Chapter Seven - Reinstated liability Clauses

Learn about government corruption and the horrendous crimes they commit Learn about unscrupulous criminals, corrupt politicians and the lawyers who control the legal profession in Australia. 

Tampering with Evidence during Litigation.

• Legal consequences evidence tampering
• Unlawful manipulation of court evidence
• Litigation integrity preservation -
• Whistleblowing in Australia 
• Whistleblower protection laws
• Australian whistleblowing cases
• Importance of reporting misconduct 

PLEASE NOTE: it is essential the reader understands here in the segment below that the COT Case Strategy prepared by Freehill Hollingdale & Page (see Unprecedented Deception is linked to most of the problems that affected the COT Cases in proving their claims. The cause of so much heartache for the COT Cases. 

Coupled with the selling off of Lane Telecommunications Pty Ltd (the arbitration technical resource unit) to Swedens Ericsson Telecommunications, which was initially under investigation by Lane on behalf of the arbitrator, is it any wonder the arbitration process failed the COT Cases?

Government Corruption. Corruption in the public service, where misleading and deceptive conduct has spuriously over more than two decades perverted the course of justice. 

Had I received the arbitration file from either Telstra or the Telecommunications Industry Ombudsman, which is discussed below and had been able to prove the exoneration of the arbitration resource unit and that of the TIO Legal Counsel was forced upon the COT Cases after our lawyers had only agreed to the agreement that made all parties liable I would have been able to at least appeal the technical side of the arbitrators findings in his award. At least I had grounds to do so.

Using these exonerated clauses and the advice from the resource unit to Warwick Smith (the administrator of the arbitration) and Dr Hughes (the arbitrator) that there had been forces at work that had affected the running of the arbitrations, I had a good chance at winning that appeal.  

Therefore, it is important to link here the bribery and corruption issues the US Department of Justice raised against Ericsson on 19 December 2019 and the selling off of Lanes to Ericsson in 1996 during the COT arbitrations because it is clearly linked the the delapidated copper wire Telstra infrastructure as well as the poor performance of the Ericsson AXE telephone exchange equpment which other countries around the world were removing or had removed it from their exchanges (see File 10-B Evidence File No/10-A to 10-f ).

It is likewise as important to us the following statement made on 26 September 1997, after most of the arbitrations were concluded, John Pinnock (the second administrator of the COT arbitrations), advised a Senate committee (see page 96 and 99 Senate – Parliament of Australia) that:

“Lane Telecommunications, which is one part of the technical component of the resource unit, has withdrawn from the process as a result of a conflict or perceived conflict of interest after being purchased from Pacific Star by Ericsson Australia, the major supplier of equipment to Telstra, including equipment whose performance is central to some of the claims.”

Australia must be the only country in the Western world that allows a witness (Lane Telecommunications Ptd Ltd) was a witness to what the COT claimants had uncovered against Ericsson to be purchased by the very same company which was officially under investigation by the arbitrator who allowed this transaction to take place. Why didn't the arbitrator make an official note to the TIO and government that for Ericsson to purchase Lane during the COT arbitrations when Lane had been investigating Ericsson during the COT arbitrations and was still investigating Ericsson up to the period the sale was due to take place was a conflict of interest of extreme importance and relevance to both past and present COT claimants.

Why should the altering of the liability clauses in the arbitration agreement i.e.; removing the $250,000.00 liabilty caps to exonerate the technical resource unit continue through to exonerating Lane Telecommunications Pty Ltd, after they was sold off to Ericsson. 

No written agreement was enterred into by me allowing for for clauses 25 and 26 to be removed so as to exonerate the two resource units from all liability. We had all agreed that the sum of $250,000.00 liabilty caps was a deterant for the consultants to act responsibly.

Please read on.

June 1994: This letter, from Telstra’s Arbitration Liaison Officer to the TIO Special Counsel, who had been exonerated from all liability for his part in the first four COT arbitrations, included the new version of the arbitration agreement that would be used for the next 12 COT claimants. Point 11.2 of this new agreement states that

“The liability of any independent expert resource unit used by the arbitrator, for any act or omission on their part in connection with the Arbitration, shall be limited to $250,000.00″.

Thus, a few months after the $250,000 liability caps had been removed from my arbitration agreement, they were reinstated into the agreement for the remaining 12 COT claimants. Why were the claimants NOT advised of the reinstatement of the liability clauses? Why were we not offered the opportunity to go back to the original agreement that the arbitrator’s secretary had faxed to Alan Goldberg and William Hunt (our lawyers) as the approved final agreement? Why were the three claimants (including me) forced to continue with an arbitration agreement that allowed the Resource Unit to be safely exonerated from all liability, YET in the agreement used by 12 other COT claimants; they were mandated to conduct those arbitrations within the law? Three COT claimants, Graham Schorer, Ann Garms and I, were discriminated against, without question. Exhibit Hacking-Julian Assange File No/42 is from the TIO’s Standard Arbitration Rules used for other COT-type claims against the Telstra Corporation. Liability is covered in Rule 31, which states:

“The liability of any independent expert used by the Arbitrator is limited to $250,000 for any act or omission on their part in connection with the Arbitration”.

This means that any Australian citizen who enters into a TIO-administered arbitration could sue any independent expert used by the arbitrator, to the limit of $250,000 “for any act or omission on their part in connection with the Arbitration”. Graham Schorer and I were not afforded these same entitlements. This was, in fact, illegal as well as discriminatory. That the defendants (Telstra) in an arbitration were able to discuss with the official administrator of the process (in this case the TIO) whether certain discovery documents or pieces of evidence should be released to the arbitrator, and even whether they should be released at all, shows just how much control the defendants (Telstra) had over the administrator.

This government corruption must stop. The horrendous crimes they commit must stop. These unscrupulous criminals, corrupt politicians and the lawyers who control the legal profession in Australia must be brought to account.  

Furthermore, as the next instalment of the story shows, this control extended to the arbitrator and the TIO-appointed resource unit.

In summary, Senators Alston and Boswell took up COTs’ cases with Telstra and AUSTEL in August 1993 and stated that if they were not swiftly resolved there would be a full Senate Inquiry. Telstra agreed to co-operate, and AUSTEL was authorised to make an official investigation into our claims. As a result of their investigation, AUSTEL concluded that there were indeed problems in the Telstra network and the COT four had been diligent in bringing these issues into the public domain.

Because we were all in such difficult financial positions, AUSTEL’s chairman, Robin Davey, recommended that Telstra appoint a commercial loss assessor to evaluate our claims. These claims had already been found generally valid in AUSTEL’s report. All that remained was for an assessor to determine an appropriate settlement, based on the detailed quantification of our losses. This Fast Track Settlement Process was to be run on strictly non-legal lines. This meant we would not be burdened with having to provide proof to support all of our claims. We would be given the benefit of the doubt in the quantification of our losses. This was the process AUSTEL specified as appropriate for our cases. Telstra was to give us prompt and speedy access to any discovery documents we needed to enable us to complete our claims as quickly as possible. It is quite likely that neither the current government, nor any government before them, has yet contemplated that:

The Australian Government owned the Telstra Corporation outright when the COTs first began the claim process;

AUSTEL conducted their investigation into my phone complaints under section 335 (1) of the Telecommunications Act 1991;

Section 342 of that Act directs that, after concluding such an investigation, AUSTEL was legally required to prepare a report and provide it to the Minster for Communications and the Arts, and that report was to cover:-

the conduct of the investigation; and

any findings that AUSTEL made as a result of their investigations.

There were seven individual COT arbitrations running simultaneously and AUSTEL had problems with acquiring documents from Telstra in relation to each one of them. However, they did not even warn the Minister for Communications that Telstra’s reluctance to provide them with the requested, relevant documents was seriously hampering their investigations, even though these documents were essential to the proper investigation of these cases. As Open Letter File No/4 File No/5 File No/6 File No/7, show (point 43, page 20; point 48, page 22; point 71, pages 28-29; point 140, page 49; point 160, page 55), in my case alone, AUSTEL made five separate attempts to acquire documents from Telstra but they were unable to complete their findings because Telstra would, or could, NOT supply the material AUSTEL needed to fully report on all the facts. This meant even though AUSTEL knew where Telstra stored their files, and had the power of government legislation to demand Telstra supply these documents, they were still not provided.

If a government communications regulator could not obtain the documents they needed to successfully investigate the COT Cases allegations, what hope did the COT cases have? Surely AUSTEL had a moral obligation, if not a statutory obligation, to fully report these facts to the government (as an endorser of these arbitrations) before the COT cases spent many hundreds of thousands of dollars, as they did, in arbitration fees trying to access documents that AUSTEL knew the claimants had NO chance of obtaining.

A Secret Deal

Telstra’s Arbitration Liaison Officer wrote to the TIO on 11 July 1994 stating:

“Telecom will also make available to the arbitrator a summarised list of information which is available, some of which may be relevant to the arbitration. This information will be available for the resource unit to peruse. If the resource unit forms the view that this information should be provided to the arbitrator, then Telecom would accede to this request”. 

The statement in Telstra’s letter Exhibit 590 in File  AS-CAV Exhibits 589 to 647  “if the resource unit forms the view that this information should be provided to the arbitrator” confirms that both the TIO and Telstra were aware that the TIO-appointed resource unit had been assigned to vet most, if not all, the arbitration procedural documents en route to the arbitrator. If the resource unit decided a particular document was not relevant to the arbitration process, it would not be passed on to the arbitrator or other parties. This particular secret deal has been linked to further clandestine dealings and is discussed further elsewhere on absentjustice.com. Could this secret deal be directly related to the very important 24 January 1995 arbitration letter which is discussed below under Telecommunication Industry Ombudsman?

The Telecommunications Industry Ombudsman (TIO) is an Australian National Telecommunications Industry Regulator, which seems like a good idea except that this Ombudsman is funded by the telecommunication carriers themselves, which means that it can hardly be called impartial, on any level, but particularly when they are involved in an arbitration, and their wages are actually paid by the defendants in that arbitration! Evidence available at absentjustice.com shows that, during the COT arbitrations, the TIO allowed Telstra employees (the defendants in the arbitration) to be present at all TIO board meetings, and all monthly TIO council meetings, including any that involved discussions about COT arbitration issues.  So were any of the COTs (the complainants in this legalistic arbitration process) allowed to attend those same meetings, or even invited to attend those meetings?  Of course not!  And did anyone in any position of power ever attempt to put the complainants on the same footing as the defendants?  Certainly not; once again the COTs were discriminated against in the most deplorable manner.

On 24 January 1995 I responded to Dr Gordon Hughes’ very important 23 January 1995 letter (see but I didn’t receive any acknowledgement that Dr Hughes had received it.  John Pinnock, the second TIO, later wrote to me (on 28 June 1995) claiming that no-one had received my response to Dr Hughes’ letter, so therefore the record showed that I had not replied.

After the statute of limitations had expired, and I could therefore no longer appeal my arbitration award, the TIO’s office returned most (but not all) of my arbitration documents and what was one of the documents that I DID get back?  Yes, the letter I faxed to Dr Hughes on 24 January 1995 was included, with fax machine footprint identified across the top of the document.

If Dr Hughes had replied to my 24 January 1995 letter, I could have proved Telstra knowingly used fraudulent documents as arbitration defence documents as the following link > Telstra’s Falsified BCI Report shows.

As shown in File 10 above, the TIO did NOT have the authority to introduce a separate deal into a process being conducted according to a written legal agreement. On page 5 of the Commercial Arbitration Act 1984, under Part II – Appointment of Arbitrators and Umpires, (see Open Letter File No/21

6. An arbitration agreement shall be taken to provide for the appointment of a single arbitrator unless –

(a)  the agreement otherwise provides; or

(b)  the parties otherwise agree in writing.

The fast-track arbitration procedure agreement I signed, mentions only one arbitrator. There is no written agreement in existence, seen by me, that allows a second arbitrator to determine what information the first arbitrator will see. It is interesting to collate a number of covert situations set up by key players in the COT arbitrations and mischievously concealed under the arbitration agreement confidentiality clauses, even though those events took place before the confidentiality agreement was signed. In their 2 August 1996 communication to the arbitrator (copied to the TIO), the resource unit admitted to concealing relevant documents pertaining to my billing issues from the arbitrator during the course of my arbitration. This serious matter has never been addressed by the TIO or arbitration.

3 October 1994: Telstra’s Steve Black writes to Graham Schorer stating:

“…Subject to the confirmation of the consent and availability of the Arbitrator I confirm my agreement to meet with him, Mr Smith, Mrs Garms and yourself on Wednesday 5 October 1994, or such other date as the Arbitrator is available. The purpose of the meeting is to address the means by which these Arbitrations may be progressed promptly. In particularly the meeting will focus on issues relating to the production of documents both by Telecom and between the parties.”(AS 100)

Even though Graham Schorer and Alan had continued to raise the production of document issues with Dr Hughes (including providing evidence confirming Telstra had deleted information on received FOI documents) between February 1994 and the meeting of 5th October 1994, this meeting never took place. It is interesting to note that in Dr Hughes’ letter to Warwick Smith, dated 12th May 1995 (see below) Dr Hughes actually blamed the poor time frame in the Arbitration Agreement (for the production of documents) as one of the reasons that the Arbitration Agreement was not credible.

Apart from Dr Hughes not convening this meeting to discuss the production of documents are we to assume some sought of favouritism by the arbitrator was in progress?

3 October 1994, As Alan has noted earlier, during the AUSTEL COT Report period in April 1994, Cliff Mathieson, a technical advisor to AUSTEL, asked him to keep AUSTEL informed of any evidence that Alan found during his arbitration, which might assist AUSTEL in their investigations into 008/1800 billing and short-duration call problems.   Because of AUSTEL’s request that Alan keep them up to date, he wrote to them on 3 October 1994, providing evidence, using Telstra’s own data, which showed that they had charged Alan for two non-connected recorded voice faults (RVA) on 27 May 1994.  Alan’s evidence was supported by the fact that the person who complained about these two faults was his arbitration claim advisor, Gary Ellicott, ex National Crime Detective, and he was not a man to stretch the truth in any way.

This letter to AUSTEL on 3 October 1994 later became pivotal to Alan’s increasing anger, particularly when he then received the following information from Dr Hughes in a letter dated 15 November 1994 (AS 118):

“As I have indicated previously, I believe it would be inappropriate for me to order the production of documents in connection with the preparation of your claim, until Telecom has submitted it defence.  I will then understand the parameters of the claim.”

Alan’s frustration is clear from his response dated 27th November 1994, part of which is reproduced here (AS 119):

“I refer to your letter dated 15 November, 1994.

In paragraph three you have noted that, if newly released F.O.I. material is made available by Telecom, and if that makes it necessary for me to amend my claim, I should advise you accordingly.

I have continually corresponded with both yourself and Telecom about my concerns with regard to the conduct of Telecom Management; Simon Chalmers; Freehill, Hollingdale & Page and their delaying tactics.  Their drip feeding procedure, where the release of these F.O.I. documents is some twelve months late, has disadvantaged me in the preparation of my submission under the Fast Track Arbitration Procedure.

Newly released documents on their own may only show limited evidence, painting a small picture.  However, had this newly released F.O.I. material been released some twelve months ago, as it should have been under the F.O.I. Act, this material, when combined with documents already released, would have helped in many instances to further the point made on certain issues.

Telecom Management, by using this destructive system, has disadvantaged C.O.T. and its members throughout this Arbitration Procedure.  By not allowing all the evidence to be viewed by C.O.T., Telecom has stopped us from substantiating all our claims with all the available material.  “A Jigsaw Puzzle Can Only Be Finished When All The Pieces Are Tabled”:  and didn’t Telecom Management play this to a break!”

And, later in the same letter:

“So, in response to your letter of 15th November, 1994:  How can I amend my claim?  Telecom have already had five months to view my first submission as presented in June, 1994, and three months to view my second submission presented in August, 1994.  I am already living on borrowed time, in more ways than one, and each delayed week is having an effect, particularly where advertising for next year is concerned – this has already been disadvantaged.”

Finally, at the end of the third page, Alan noted:

“I do not have the resources to have a professional team view these additional F.O.I. documents which have just been released by Telecom.  I have spent time writing reference to these examples and enough is enough.  All future F.O.I. that has not been provided will have to stay put.  I am today mentally exhausted and unable to continue taking part in Telecom’s façade, their Merry Go Round.

I thank you for your time, and that of the Resource Team.”

This letter was sent the following day, 28 November and that evening, totally overcome with anger and frustration, Alan smashed a single barrel shotgun that had been given to him by his father-in-law, Noel Wagner, some sixteen or seventeen years earlier.

LODGEMENT OF ARBITRATION CLAIM

Although the first part of Alan’s FTAP claim was lodged with Dr Hughes on 15th June 1994, Alan was still submitting sections of his claim in October / November 1994 only partly finished due to Telstra’s unethical conduct of supplying Alan only anecdotal documents.  It is important to note that on 15th June 1994 when this anecdotal information was supplied by Alan to Dr Hughes he immediately supplied this claim material to Paul Rumble, of Telstra’s Customer Response Unit even though the Arbitration Agreement states quite clearly that the arbitrator should pass the claim on to Telstra WHEN THE CLAIM IS COMPLETE.

Dr Hughes also knew that George Close (Alan’s technical advisor) could not submit his report until late in August 1994 and this meant that the document Alan submitted in June 1994 was an interim claim only.  On 15th June 1994 Dr Hughes passed Alan’s interim claim on to Telstra, which gave Telstra a three month head start to begin preparing their defence – because Alan’s complete claim would not be submitted until George’s report was included and that would not happen until at least the end of August.  The arbitration agreement allowed Telstra only one month for the preparation of their defence in reply to the claimant’s submission.  In fact, flaunting the arbitration rules even more, Telstra did not submit their defence until 12th December 1994, almost six months after they received Alan’s interim claim.  How much more one-sided could this process have been?

Exhibit (AS 103) is derived from a thirteen-page document dated 30th March 1995, prepared by Ferrier Hodgson Corporate Advisory for Warwick Smith.  The two attached pages from this report confirm that FHCA knew that Alan’s claim was not complete until at least November 1994 including explaining that Alan had been forced to drip-feed claim material to Dr Hughes because of the way Telstra had been drip-feeding FOI documents when Alan was attempting to prepare his claim, and because Telstra did not supply the bulk of his FOI document (24,000) until after they had submitted their defence, by which time Alan had only a month to respond to their defence.  This is the ‘poor time frame’ that Dr Hughes was aware of and which he overcame for the next three claimants by allowing them between thirteen months and four years in which to submit their response to Telstra’s defence and their responses to the TIO-appointed technical consultant’s report as well as allowing them this extra period in which to amend their claims.  This is the ‘poor time frame’ that Dr Hughes alerted Warwick Smith to on 12th May 1995, and which Dr Hughes said had meant that the arbitration agreement was ‘not a credible document’ for use in the remaining arbitrations (see below).

11 October 1994: AUSTEL (now called ACMA) wrote to Telstra’s arbitration SVT engineer regarding the deficient verification testing and asked what Telstra intended to do about this deficiency (see Arbitrator File No/97).

Between 1992 and 2002, starting with the lead-up to my arbitration, there were times when I was concerned about the possibility I was under surveillance. I found it difficult to explain, even to myself, why I felt so on edge. In hindsight, I now understand various odd events, each apparently quite trivial on their own, were actually part of a bigger picture of lies and deceit that started from the formation of the COT group in 1992 and continued right up to Telstra’s threat in relation to documents I provided to the Australian Federal Police.

I spent over 20 years at sea and nearly as many years in various industrial catering jobs at mining camps. Those who know me well agree I was someone who would never walk away from an old-fashioned ‘stoush’. For a few days after receiving that particularly blatant threat, I felt uncharacteristically anxious. I actually contemplated not providing the FOI documents that Telstra had warned me about – before I realised this was just another ‘stoush’, like many others I had weathered over the years, and so, I continued to assist the AFP with their inquiries.

All this stress, however, eventually generated a trip to the hospital in an ambulance, with a suspected heart attack. The final diagnosis was that it was a stress attack, which I believe was brought about by the accumulated pressure of no one listening; not even during my arbitration, when I described the unlawful conduct of various Telstra employees and the control they apparently had over the arbitrator and the TIO. I was not the only COT who could see what was happening YET the arbitrator and the TIO stood by, neither taking action nor investigating my claims.

If the arbitrator had responded to just one of my letters, perhaps by demanding that Telstra prove that they had carried out the SVT according to the agreement reached with AUSTEL, the TIO and Telstra (before the claimants signed their individual agreements), I could have proved the SVT process at the holiday camp failed, as we were claiming. No one would investigate this failed SVT process.

11th November 1994, confirmation l had not received all his relevant requested FOI material. John Wynack, Director of Investigations at the Commonwealth Ombudsman’s Office, wrote to Frank Blount, Telstra’s CEO.  This letter was copied on to Dr Hughes and Warwick Smith – it indicates how desperate I was becoming.  I believe that Mr Wynack made it quite clear to Mr Blount that he would be more than a little concerned if my Alan’s allegations were proved to be correct in regard to Telstra knowingly blanking out information on documents previously supplied under FOI; and/or knowingly withholding relevant documents from me such as the AXE Portland/Cape Bridgewater telephone exchange logbook.   Mr Wynack’s concerns were justified.

It is most important we attach here the following link http://www.wedophones.com/Manuals/EricssonNotInService/AXE%20Operation%20And%20Maint%20Module%201.pdf at this point of time because through this website, even though I asked the arbitrator to access the Portland AXE telephone exchange logbook, this logbook discussed on page 20 of this link was never accessed or provided to me under FOI or the arbitration discovery process. Even John Wynack on behalf of the Commonwealth Ombudsman tried to access this same logbook via writing to Telstra's CEO Frank Blount on 13 November 1994, asking why it was never provided to me under FOI. It is clear from page 20 in this attached link that all faults registered by Telstra's technicians concerning any ongoing telephone problems within the Portland and Cape Bridgewater switching exchange would have been entered into this logbook. 

This one document was all I needed to prove my claims of ongoing telephone problems was factual. Had the arbitrator been made aware of this, he could never have brought down his findings without making a provision in his award for further compensation until Telstra could prove there were no more problems with this AXE telephone exchange. The ambit of the Arbitration Act allowed for this provision for additional payment.

Just as important is, why did Lane Telecommunications Pty Ltd (ex-Telstra technician's) advise the arbitrator of the importance of this Ericsson 77-page AXE manual? Is the reason Lane Telecommunications Pty Ltd did not inform the arbitrator that such a logbook existed because they were working with Ericsson from the very beginning when they were appointed by the TIO in March 1995 (eleven months after I signed my arbitration agreement? We are talking collusion here of the worse possible kind.  

Please note: the fax imprint at the top of this letter – 036148730 was Dr Hughes’ office fax number which confirms his office did receive this information.

In Dr Hughes’ draft award on page 4 at 2.23 he states: “…Although the time taken for completion of the arbitration may have been longer than initially anticipated, I hold neither party and no person responsible. Indeed, I consider the matter has proceeded expeditiously in all the circumstances. Both parties have co-operated fully, (see exhibit AS 115 in file AS-CAV 92 to 127).

What is amazing about this draft award inadvertently provided to me by the TIO office in 2001, is that at the side column of this clause someone has hand-written the notation “…Do we really want to say this?” One would have to assume from this hand-written statement that they believed the arbitration process had not been as transparent as it should have. In the final Award, there is no clause 2.23 or any reference to both wordings.

What is significant about the 2.23 FOI issue see exhibits AS 114 to AS 116 in file AS-CAV 92 to 127)  is that Dr Hughes did know Telstra was not abiding by the agreed process of discovery via the FOI Act, because his office not only received John Wynack’s letter see (AS 114), they also received John Rundell Arbitration Project Manager’s letter dated 18th April 1995 which noted:

“It is unfortunate that there have been forces at work collectively beyond our reasonable control that have delayed us in undertaking our work.”  

On page 4, of John Pinnock’s report to the Senate Estimates Committee dated 26th September 1997, he states:

“…In the process leading up to the development of the Arbitration procedures the Claimants were told that documents would be made available under the Freedom of Information Act” (exhibt AS 117 in file AS-CAV 92 to 127).

The Government Solicitor was brought into the arbitration process to ensure that Telstra provided the claimants with all the FOI documents they required but Telstra only followed these instructions after they had submitted their defence of my claim, making a mockery of the whole arbitration process, particularly since it has now been confirmed that some of the most relevant information was not given to me until weeks or, in many cases, months after the TIO had deemed his arbitration to have been ‘successful’.  The letter dated 13th October 1994 (see above and immediately below) provides further testament to claims that Dr Hughes should have abandoned all the COT arbitrations until Telstra could be made accountable for their illegal behaviour in relation to the claimants.

Dr Hughes plays Arbitrator

21 November 1994: After sending his letter of 15th November but before my reply had been drafted, Dr Hughes wrote to me again, with the following statement: (exhibit AS 120 in file AS-CAV 92 to 127)

“If I form the view, or if the Resource Unit forms the view, that there are relevant documents in the possession of either party which have been deliberately or inadvertently withheld, I shall make an appropriate order for production.”

13 October 1994: A letter sent by a Telstra whistleblower to Parliament House Canberra and received by the Office of the Hon Michael Lee, MP Minister for Communications, includes allegations against one of the Telstra executives involved in altering and removing information on documents I requested at Telstra’s FOI viewing room. Someone has added a hand-written comment on page one, pointing to this person’s name and noting [the TIO] “has been critical of [same Telstra representative] on some issue”

The deputy TIO passed this letter to the TIO, together with my statutory declaration (see Destruction of Evidence / Perverting The Course of Justice/Crimes Act 1958 Crimes-Act-1958-Evidence-File-No-1, Crimes Act 1958 Evidence File No 2, Crimes Act 1958 File No 3 and Crimes Act 1958 File No 4) showing I had named this same Telstra representative as one of the employees who had removed information on requested FOI documents and/or had not provided the correct documentation. The TIO must have told someone – either in the government or in a regulatory position – that this Telstra representative was named by two different sources. The whistleblower’s letter (see Destruction of Evidence /Perverting The Course of Justice/Crimes Act 1958 Crimes-Act-1958-Evidence-File-No-1, Crimes Act 1958 Evidence File No 2, Crimes Act 1958 File No 3 and Crimes Act 1958 File No 4) states under the heading Concerns and Issues

“Telstra’s Steve Black ‘Group General Manager of Customer Affairs, who has the charter to work to address and compensate Telecom’s ‘COT’ customers as well as the management of other customer issues related to Telecom, is involved in and initiates conduct and work practices that are totally unethical…

There are three main areas in which this second Telstra representative and his senior executives have sought to influence and manipulate.

1.Remove or change clear information on the position of liability.

2.Diminish the level of compensation payable to COT customers.

3.Dismissive of breaches in relation to matters regarding customer Privacy”.

When this document surfaced some four years after my arbitration, it further proved what the COTs had been claiming all along: their cases were crippled before they even submitted their claims. One particular statement on the first page of this letter caught my eye however, i.e. the whistleblower’s comment naming the same Telstra employee that I named in my statutory declaration as being part of the FOI unit that provided me altered documents in Telstra’s Melbourne office on 13 May 1994.

11 November 1994, John Wynack, Commonwealth Ombudsman Office wrote to Telstra’s CEO noting:

“At the request of (name deleted), I am notifying you of the details of the complaints made to the Ombudsman by Alan Smith;

• Telecom claimed that documents given to Telecom by Mr Smith in 1992 had been destroyed or lost.
• Telecom has lost or destroyed a number of files relating to his contacts with Telecom prior to 1991.
• Telecom unreasonably delaying providing access to many documents.
• Telecom unreasonably refused to provide the Portland/Cape Bridgewater Log Book associated with the RCM at Cape Bridgewater’ for the period 2 June 1993 to 6 March 1994″(AS-CAV Exhibit 92 to 127 - See AS-CAV 114)

While sworn statement one (dated 10 August 2006) by an ex-Telstra protective service officer has been addressed elsewhere in absentjustice.com (see Main Evidence File No 30), I again raise this statement here because points 20, 21 and 22 support how important this withheld Portland/Cape Bridgewater Log Book was:

(20)”…I had cause to travel to Portland in western Victoria in relation to a complaint involving suspected illegal interference to telephone lines at the Portland telephone exchange.

(21) As part of my investigation, I first attended at the exchange to speak to staff and check the exchange log book which was a record of all visitors to the exchange and a record of work conducted by the technical officers.

(22) When I attended at the exchange, I found that the log book was missing and could not be located. I was informed at the time by the local staff that a customer from the Cape Bridgewater area south of Portland was also complaining about his phone service and that the log book could have been removed as part of that investigation”.

Could this perhaps, be linked to my first disclosure to AUSTEL, in June 1993, when I explained that at least two other businesses in Portland were having considerable 008/1800 problems? In addition, I told AUSTEL that it was impossible for so many short-duration calls to have come into my business, even though that was what my telephone account showed. Telstra’s local technician had lied about the ELMI monitoring machine NOT being connected to my service, when it had been.What was in the logbook that a government regulator, Telstra’s own protective service officer and the commonwealth ombudsman’s office have been unable to gain access to it? Like much of the Cape Bridgewater fault data that AUSTEL failed to obtain from Telstra during their investigations into my complaints (see Main Evidence File No 15), I was also unable to get my hands on the Cape Bridgewater/Portland exchange logbook – not even with the help of the Commonwealth Ombudsman.

Could this be the reason why the log book vanished? Perhaps Telstra feared a class action lawsuit in the future. All I wanted was to prove my case and get on with running my business.

In my own letter to Dr Hughes, of the same date, regarding the concealment of this logbook (which I continued to seek through the arbitration process) I noted:

“I believe the following fax from the Commonwealth Ombudsman’s Office, is relevant to my claim, and not contrary to the instructions outlined in your letter dated 10th November, 1994.

“In defence of these letters and faxes I would like to state that I believed at the time of writing that I was showing both the reluctance of Telecom to assist me with the Arbitration Procedure and their efforts to inconvenience me in this Procedure. However, I understand the legal reasons you have put forward as to the inappropriateness of forwarding literature back and forth where it may be seen by parties as compromising the confidential undertakings I agreed to abide by.” (See Home Page File No 10 -A)

Dr Hughes stated I should not be sending letters to him, the TIO or Telstra unless the letters related directly to my claim. I received threats from Telstra after the signing of the agreement. Telstra refused to supply requested FOI documents and forced me out of their Melbourne Exhibition Street head office after I discovered some of my requested FOI documents were defaced while I was at lunch. Yet Dr Hughes and Warwick Smith would not approach Telstra on my behalf and demand Telstra explain those threats. The Australian Federal Police were supposed to investigate these threats and did not. It seemed Telstra controlled the whole arbitration process. This is why I stood out, alone, asking what the #$?* is going on! Where was the Portland Cape Bridgewater exchange logbook? This one document, amongst thousands, on its own would prove my case: my ongoing telephone problems and those of other Cape Bridgewater and Portland residents were true, as the daily recording of those faults, penned into the log book each day by the various technicians, would have shown. I was on my own, as were the other COT cases. Of course, later the Senate uncovered that Telstra withheld most, if not all, of the relevant, requested documents. However, the Senate’s findings, regarding this withholding, were tabled three years after my arbitration over. This was three years too late: Telstra had won and concealed that my ongoing complaints were real.

The AUSTEL report confirms they initiated the SVT process so the arbitrator to the COT process had a guide as to whether all phone and faxing problems registered by the COT claimants had been located and rectified. The arbitrator was unable to hand down his final decision until Telstra demonstrated that they had carried out the specified SVTs and proved to AUSTEL’s satisfaction that both phone and fax services to various COTs’ businesses were up to the expected network standard.AUSTEL supplied the quarterly COT Cases Report (see Arbitrator File No/100) to communications minister, the Hon Michael Lee MP, on 13 April 1994; sections from the report are also relevant to the following 11 November 1994 segment above. Points 5.31 and 5.32 in this AUSTEL report, highlight the continuing phone and fax problems encountered by the four original COT claimants’ businesses, AUSTEL directed Telstra to carry out Service Verification Tests (SVT) at claimants’ premises using AUSTEL specifications, to verify that claimants’ phone services were brought up to a proper working standard, but this did not eventuate. (See Open Letter File No/22)

16 November 1994: AUSTEL wrote to the Telstra arbitration liaison officer under the heading Service Verification Test Issues, outlining their concerns regarding the deficiencies in the testing process conducted at the Cape Bridgewater Holiday Camp (see Main Evidence File No/2). Telstra’s CCAS data for the day (29 September 1994) testing took place at my premises confirms that not one of the incoming tests connected to any of my three business lines met the regulator’s mandatory requirements.
In the technical report Brian Hodge, BTech, MBA (B.C. Telecommunications) prepared on 27 July 2007, after viewing the Cape Bridgewater Holiday Camp (SVT) CCAS data for these tests he states:Even though AUSTEL expressed serious concerns about the obvious deficiencies in this SVT, Telstra still used these test result to support their arbitration defence.

“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” (See Main Evidence File No 3)

By the time I received this AUSTEL Telstra letter in 2002, the statute of limitations allowing me to use this information in an appeal had expired. It is clear from Main Evidence File Nos/2 and 3 that the SVT process at Cape Bridgewater Camp was not performed according to the regulator standards.

The AFP issue, recorded in Australian Senate Hansard records of 29 November 1994, has also been addressed on this website in the Senate link, and is just as important to raise here too, in the same way that the 14 May and 13 October 1994 issues have been included above.

Both the May and October sections discuss the way Telstra destroyed evidence. More details related to these issues are also available (See Perverting The Course of Justice/Crimes Act 1958 Crimes-Act-1958-Evidence-File-No-1, Crimes Act 1958 Evidence File No 2, Crimes Act 1958 File No 3 and Crimes Act 1958 File No 4). It is impossible to discern which of these three events was worst; partly because all three are linked to the same topic, i.e. Telstra’s withholding and/or destroying of evidence during litigation. Neither the arbitrator nor the TIO moved to assist me in their capacity as government regulators to help me resolve any of these three major issues. In addition they did not offer to help me in relation to the threats Telstra made. It is now perfectly clear that these three issues were never addressed. It is obvious that there was something radically wrong with the way the arbitrator and TIO administered my arbitration process, but there is much more to come and the story gets even better.

Even a hardened senior Victorian police officer (who was once a police prosecutor and a qualified lawyer) could not believe that an arbitrator stated, in writing, that he and his resource unit read through 24,000 documents even though he never accepted them into the arbitration. In fact, when I first tried to submit some of them, he refused point blank to accept them. How could he, then, have the gall to tell the president of the Institute of Arbitrators that all 24,000 of them had been assessed?

How could such a well-respected learned man, an arbitrator, write such a letter to the Institute of Arbitrators Australia, knowing my claims were under investigation?

If he had told the president the truth, which was that Telstra sent the 24,000 documents to me too late for me to collate, assess and include in my reply to Telstra’s defence; (because I only had 12 days in which to do so), then the government might have investigated these matters at that time.

In response to AUSTEL’s letter noting Telstra’s SVT process conducted at my premises was grossly deficient (refer to Arbitrator File No/2 letter), the Telstra SVT specialist who performed the tests – and who was also part of the management team – replied. However, the defendants demanded that the government not release any documents associated with the SVT process, without prior authorisation from them. In this 28 November 1994 letter to AUSTEL, Telstra states:

“As agreed at one of our meetings and as confirmed in your letter of 16th November 1994, attached please find the detailed Call Delivery Test information for the following customer. This information is supplied to AUSTEL on a strict Telecom-in-confidence basis for use in their Service Verification Test Review only and not for any other purpose. The information is not to be disclosed to any third party without the prior written consent of Telecom.” (See Arbitrator File No/98)

In the 16 November 1994 letter, AUSTEL warned Telstra that the Cape Bridgewater Holiday Camp SVT process at my premises had been deficient. By what legal authority could Telstra Australia insisting on confidentiality? The only legal authority behind such a request would be the Crimes Act 1914.

Later changes to Australian law render this authority irrelevant, so how can Telstra require confidentiality from AUSTEL employees working for the government communications regulator? Arbitrator File No/110 is one of two SVT testing documents discussed in the 29 November 1994 letter from Telstra to AUSTEL. These two Call Charge Analyses System (CCAS) data print-outs clearly show there were not 20 mandatory SVT tests calls generated into each of my three service lines: 03-055 267 267, 03-055 267 230 and 03-055 267 260 on the 29 September 1994. That day, this particular Telstra engineer’s SVT monitoring equipment malfunctioned. The 60 test calls that would normally be required to check faults on these three service lines, were not carried out; the lines were not held open for the 100-120 seconds required to fully test their functioning capabilities.

In October 2008 and May 2011, the Administrative Appeals Tribunals (AAT) heard my two Melbourne FOI matters. The government communications regulator (AUSTEL/ACMA) was the respondent on both occasions. I had still not received my promised discovery arbitration documents from 1994.

Arbitrator File No/110, Main Evidence File No 3 and the letter of 28 November 1994 (see Arbitrator File No/98) supported my claims against certain public servants, employed by AUSTEL, who assisted Telstra to pervert the course of justice during my arbitration. Mr Friedman, senior member, after hearing my claims, found them neither frivolous nor vexatious and supported my quest for justice.

The current ACMA chairman and lawyers were given proof that the author of the 28 November letter dictated what government regulators could or could not do during my government-endorsed arbitration, and that the writer swore under oath (12 December 1994) in his witness statement that the SVT tests met and exceeded AUSTEL’s specifications. The ACMA chairman has failed to act on this incriminating evidence.

This same Telstra employee was named in the Senate Estimates Hansard of 24 June 1997 as advising Telstra employees that the five COT cases (including me) had to be “stopped at all costs” from proving the validity of our claims (see Open Letter File No/24). As part of my AAT submission, I provided both AAT and ACMA with a 156-page Statement of Facts and Contentions, plus a CD containing some 440 supporting exhibits.

Between 24 February 2008 and 14 January 2009, more than 15 letters addressed to various ACMA lawyers and the chairman of ACMA show the contradictions in Telstra’s SVT reports and their sworn witnesses’ statements. These documents, provided during my arbitration process (which was known to be grossly deficient), were handed to both AAT and ACMA as part of the AAT submission. I also included the proof that another set of tests – the Bell Canada International Inc. (BCI) tests – submitted as evidence by Telstra during my arbitration, were also impracticable (see Telstra’s Falsified BCI Report ‘masked identities‘ and Main Evidence File No 3).

This matter was not investigated in conjunction with the deficient Cape Bridgewater SVT process. Two reports – one dated 10 November 1993, the other October 1994 – were both proved grossly inaccurate yet; the arbitrator relied solely on them and furthermore, accepted them as factual evidence. The senior executives of AUSTEL have been shown to be clearly negligent of their duties and this has had grave repercussions for all COT cases, particularly mine. It has further repercussions for the general public and the integrity of the organisation he represents.

29 November 1994: On page 180 ERC & A from official Australian Senate Hansard, it is reported that Senator Ron Boswell asked Telstra’s Legal Directorate::

‘Why did Telecom advise the Commonwealth Ombudsman that Telecom withheld FOI documents from Alan Smith because Alan Smith provided Telecom FOI documents to the Australian Federal Police during their investigations?’ (Senate Evidence File No 31)

In my original letter of 4 July 1994 to Telstra’s arbitration liaison officer I stated:

‘I gave my word on Friday night that I would not go running off to the Federal Police etc, I shall honour this statement, and wait for your response to the following questions I ask of Telecom below’.

At the time of writing this letter I had no intention of providing the AFP with any more FOI documents. However, the AFP came to Cape Bridgewater on 26 September 1994, asking a number of questions concerning this Telstra official. On page 12 of the AFP transcript of my interview at Question 57 (see full AFP transcripts, Australian Federal Police Investigation File No/1), the AFP state:

‘The thing that I’m intrigued by is the statement here that you’ve given (name deleted) your word that you would not go running off to the Federal Police etcetera’.

Between July and December 1994, I informed the arbitrator numerous times 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. This was when I realised that the arbitrator was far from independent. 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.

Furthermore, when Telstra carried out these threats, Dr Hughes covered up this up, as well as the withholding of these discovery documents, when writing to Laurie James, president of the then Institute of Arbitrators Australia, on 16 February 1996. Dr Hughes stated my not-received 24,000 FOI documents were received and read by either him or the arbitration resource unit. There was no mention in that letter that Telstra had not supplied the requested Portland/Cape Bridgewater telephone exchange logbook, which was requested under FOI and through the process of discovery. The truth surrounding these 24,000 not-viewed FOI documents can be obtained by clicking onto our Prologue page. Dr Hughes was aware Telstra had not released this important document – namely the Portland/Cape Bridgewater telephone exchange logbook, which had all the working notes of all my telephone complaints and those of other local Telstra subscribers for the period of my claim. This logbook could not be refuted, yet Dr Hughes would not request this document for me. Even though the Commonwealth Ombudsman’s office also requested this logbook to be supplied, it was unable to obtain it. (See Home Page File No 10 -A to 10-B)

The logbook in any telephone exchange has all entries by technicians who are appointed on a daily basis to locate and fix problems in the region. Not supplying this document under the legal request of discovery, by the opposing side, should have been investigated by the arbitrator: why would Telstra not release it, even to the arbitrator under confidentiality?

It is blatantly obvious the ‘establishment’ that controlled my arbitration process, also denied my rights as an ordinary citizen – an equal before the law – and ultimately deprived me the right of having justice run its due course. The arbitrator and the government (who at the time fully owned Telstra) should have initiated an investigation into why an Australian citizen, who assisted the AFP in their investigations into unlawful interception of telephone conversations, was disadvantaged during a civil arbitration process.

The Log Book

A second maters pertaining to the logbook which we have discussed above is also linked to the billing issues which AUSTEL allowed Telstra to address after the arbitration process.

Had this logbook been received during the arbitration process it would have also exposed Telstra had a systemic billing problem linked to the lockup problems affecting my service and other services routed off of the Portland AXE Ericsson exchange.

It has now been established see Chapter Eight. AUSTEL allowed Telstra to address the lockup problems and other faults in secret, five months after my arbitration was declared over. This meant that it was outside the legal arena of the arbitration process, and therefore denied me the legal right to challenge Telstra. Although the resource unit told the arbitrator and the ombudsman about the ongoing problems on 2 August 1996, they were never investigated during my arbitration. These ongoing problems held both my fax and free-call lines open after I hung up. Therefore: (1) when the line did not release, I was wrongly billed for call time I didn’t use and (2) with the line in lockup mode, customers could not ring in. This problem almost drove the new owner of my business to suicide in 2007 – more than 12 years after 16 October 1995. The regulator allowed Telstra to address these faults outside the arbitration process (see Main Evidence File No 23 Part 1 and File No 23 Part 2). Is this why Telstra wanted us locked down into a legal structured path, because they had friends within the government who would allow Telstra to address the more important documents in private?

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