The combined arbitration agreement and confidentiality clause, crucial elements of our legal process, were modified after Maureen Gillan, the first of the four COT claimants, affixed her signature on April 8, 1994. Leading up to this moment, a detailed discussion regarding the agreement took place on April 7 and 8 during a tense two-day lockdown at the government offices of AUSTEL (now referred to as ACMA), the authority overseeing telecommunications in Australia. The atmosphere was charged with anticipation as Amanda Davis, the ex-general Manager of AUSTEL, provided the agreement to Graham Schorer, our spokesperson for the COT Cases, amid these discussions.
On the second day of the lockdown, Schorer made a significant move—he carefully copied twelve replicas of the agreement, ensuring that everyone present, including myself and fellow claimant Ann Garms, received a copy. This agreement would later be referenced extensively in the draft of the COT Cases report, dated April 13, 1994. During our discussions, Robin Davey, the Chairperson of AUSTEL, urged us—Mr. Schorer, Ann Garms, and I—to sign it, highlighting the significance of clauses 24, 25, and 26, which granted us the invaluable right to pursue legal action against any parties involved in the arbitration process for negligence or any form of misconduct.
Following our intense discussions, a copy of this pivotal arbitration agreement was carefully hand-delivered to Senator Richard Alston’s office on St Kilda Road, just a short stroll from the bustling AUSTEL offices on Queens Road. The environment of the AUSTEL lockdown was shrouded in strict confidentiality; a vigilant doorman meticulously checked all outgoing correspondence during our two-day meeting, safeguarding the sensitive information contained within the “AUSTEL 1994 COT Cases report’ dated 13 April 1994.
Then, on April 19, 1994, a significant development occurred. A copy of the same arbitration agreement, a replica of the one signed by Maureen Gillan on April 8, was faxed from Dr Hughes to the appointed arbitrator to two esteemed lawyers—William Hunt LLB and Alan Goldberg QC (as recorded on each faxed page of the agreement). This document concerned the three remaining arbitration claims of Ann Garms, Graham Schorer, and myself, marking a crucial step in our ongoing negotiations.
William Hunt and Alan Goldberg agreed for us to sign the document, emphasizing that while this legal agreement had undergone some modifications, it bore notable differences from the Fast Track Settlement Proposal (FTSP) that Telstra and the four COT Cases had previously signed in November 1993. Unfortunately, Dr Hughes and Warwick Smith have since refused to uphold the FTSP agreement despite it being formally executed. Dr. Hughes was the only assessor, while Warwick Smith was the administrator of the FTSP. Our hopes for resolution were hinged on this arbitration agreement, especially in light of Telstra's consistent refusal to comply with the stipulations of the FTSP.
During this critical period, William Hunt mentioned that his earlier discussions with AUSTEL regarding this agreement led him to believe that clauses 24, 25, and 26 were designed to ensure transparency throughout the process. However, despite Warwick Smith’s assurances that these clauses would remain unchanged, clause 24 was unexpectedly altered. This transformation occurred despite Telstra’s written guarantee that the negligence clauses would stay firmly intact, as the TIO legal counsel and arbitration consultants were expected to act with the utmost professionalism throughout the arbitration proceedings.
This letter dated 23 February 1994, from Steve Black, Telstra’s arbitration liaison officer, to Dr Hughes (the pending arbitrator) notes:
“Telecom is of the view that Special Counsel and the Resource Unit should be accountable for any negligence on their part in relation to the arbitration process, given that these parties are acting in their capacity as experts. Therefore, this clause should not be amended so as to include an exclusion from liability for Special Counsel and the Resource Unit”. (See Arbitrator File No/3)
Readers need to grasp that Dr. Hughes and Warwick Smith have been invoking the confidentiality agreement attached to the modified document as their rationale for neglecting to address my claims. Confidentiality agreements are indeed serious commitments; however, in the troubling cases of Ann Garms (who has since passed away), Graham Schorer (who is gravely ill), and myself, the confidentiality agreement was manipulated after our two lawyers, the government regulator, and two senators, including Senator Ron Boswell, were left unnotified of these significant changes.
Corporate crime does not usually involve a bag of money.
On 26 September 1997, Telecommunications Industry Ombudsman John Pinnock formally addressed a Senate estimates committee refer to page 99 COMMONWEALTH OF AUSTRALIA - Parliament of Australia and Prologue Evidence File No 22-D). He noted:
“In the process leading up to the development of the arbitration procedures – the claimants were told clearly that documents were to be made available to them under the FOI Act.
“Firstly, and perhaps most significantly, the arbitrator had no control over that process, because it was a process conducted entirely outside the ambit of the arbitration procedures.”
No amendment was attached to any agreement signed by the first four 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 in our arbitration agreement when that agreement did not mention that the arbitrator would have no control because the arbitration would be conducted entirely outside the agreed procedure?
In March 1994, Graham Schorer (COT spokesperson) and another COT member suffered break-ins and lost business-related documents. That made us all much more vigilant. I found no evidence of a break-in, but I did notice that two diaries from 1987 to 1989 were missing. I decided to remove my official business diaries from my office. From then on, I transferred all that pre-recorded information to them weekly from my wall calendar and unofficial notebooks. This meant that any forensic testing of those diaries would have seen several recorded statements added after the original information had been recorded. At the advice of the AFP, I did this to have two copies of everything I had documented while the AFP was investigating Telstra's unauthorised interception of my phone and faxes Chapter 4 Government spying.
I explained to both the arbitrator, Dr Gordon Hughes and the first administrator to my assessment, Warwick Smith process, that because the Australian Federal Police had taken access to some of my FOI documents see AFP transcripts Australian Federal Police Investigation File No/1, which confirmed much of my private and business affairs had been documented by Telstra in their records going back as far as 1992, and could have only obtained that information from intercepting my faxes or telephone conversation.
It was during this period that the AFP had stated the importance of me not submitting any future security business information to the arbitrator, such as names and addresses of my single club clients, under any circumstances, unless the arbitrator could assure me that this material would not be provided to Telstra.
Of course, the AFP could not allow Telstra access to the phone and fax numbers of my female single club members while Telstra was still under investigation for unauthorised interception of my telephone and faxes. Some female members' names and phone numbers were already on two of the documents I had provided to the AFP, which is why the AFP was so concerned.
Nevertheless, when it came to his summary of my award for damages, the arbitrator stated:
"I have considered, and have no grounds to reject the expert evidence provided by Telecom from Neil William Holland, Forensic Document Examiner, who examined the claimant’s diaries and because of numerous instances of non-chronological entries, thereby causing doubt on their veracity and reliability".
I contend that if the arbitrator had allowed these fault complaints, i.e.' extracts taken from notebooks and wall planners, which I had then entered into my central diaries so that I had two copies of all reference material as suggested by Detective Superintendent Sergeant Jeff Penrose of the Australian Federal Police to be submitted into arbitration as evidence, and provided them to Telstra’s Forensic Documents Examiner, Mr Holland would have had a clear understanding of what the exercise books were and would have realised there was no attempt at deception.
The ninety-one questions in the Australian Federal Police Investigation File No/1 show I should not have been forced to continue with my arbitration while Telstra was allowed to screen/intercept my arbitration-related document en route to the arbitrator and my claim adviser. There is no mention in the arbitrator award that many of my claim documents had disappeared, as noted by the arbitrator secretary and his arbitration technical consultants DMR & Lane, who notified him on 30 April 1995 that they had still not completed their investigations and needed further weeks to do so Open Letter File No/47-A to 47-D because "A comprehensive log of Mr Smith's complaints does not appear to exist," refer to Chapter 1 - The collusion continues.
It did exist because this was the comprehensive list of my phone complaints I provided the government communications regulator AUSTEL in December 1993, which assisted them in preparing their own report on my call losses. Refer to points 2 to 212 in AUSTEL’s Adverse Findings, dated March 1994. Who concealed this comprehensive log of my phone complaints so that the arbitration technical consultants had nothing substantial to work with?
Had the arbitrator, Dr. Hughes, carried out his arbitration with the diligence it warranted, he would have factored in all available evidence, including the critical details from the Telstra Portland Cape Bridgwater telephone exchange logbook. This logbook illustrated the persistent nature of the telephone issues plaguing the Portland and Cape Bridgewater region. The evidence is clear: Dr. Hughes's technical consultants explicitly warned that without a thorough investigation into the underlying causes of the documented telephone faults, these problems would continue to be categorized as "Open" and unresolved. The urgency of these concerns is articulated in the DMR & Lane report submitted to Dr. Hughes on April 30, 1995, which underscores the necessity for a comprehensive examination of the ongoing issues.
The statement made by DMR & Lane at point 2.23 in their 30 April 1995 report provided to the arbitrator as their final report when it was not complete has haunted me ever since the conclusion of my arbitration i,e;
“Continued reports of 008 faults up to the present. As the level of disruption to overall CBHC service is not clear, and fault causes have not been diagnosed, a reasonable expectation that these faults would remain ‘open’,” (see Exhibit 45-c -File No/45-A)
