked with Telstra to carry out those still-unaddressed crimes. And secondly, there is Telstra, an organisation with so much power that it could stop any authority (including government authorities) from investigating those crimes, as the many stories are shown in the above menu bar so clearly show.

This is the story of a group of ordinary small-business people fighting one of the largest companies in the country. For years, the then-government-owned Telstra (in the early days called Telecom) refused to address the many phone problems affecting the ability of the COT Four to run their businesses, while telling them ‘No fault found.’

Our story shows:

  • how, when the COT Four presented their dispute to the government, they were manipulated, pressured and squeezed into an unfair and costly arbitration;
  • how Telstra and its legal defence team perverted the course of justice in the arbitration process by such dubious strategies as intercepting faxes and conversations (bugging) and failing to deliver crucial FOI documents (or delivering them months, even years, too late and often so highly censored that little intelligible remained). Telstra even destroyed documentary evidence and fabricated evidence;
  • how central points in my claim at arbitration were ignored by the arbitrator and how no amount of effort to have these points addressed bore any fruit;
  • how, in the course of all these travesties, the regulatory bodies – AUSTEL (for the government) and the TIO (for the carriers) – failed to exercise any control over Telstra, to the point where they could reasonably be seen as acting in concert.

Together, these travesties spell a breakdown of justice, way out of proportion to the issue we began with: people asking that their phone services be guaranteed to work to a reasonable standard, so they can reliably conduct their businesses.

What sort of the faults are we are talking about? Customers, or potential customers, trying to ring in, only to get a dead line, or for the phone to ‘ring’ without being picked up, as if no one was there, or to be met by a recorded announcement saying the number is not connected at all. And when calls did connect, the connection dropped out, as might happen today on a mobile, but we are referring to landlines. Faxes also went missing in the network, or only blank sheets arrived.

Each COT member assumed, as most telephone users would, that Telstra’s skilled technicians would easily find and fix their phone faults; however, ‘No fault found’ was the constant refrain and the problems continued unabated throughout the course of our arbitrations and for years afterwards, with disastrous effects on our businesses. This seemed incomprehensible: everyone had a phone and the system is supposed to work for everyone. What was going on?

And why did it seem that everyone was protecting Telstra and turning a blind eye to unlawful behaviour?

  • Withholding important discovery documents in an arbitration procedure is unlawful;
  • Tampering with evidence in an arbitration is unlawful;
  • Relying on defence documents that are known to be flawed, in an arbitration, is unlawful;Phone tapping of conversations without a warrant is unlawful.

Someone within Telstra must have authorised this criminal conduct.

Despite being promised the documents we needed if we agreed to arbitration, our FOI-requested documents have never been made available, and we still do not have those documents to this day.

In my case, the Schedules of Material received by the arbitration process does not list 42 separate sets of correspondence, which were faxed to the arbitrator’s office (some with attachments). Front Page Part One File No/1 shows the arbitrator’s secretary advised Tony Watson (of Telstra’s arbitration defence unit) that, on 23 May 1994, six of my claim documents were not received at the arbitrator’s fax machine. It is clear from my Telstra account that I was charged for those six faxes leaving my office, yet, when this matter was exposed, no one from the arbitrator’s office nor the TIO’s office allowed me to amend my claim so that these proven “non received” claim documents could be valued by the arbitrator in support of my claim.

These collusive acts destroyed normal life for me and my partner, Cathy. A secret, concealed report, prepared by the government concerning my valid complaints but withheld from the arbitrator, found at least one local Portland technician concealed, from other Cape Bridgewater customers and me, the true extent of our phone problems. Point 76 in this report states,

“One disturbing matter in relation to Mr Smith’s complaints of NRR [not receiving ring] is that information on other people in the Cape Bridgewater area experiencing the problem has been misrepresented from local Telecom regional manager to a more senior manager.” (See Manipulating the Regulator).

The fact that this person misled senior Telstra management concerning the truth of the real situation at Cape Bridgewater is serious enough. However, even worse is that when Telstra presented its arbitration defence of my claims to the arbitrator concerning the Cape Bridgewater problems, the sworn statements given under oath on these NRR issues were based on the incorrect information this Telstra employee gave management. Therefore, the arbitrator relied on false advice supplied by Telstra management, who were perhaps unaware they were submitting incorrect information (under oath) concerning the Cape Bridgewater telephone exchange.

That this Telstra employee’s disgraceful conduct was concealed by the government communications regulator during an arbitration process is serious enough, but had the arbitrator and I been advised on what the regulator had uncovered, we could have ensured this local Telstra employee’s witness statement was taken out of the arbitration process altogether. I have since proven this same Telstra employee person lied under oath in his witness statement, about another totally different matter altogether, yet the wording in the arbitrator’s award confirms he accepted this person’s statements.

Many bureaucrats who commented on our fight for justice branded the members of COT as frivolous and vexatious litigants, but they missed a number of important facts. Firstly, most bureaucrats have never attempted to run a small business of any sort, particularly a business where the loss of four or five telephone calls a day is enough to completely destroy that business (especially if those lost calls continue to occur). The arbitrator handed down his findings based on Telstra’s claim, sworn to under oath, that the complaints raised during arbitration were fully rectified. This was not the case.

Those same bureaucrats also fail to understand that my ongoing telephone problems were not investigated or fixed, even though the Australian government promised me that ALL the problems would be fixed as part of the arbitration process.

Chapter Fifteen

to be continued

It is also important to advise those reading absentjustice.com that in 2015, when I commenced writing about the COT Cases injustices I raised my concerns that the COT arbitrator (a renowned leading legal articulate) had clearly minimized Telstra (the defendants) liability by only awarding past against Telstra for past damages caused by their inadequate telephone network and NOT the faults still affecting their businesses during the arbitration processes. This working for the defence (the government who then owned Telstra) in the manner he did is not different to what has now been exposed in the Victorian Media where a leading lawyer was working against her client and feeding information to the police. I doubt whether my story will prompt a Royal Commission but I ask the reader to click onto the following link (Here’s hoping royal commission will sweep out corrupt police, lawyers) concerning this corruption in the Victorian Police and read it in conjunction with the various pages on absentjustice.com because of the similarities of what happened  in the COT arbitrations.

 

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