There was very little to salvage 

By April 1994, I was in a difficult position, having lost more than half of my bookings. The emotional toll was overwhelming, leaving me mentally drained and on the edge. In a desperate bid to maintain my stability, I sought help from two different psychologists, hoping their expertise would help me cope with the mounting pressure.

What I was unaware of during this tumultuous time—when I was struggling to save both the Cape Bridgewater Holiday Camp and my own mental health amid the storm created by my dealings with Red China—was the darker narrative unfolding in the background. Local employees and middle management within Telstra secretly advised the government, including my Federal Member of Parliament. This insidious information eventually reached Dr. Gordon Hughes, a commercial assessor who would later take on the role of the COT arbitrator.

Their assertions were alarming. They labelled my concerns as frivolous and downplayed the issues affecting my business as trivial. This characterization was a blatant falsehood crafted to obscure my real struggles. The truth behind my complaints was far more severe, as revealed in the two Telstra Freedom of Information documents submitted under the heading of Malfeasance. These documents showcased the misconduct I had endured, starkly contrasting the narrative being spun by those in power.

 

Malfeasance

A Telstra minute (fault report), dated 2 July 1992, concerning the Portland AXE telephone exchange which my business was trunked through states:

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

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

This one Telstra minute, dated 2 July 1992 (on its own), shows what a liar the Telstra Corporation was and still is. 

The author of this AXE document also signed an arbitration witness statement (under oath) dated 12 December 1994, which tells an entirely different story from what he and this document show concerning the Portland Ericsson AXE telephone exchange. In his witness statement, he states, “I had perceived problems,” but then says he had not observed any deficiencies in the service provided by Telstra. Yet, it is clear from the AXE document that this is not the case.

 

 

To further support my claims that Telstra already knew my phone complaints were valid, can best be viewed reading Folios C04007 and C04008, headed TELECOM SECRET (see Front Page Part Two 2-B) states:

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

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

Why hasn’t the Australian government demanded answers from Telstra management asking why these lies have not been made to account for those incorrect unlawful statements during an arbitration process? Statements that helped downgrade the validity of my arbitration claims.

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

 

Children's lives could be at risk

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

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

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

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

Group leader Ms Louise Rolls said in a letter to the camp the faulty phones had endangered lives and the hospital would not return to the camp unless the phone service could be guaranteed” (Arbitrator File No/90)

After the Melbourne Children's Hospital recorded a near-death experience with me having to rush a sick child with cancer to the Portland Hospital 18 kilometres away from my holiday camp, Telstra finally decided to take my telephone faults seriously. None of the 35 children (all with cancer-related illnesses) had mobile phones or the six or so nurses and carers. Mobile telephones could not operate successfully in Cape Bridgewater until 2004, eleven years after this event. My coin-operated gold phone was also plagued with phone problems, and it took several tries to ring out of the holiday camp. An ambulance arrived once we could ring through to the Hospital. 

After five years, it took almost a tragedy for Telstra to send someone with real technical experience to my business. Telstra's visit happened on 3 June 1993, six weeks after the Children's Hospital vowed never to revisit my camp until I could prove my camp was telephone fault-free. No hospital where convalescent is a good revenue spinner has ever visited my business, even after I sold it in December 2001.

These telephone problems were experienced twelve months before Telstra tampered with my telephone.  

On 21st November 2007, I received from the Australian Communications and Media Authority (ACMA), under FOI, a copy of AUSTEL’s original draft findings dated 2nd / 3rd March 1994 regarding the telephone problems experienced by the Cape Bridgewater Holiday Camp from 1988 to 1994. Copied below are some of the page numbers and points in the report. I am discussing these issues here on our Manipulating the Regulator page to show AUSTEL's difficulties as the government regulator had in obtaining documents from Telstra (at the time, a wholly government-owned corporation). Given these difficulties, the non-supply of documents to the COT claimants during their respective arbitrations is one reason I could not conclusively prove to the arbitrator my telephone faults were still ongoing.  The following list identifies some areas (in the AUSTEL draft report) where AUSTEL had problems with access to Telstra records on the service provided to me:

The following information shows that in March 1994, one month before Telstra tampered with my TF200 telephone after it left my office, the government regulator had already found that the equipment supplied to me by Telstra was grossly deficient. My telephone problems had been ongoing since 1988, six years before someone in Telstra poured a wet, sticky substance into my telephone before it arrived at Telstra's laboratories for examination.

 The following five sets of documents were not provided by the government regulator by Telstra regarding my ongoing telephone problems. Yet, without this information, AUSTEL (now ACMA) could still prove my claims were valid.

So why did Telstra fudge their TF200 report?

     Point 43 on page 20 “As no fault report records remain in existence from Cape Bridgewater residents prior to this period, or these records have not been provided to AUSTEL, it is difficult to gauge the level of problems in the area.”

     Point 48 on page 22 “AUSTEL has been hampered in assessing Telecom’s dealings with Mr Smith by Telecom’s failure to provide files relating to Mr Smith’s complaints.”

     Point 71 on pages 28 and 29 “AUSTEL has not been provided with the documents on which the conclusion in this briefing summary were reached, such as fault reports from other Cape Bridgewater subscribers over this period or the details of the final selector fault.  It would have been expected that these documents would have been retained on file as background to the summary.  It can only be assumed that they are contained within the documentation not provided to AUSTEL.”

     Point 140 on page 49 “It should be noted that AUSTEL’s investigation of matters relating to the RCM problem has been hampered by Telecom’s failure to make available to AUSTEL a file specifically relating to the Pairs Gains Support investigation of the RCM.  The file was requested by AUSTEL on 9 February 1994.”

     Point 160 on page 55 “It should be noted that it is hoped that a number of issues in regard to the Cape Bridgewater RCM will be clarified when Telecom provides the documentation requested by AUSTEL.”

Once AUSTEL was fully aware Telstra was refusing AUSTEL relevant information that would allow the government communications regulator to prepare its official report for the minister after the regulator facilitated the arbitration and mediation processes that were to be based on information obtained from Telstra, it is evident that AUSTEL should never have allowed those processes to proceed. AUSTEL breached its duty of care to the COT cases by permitting the arbitrations/mediations to proceed. After all, if the government could not officially order Telstra to supply records to the minister, then what hope did the COT cases ever have of obtaining the same documents?

Absentjustice-Introduction File 495, dated 22 September 1994, is a transcript from an oral interview at the Commonwealth Ombudsman’s Office with AUSTEL’s representatives Bruce Matthews and John McMahon. On page 7 of this manuscript, the Commonwealth Ombudsman’s officer, John Wynack, asked: ‘What was the date the report was issued, the AUSTEL report? And Mr Matthews replied: ‘The final report was April – I can’t remember the date in April, but April 1994. The draft report was produced in March 1994, and Telecom received their copy then.

Spoliation of evidence – Wikipedia

In simple terms, AUSTEL's only providing Telstra with a copy of their AUSTEL’s Adverse Findings in March 1994 not only assisted Telstra in defending my 1994/95 arbitration but also in 2006, when the government could only assess my claims on a sanitized report prepared by AUSTEL and not their AUSTEL’s Adverse Findings.

These actions by AUSTEL were an abuse of process when they allowed me to commence arbitration/legal proceedings against Telstra without the necessary documents I needed to support my claim. To have allowed me to spend more than $300.000.00 in arbitration fees trying to prove something that the government had already proved against Telstra was an abuse of process. AUSTEL breached their statutory obligation towards me as a citizen of Australia. 

Minimizing Telstra’s liability 

It is important to note before AUSTEL did their investigation into my complaints I provided them with a comprehensive log of my phone complaints, which I later also supplied an updated copy to Dr Hughes (the arbitrator) on 15 June 1994 in my interim arbitration submission (see File - 7 to 9-A - AS-CAV Exhibit 1 to 47 and File 108 - AS-CAV Exhibit 92 to 127).

AUSTEL’s Adverse Findings, on Pages 2 and 212 - Points 23, 42, 44, 46, 109, 115, 130, 153, 158, 209 and 212 (below), were compiled after the government communications regulator investigated my ongoing telephone problems. Government records (see Absentjustice-Introduction File 495 to 551) show AUSTEL’s adverse findings were provided to Telstra (the defendants) one month before Telstra and I signed our arbitration agreement. I did not get a copy of these findings until 23 November 2007, 12 years after the conclusion of my arbitration.

Page 2 – "Mr Smith has had an ongoing complaint about the level of service for some time .....customer was originally connected to an old RAX exchange, which had limited junctions brtween Portland and Cape Bridgewater, Thus congestion was a problem for all customers on the Cape Bridgewater exchnage. The exchange was up graded to an RCM parented back to the Portland AXE 104".  

Page 10 – “Whilst Network Investigation and Support advised that all faults were rectified, the above faults and record of degraded service minutes indicate a significant network problem from August 1991 to March 1993.”

Point 23 – “It is difficult to discern exactly who had responsibility for Mr Smith’s problems at the time, and how information on his problems was disseminated within Telecom. Information imparted by the Portland officer on 10 February 1993 of suspected problems in the RCM “caused by a lighting (sic) strike to a bearer in late November” led to a specialist examination of the RCM on March 1993. Serious problems were identified by this examination.”

Adequacy of Response 

Point 25 – "It should also be noted that during the period of time covered by this chronology of significance events it is clear 

• Telecom had conducted extensive testing 
• Cape Bridgewater Holiday Camp frequestly reported problems with the quality of telephone service
• both the camp and Telecom were receiving confirmation of reported from other network users
• major faults were identified more through persitense reporting of probles by customer than through testing of the network 
• customers in the Cape Bridgewater area also complaining of similar problems

Point 26 – "The chronology of significant events demonstrates that Telecom conducted estensive testing and Telecom rectified faults without delay when faults were identified. It is clear however, that

• Cape Bridgewater Holiday Camp was exposed to significant network problems over an extended period of time 
• Telecom testing did not not detect all of the network problems affecting Mr Smith".

Telecom's Approach to reaching Settlement 

Point 27 – "As is discussed under allegation in more detail throughout this document, Telecom's failure to adequately identify Mr Smith's network problems challenges the bases of Senior Telecom Management's approach to the resolution of Mr Smith's complaints and his claims for compensation etc, etc 

Point 29 – "A fundamental issue underlying Telecom's settlement with Mr Smith was the question of whether Telecom had taken reasonable steps to comprehensively diagnose the standard of Mr Smith's telephone service. This is an important point as settlement took place on the bases that both parties agreed Mr Smith was receiving an acceptable standard of service at the time of settlement. Mr Smith maintains he was under considerable financial pressure to reach settlement, leading him to accept Telecom's assurances of his services at the time of settlement."

Point 32 – "Telecom's communications with Mr Smith in the months prior to settlement uniformaly argued that the Cape Bridgewater Holiday Camp was at an acceptable level and that Telecom was capable of rapidly rectifying faults as they occured."

Point 42 – “Some important questions are raised by the possible existence of a cable problem affecting the Cape Bridgewater Holiday Camp service. Foremost of these questions is why was the test call program conducted during July and August 1992 did not lead to the discovery of the cable problem. Another important question is exactly how the cable problem would have manifested in terms of service difficulties to the subscriber.”

Point 44 – “Given the range of faults being experienced by Mr Smith and other subscribers in Cape Bridgewater, it is clear that Telecom should have initiated more comprehensive action than the test call program. It appears that there was expensive reliance on the results of the test program and insufficient analysis of other data identifying problems. Again, this deficiency demonstrated Telecom’s lack of a comprehensive and co-ordinated approach to resolution of Mr Smith’s problems.” 

Point 46 –“File evidence clearly indicates that Telecom at the time of settlement with Mr Smith had not taken appropriate action to identify possible problems with the RCM . It was not until a resurgence of complaints from Mr Smith in early 1993 that appropriate investigative action was undertaken on this potential cause In March 1993 a major fault was discovered in the digital remote customer multiplexer (RCM) providing telephone service to Cape Bridgewater holiday camp. This fault may have been existence for approximately 18 months. The Fault would have affected approximately one third of subscribers receiving a service of this RCM.  Given the nature of Mr Smith’s business in comparison with the essentially domestic services surrounding subscribers, Mr Smith would have been more affected by this problem due to the greater volume of incoming traffic than his neighbours.”

Point 47 –“Telecom's ignorance of the existence of the RCM fault raises a number of questions in regard to Telecom's settlement with Smith. For example, on what bases was settlement made by Telecom if this fault was not known to them at this time? Did Telecom settle with Mr Smith on the bases that his complaints , of faults were justified without a full investigation of the validity of these complaints, or did Telecom settle on the basis of faults substantiated to the time of settlement? Wither criteria for settlement would have been inadequate, with the later critera disadvantaging Mr Smith, as knowledge of the existence of more faults on his service may have led to an increase in the amount offered for settlement of his claims".

Point 48 – “AUSTEL has been hampered in assessing Telecom’s dealings with Mr Smith by Telecom’s failure to provide files relating to Mr Smith’s complaints.”

Point 49 –: "As a result of Telecom's failure to provide file documentation relating to Mr Smith some of the following conclusions are consequently based on insufficient information. The information which is avaialble however, demonstates that on a number of issues Telecom failed to keep Mr Smith informed on matters fundamental to the assessment of his complaints". 

Point 71 –: “AUSTEL has not been provided with the documents on which the conclusion in this briefing summary were reached, such as fault reports from other Cape Bridgewater subscribers over this period or the details of the final selector fault.  It would have been expected that these documents would have been retained on file as background to the summary.  It can only be assumed that they are contained within the documentation not provided to AUSTEL.”

Point 76 – “One disturbing matter in relation to Mr Smith’s complaints of NRR  is that information on other people in the Cape Bridgewater area experiencing the problem has been misrepresented from local Telecom regional manager to more senior manager.” 

Point 86 – “From examination of Telecom’s documention concerning RVA  messages on the Cape Bridgewater Holiday Camp there are a wide range of possible causes of this message.” 

Point 109 – The view of the local Telecom technicians in relation to the RVA problem is conveyed in a 2 July 1992 Minute from Customer Service Manager – Hamilton to Managers in the Network Operations and Vic/Tas Fault Bureau:

• “Our local technicians believe that Mr Smith is correct in raising complaints about incoming callers to his number receiving a Recorded Voice Announcement saying that the number is disconnecte. They believe that it is a problem that is occurring in increasing numbers as more and more customers are connected to AXE. (AXE – Portland telephone exchange)”

Point 115 –“Some problems with incorrectly coded data seem to have existed for a considerable period of time. In July 1993 Mr Smith reported a problem with payphones dropping out on answer to calls made utilising his 008 number. Telecom diagnosed the problem as being to “Due to incorrect data in AXE 1004, CC-1. Fault repaired by Ballarat OSC 8/7/93, The original deadline for the data to be changed was June 14th 1991. Mr Smith’s complaint led to the identification of a problem which had existed for two years.”

Point 130 – “On April 1993 Mr Smith wrote to AUSTEL and referred to the absent resolution of the Answer NO Voice problem on his service. Mr Smith maintained that it was only his constant complaints that had led Telecom to uncover this condition affecting his service, which he maintained he had been informed was caused by “increased customer traffic through the exchange.”  On the evidence available to AUSTEL it appears that it was Mr Smith’s persistence which led to the uncovering and resolving of his problem – to the benefit of all subscribers in his area”.

Point 140 – “It should be noted that AUSTEL’s investigation of matters relating to the RCM problem has been hampered by Telecom’s failure to make available to AUSTEL a file specifically relating to the Pairs Gains Support investigation of the RCM.  The file was requested by AUSTEL on 9 February 1994.”

Point 153 –“A feature of the RCM system is that when a system goes “down” the system is also capable of automatically returning back to service. As quoted above, normally when the system goes “down” an alarm would have been generated at the Portland exchange, alerting local staff to a problem in the network. This would not have occurred in the case of the Cape Bridgewater RCM however, as the alarms had not been programmed. It was some 18 months after the RCM was put into operation that the fact the alarms were not programmed was discovered. In normal circumstances the failure to program the alarms would have been deficient, but in the case of the ongoing complaints from Mr Smith and other subscribers in the area the failure to program these alarms or determine whether they were programmed is almost inconceivable.”

Point 158 – “The crucial issue in regard to the Cape Bridgewater RCM is that assuming the lightning strike did cause problems to the RCM om late November 1992 these problems were not resolved till the beginning of March 1993, over 3 months later. This was despite a number of indications of problems in the Cape Bridgewater area. Fault reports from September 1992 also indicate that the commencement of problems with the RCM may have occurred earlier than November 1992. A related issue is that Mr Smith’s persistent complaints were almost certainly responsible for an earlier identification of problems with the RCM than would otherwise have been the case.”

Point 160 – “It should be noted that it is hoped that a number of issues in regard to the Cape Bridgewater RCM will be clarified when Telecom provides the documentation requested by AUSTEL.”

Point 169 –" Documentation reviewed indicates that other network users attached to the Cape Bridgewater exchange did report problems similar to those experienced by Cape Bridgewater Holiday Camp. It is also clear that problems identified in the area would have impacted on other network users as well as Cape Bridgewater Holiday Camp."

Point 209 – “Cape Bridgewater Holiday Camp has a history of service difficulties dating back to 1988. Although most of the documentation dates from 1991 it is apparent that the camp has had ongoing service difficulties for the past six years which has impacted on its business operations causing losses and erosion of customer base.”

Point 210 – “Service faults of a recurrent nature were continually reported by Smith and Telecom was provided with supporting evidence in the form of testimonials from other network users who were unable to make telephone contact with the camp.”

Point 211 – “Telecom testing isolated and rectified faults as they were found however significant faults were identified not by routine testing but rather by the persistence-fault reporting of Smith”.

Point 212 – “In view of the continuing nature of the fault reports and the level of testing undertaken by Telecom doubts are raised on the capability of the testing regime to locate the causes of faults being reported.”