Chapter Two - Freehill Hollingdale & Page, AUSTEL and Telstra

Legal Abuse in arbitration and exposing crime and corruption within those arbitrations has been a costly process. Heinous, scandalous vile and mischievous crimes were committed by those who controlled the arbitrations. Absent Justice.com is about exposing deception, fraud, maleficent conduct, corruption and evil wrongdoing, which are all part of the COT Cases' story.

COT Case Strategy - Prologue Evidence File 1-A to 1-C

page 5169  SENATE official Hansard – Parliament of Australia 

Three months before the COT Cases signed their settement agreement on 23 November 1993, before they were pressured to turn that commercial settlement agreement into a highly legalistic arbitration process that would eventually cost each claimant hundreds of thousands of dollars to fund, My arbitration cost me more than $300.000.00 in professional fees Telstra and their lawyers Freehill Hollingdale & Page had already set up the "COT Cases Strategy" spuriously prepared by Denise McBurnie [Freehill's] naming me as one of the four COT Cases and their businesses who had to be stopped from receiving their requested FOI documents (see Chapter 1 Unprecedented Deception.  

Six months before this strategy had been concocted by Denise McBurnie Telstra had refused to investigate my ongoing telephone faults unless I first registered them with Denise McBunie. This internal Telstra fault material was being collected daily, and once the arbitration commenced, that fault documentation disappeared. I could not conclusively prove to the arbitrator that my phone faults were still affecting the viability. 

Between 10 January 1994 and 21 April 1994, the Telecommunication Industry Ombudsman Warwick Smith who was also the administrator of the TIO settlement/arbitrations processes officially advised the government and the COT cases, including their lawyers that the arb

Denise McBurnie, of Freehill Hollingdale & Page, wrote to Ian Row, Telstra’s Corporate Solicitor, on 10th September, 1993, discussing strategies to deal with the COT claimants.  Telstra FOI document N00749 is the first page of this strategy and states:-

“Both Freehills and Duesburys would be happy to assist you should any further presentations to Telecom management be required on any of the matters raised in the issues paper or with regard to any other matters concerning management of ‘COT’ cases and customer complaints.” (AS-CAV Exhibit 1 to 47 - See AS – CAV 39-A)

Ms McBurnie names Duesburys as assisting Freehills in this matter.  Duesburys were also involved with the employment of private investigators (paid by Telstra) in relation to Graham Schorer and possibly other COT claimants.

In June 2000, renowned Legal Professional Privilege expert, Associate Professor Suzanne McNicol, provided the COT claimants with the following legal opinion regarding Freehills’ COT Case Strategy document:-

“There is also some potential prima facie evidence of … i.e. knowingly making false or spurious claims to privilege.  For example, there is a potential structure set up for the possible abuse of the doctrine of legal professional privilege in the faxed document entitled ‘COT’ Case Strategy, marked ‘Confidential’ dated 10 September 1993 from Ms Denise McBurnie of Freehill Hollingdale & Page, Melbourne Office to Mr Ian Row, Corporate Solicitor, Telecom Australia.” (AS-CAV Exhibit 1 to 47 - See AS – CAV 39-B)

7th January, 1993:  This internal Telstra note (GS-CAV Exhibit 1 to 88 - See GS-CAV 61) states:-

“You are aware that the COT issue is hotting up again. [Redacted] and Rosanne Pittard are to deal with the media/politicians on this subject. I will be dealing with AUSTEL as necessary.”

“Would you please ensure that all other parties in your state are aware of this so that we don’t trip up.”

Was this statement made after it had been revealed Rosanne Pittard withheld vital network fault information from at least one COT claimant during settlement?  During June 1993, AUSTEL wrote to Telstra condemning this particular type of misleading and deceptive conduct.

2nd February, 1993:  This letter from Frances Wood, AUSTEL’s Manager – Service Quality, to Telstra’s Corporate Secretary, Jim Holmes, confirms that a draft terms of reference for a commercial assessment process for the COT cases was being considered.  On page three of this letter, Ms Wood states:-

“It was AUSTEL’s understanding – and that of the COT Cases – that the reason there was emphasis placed on an independent assessment instead of an arbitration was exactly so that business losses could be assessed and relative causation estimated.”

“These draft terms of reference do not give the assessor that task. Quite the contrary: he or she is charged to look at points such as –

• the duty of each claimant to mitigate any loss
• any efforts of Telecom directed at minimising the alleged loss of the Claimant”

“It is surprising that Telecom should have though these terms of reference would be acceptable to Mrs Garms … or that they would be perceived as ‘in good faith’ by a third party.”

“Acceptable terms of reference …

• that the assessor should reach a judgement as to –

the adequacy of the complainants’ telephone service

the business losses of the two claimants since establishing their businesses at their present locations

the causes of these losses (including the general economic environment, and local circumstances, and the effects of the telephone service). …”

“As stated at the outset, these draft terms of reference do not fulfil the promise of good faith.  Unless terms of reference showing there good faith in the process are provided by Thursday 4 February, it is AUSTEL’s intention to report to the Minister under the terms of section 36 (c) of the Telecommunications Act 1991 that it believes, according to the information currently available to it, in these cases that Telecom has treated these customers unfairly and continues to do so, and that AUSTEL’s best efforts at resolving the issues have failed.” (GS-CAV Exhibit 1 to 88 - See GS CAV 62)

Please note: throughout this chronology of events, we will quote Ms Woods’ letter and AUSTEL’s understanding that the COT cases’ Fast Track Settlement Proposal was a commercial assessment process and the assessor was to make a judgement on the:

• “adequacy of the complainants’ telephone service”.

3rd February, 1993:  Telstra FOI documents, folio G95148 to G95152 (GS-CAV Exhibit 1 to 88 - See GS CAV 63), are minutes of a scheduled conference held to discuss ongoing communications problems within the Telstra network.  These documents were only released to Graham Schorer on 13th October 1998, under pressure applied by the Senate working party, and were withheld from the COT cases during their respective arbitrations.  The importance of these minutes and the various similar monthly minutes could well have brought a different set of findings in the COT case arbitrations, as GS 63 confirms Telstra knew there were lock-up problems in the network.  Ericsson equipment and AXE exchange issues were also raised during this conference meeting.

10th February, 1993:  This letter from Jim Holmes to Graham, FOI folio R17155, discusses the future settlement proposals for Ms Garms and Ms Gillan, and mentions only an ex gratia-type settlement, not arbitration. (GS-CAV Exhibit 1 to 88 - See GS CAV 64)

15th February, 1993:  Ian Row, Telstra’s Corporate Solicitor writes to Mr Schorer acknowledging that the process for settling the COT cases will be an independent assessment process.  He writes:-

“I am also instructed to advise that Telecom has no difficulty in accepting your recommendation that Mr Gordon Hughes, current President of Law Institute Victoria be appointed as the independent assessor.” (GS-CAV Exhibit 1 to 88 - See GS CAV 65)

16th February, 1993:  Telstra’s Jim Holmes writes to Graham again and states:-

“Importantly you will note that Telecom has included a reference to the possible use of Mr Archibald QC’s services. Separately we have agreed to Gordon Hughes to be the Independent Assessor (if available and willing).” (GS-CAV Exhibit 1 to 88 - See GS CAV 66)

18th February, 1993:  Telstra FOI documents, folio G95153 to G95159 (GS-CAV Exhibit 1 to 88 - See GS 67) are minutes taken during another scheduled conference held to discuss ongoing communication problems within the Telstra network. These documents were also withheld during the COT cases’ arbitrations.  This minute further confirms the lock-up problems that Graham and Alan complained of were not imaginary.

  “(3)Discussion of recent faults

“MELH
IOG-11B EX-A node restarted and remained in isolated blocked state. Attempts to recover the node by reloading and deblocking node A were unsuccessful.” (Folio G95156)

“The variations in data in different regions across the county raise concerns about the repeatability and consistency of the data regeneration program (ELISA). Martin Spear advised that a conversion prerequisite is that data is checked to be at a defined /36 standard. The standard exists and work has been initiated for South Melbourne (SMEX).

The problems experienced when taking the AX62 model to /66 has reduced confidence in the ELISA data regeneration program. … Another attempt must also be made to convert AX62 by Ericsson.” (Folio G95157)

  “The number of software blocks with used correction area greater than 75% is a continuing concern. Colin Campbell advised of an upcoming CNA which will address some of the critical blocks.” (Folio G95158)

4th March, 1993:  This letter (FOI folio R20297) to Telstra’s Rosanne Pittard from Denise McBurnie of Freehills confirms Freehill Hollingdale & Page and Duesburys (accountants) were reporting on Graham’s matters. (GS-CAV Exhibit 1 to 88 - See GS CAV 68)

10th March, 1993:  Rosanne Pittard’s internal letter to David Oertel, Managing Director of Telecom Commercial, states:-

“Mr Graham Schorer of GM Holdings trading as … Golden Messenger initiated legal action against Telecom regarding misrepresentation under the Trade Practices Act for the sale of a Flexitel in 1987.  The Flexitel is a key-system/PABX hybrid which subsequently proved to be unpopular with limited application.  Mr Schorer’s firm also experienced some network faults and congestion.  The extent of GM’s claim is currently some $2m plus costs plus statutory interest. …”

“I have briefed solicitors on the following strategy:

• Newsolicitors appointed (Freehill, Hollingdale and Page) and work schedule agreed …
• Payment into court to be made. This effectively limits our liability for legal costs should we lose. …”

“I will still do everything in my power to avoid this matter going to Court without making irresponsible payment.”

“Your approval is therefore sought for payment of $250,000 to the Federal Court of Australia in the knowledge that other payments may follow.” (GS-CAV Exhibit 1 to 88 - See GS CAV 69)

15th March, 1993:  This letter from Denise McBurnie of Freehills to Telstra’s Rosanne Pittard, FOI folio C05313, confirms that Equity Investigators were involved on behalf of Telstra, Duesburys and Freehills concerning GM Holdings.  Denise McBurnie states:-

“I apologise for the state of the handwritten statement in the Investigator’s Report.” (GS-CAV Exhibit 1 to 88 - See GS CAV 70)

AUSTEL found the Australian Government Solicitor (AGS) wrote to Equity Adjusters, the private investigators mentioned in Telstra’s FOI schedules T, ADV and LPP, on 30th October, 1992 regarding Graham Schorer – Golden Messenger.  AUSTEL concealed this from Mr Schorer until 2008.

Again, the Investigator’s Report referred to by Denise McBurnie, in her correspondence with Equity Adjusters, was never provided to Mr Schorer in any of Telstra’s FOI releases.

16th March, 1993:  Telstra FOI folio C05306 confirms that Telstra provided Freehills with a list of addresses and phone numbers of those involved in the GM dispute.  The fact that private investigators were now involved suggests the list of names and addresses supplied by Telstra to Freehills were probably provided to Equity Investigators. (GS-CAV Exhibit 1 to 88 - See GS CAV 71)

April 1993:  Telstra FOI folio 102019-102020, entitled Terms of Reference for an Independent Assessment, is given to two COTs (Ann Garms and Maureen Gillan), stating:-

“The Terms of Reference for the Independent assessment are as follows:

• The Independent Assessor shall initially establish whether faults existed in the telephone services provided to the Claimants and whether such faults resulted in losses to their individual businesses, the financial damage (if any) to the businesses caused by those faults and a reasonable amount of compensation for such damage.
• In establishing whether faults existed, the Independent Assessor must also establish the relevant dates at which certain faults are alleged to have occurred.
• The Independent Assessor shall determine the business losses of the Claimants since first reporting telephone faults in their respective businesses in their present locations.” (GS-CAV Exhibit 1 to 88 - See GS CAV 72)

This document confirms the COT case matters were supposed to be a commercial loss assessment process not arbitration.

6th April, 1993:  This letter from Denise McBurnie (seconded from Freehills), FOI folio 001901, to Andrew Moyle, confirms Freehill Hollingdale & Page were firmly entrenched in Graham Schorer’s matters.  Please note: Telstra seconded Andrew Moyle, during 1993, from Freehills to handle the COT case issues. (GS-CAV Exhibit 1 to 88 - See GS CAV 73)

8th April, 1993:  This letter, FOI folio R20084, from Denise McBurnie to Telstra’s Rosanne Pittard regarding GM matters, notes:

“I have been advised by Freehills that in addition to Duesburys’ account, they are yet to receive accounts from senior and junior counsel and the private investigators.

Could you please attend to payment of the enclosed account.” (GS-CAV Exhibit 1 to 88 - See GS CAV 74)

The above two aforementioned letters, C05313 and R20084, support the COT members suspicions that they were under surveillance, from late 1992 through to at least early 1993.

During this same period, Cathy Ezard (now Alan’s partner), was a professional associate of Alan’s.  Cathy signed a Statutory Declaration, dated 20th May, 1994 explaining a number of sinister happenings when she attempted to collect mail on Alan’s behalf from the Ballarat Courier Newspaper office (AS-CAV Exhibit 1 to 47 - See AS – CAV 22).  This declaration leaves questions unanswered as to who collected Alan’s mail and how did they know there was mail to be collected from the Ballarat Courier mail office.  On both occasions, when this mail was collected by a third person, Alan had telephoned Cathy, informing her the Ballarat Courier notified Alan there was mail addressed to Alan waiting to be picked up.

On pages 12 and 13 transcript, from the AFP inquiry into Alan’s allegations that Telstra unlawfully intercepted his telephone conversations, the AFP state at Q59:-

“And that, I mean that relates directly to the monitoring of your service where, where it would indicate that monitoring was taking place without your consent?” (AS-CAV Exhibit 1 to 47 - See AS – CAV 23-A)

21st April, 1993:  Telstra internal email FOI folio C04094 from Greg Newbold, to numerous Telstra executives and discussing “COT cases latest”, states:-

“Don, thank you for your swift and eloquent reply.  I disagree with raising the issue of the courts.  That carries an implied threat not only to COT cases but to all customers that they’ll end up as lawyer fodder.  Certainly that can be a message to give face to face with customers and to hold in reserve if the complaints remain vexacious [sic].” (GS-CAV Exhibit 1 to 88 - See GS CAV 75)

27th April, 1993:  Telstra FOI folios G95165 to G95167 state:-

“The list of outstanding /66 faults was discussed and prioritised with the result being the new ‘Top Ten’ lists,”

thus confirms problems and faults in Telstra’s network at the time Graham was registering his complaints. (GS-CAV Exhibit 1 to 88 - See GS CAV 76)  Please note the reference to Ericsson AXE exchange problems in this document.

Billing Problems

21st May, 1993:  Alan’s 008 billing account for this date demonstrates how Alan proved conclusively that Telstra charged him for calls that did not connect to his service during the period the MCT equipment was installed on his service line, due to the 90-second delay/lockup period after each successful terminated call.  These short duration calls existed from prior to this date right through until August 1996, as is shown in our reporting.

Why did Telstra’s 008 account, for 21st May, 1993 show 5-second to 20-second calls terminating at Alan’s business (one after another) when the MCT equipment disallowed this to happen?  Mrs Haddock from Melbourne tried to ring Alan on this particular day and later wrote of her concerns. She was one of the people who referred to a woman’s voice, on what she thought was Alan’s answering machine, when she arranged her bookings. As Alan recorded the answering machine message with his own voice in late 1992, who did Ms Haddock leave her particulars with?

BRIEFCASE SAGA

3rd June, 1993:  Two Telstra technicians, David Stockdale and Hew Mackintosh, visit Alan’s business, to investigate his continuing complaints regarding his phone service, and inadvertently leave behind a briefcase.  The contents of this briefcase confirmed Telstra knew, before Alan’s settlement on 11th December, 1992 that major faults existed in their network, but they did not disclose this to Alan during his settlement (AS-CAV Exhibit 1 to 47 - See AS – CAV 3, 4 and 5, and AS – CAV 9-B).

9th June, 1993:  This letter, from AUSTEL to Telstra, is also part of the “briefcase saga” as it confirms AUSTEL was concerned Telstra may have misled Alan during his settlement, because of the evidence Alan found in the briefcase.  On page one, paragraphs four and five, when referring to Alan’s allegations that Telstra withheld this information from him on 11th December, 1992 this letter states:-

“Further he claims that the Telecom documents [found in the briefcase] contain network investigation findings which are distinctly different from the advice which Telecom has given to the customers concerned.”

“In summary, these allegations, if true, would suggest that in the context of the settlement Mr Smith was provided with a misleading description of the situation as the basis for making his decision. They would also suggest that the other complainants identified in the folders have knowingly been provided with inaccurate information.”

“I ask for your urgent comment on these allegations. You are asked to immediately provide AUSTEL with a copy of all the documentation which was apparently inadvertently left at Mr Smith’s premises for its inspection. …”

“In light of Mr Smith’s claims of continuing service difficulties, I will be seeking to determine with you a mechanism which will allow an objective measurement of any such difficulties to be made.” ( GS-CAV Exhibit 1 to 88 - See GS-CAV 76)

Similarly, Telstra also advised Graham there were no known problems affecting his service, even though he later received FOI documents confirming otherwise.

16th June, 1993:  AUSTEL’s John MacMahon, General Manager Consumer Affairs, writes to Graham stating:-

“Attached is a draft letter which I intend to send to Telecom concerning the issues you have put to me.

I would appreciate your filling in the details of your current complaints and suggesting any other correction or omissions which you believe should be in the letter.” (GS-CAV Exhibit 1 to 88 - See GS 77)

16th June, 1993:  This draft letter from AUSTEL to Telstra’s Dennis Hambleton, Director of Regulatory, states:-

“Mr Schorer maintains that he continues to experience a range of significant problems with his telephone system…” ( GS-CAV Exhibit 1 to 88 - See GS-CAV 78)

16th and 22nd June, 1993:  The Telecommunication Industry Ombudsman (TIO) Board and Council are formed.  The TIO office was to deal with the ongoing phone problems and faults as a separate identity to AUSTEL.

Telstra’s Ted Benjamin (who was involved in the COT matters since1992), was appointed to the TIO council on 22nd June 1993.  Telstra’s Corporate Secretary, Jim Holmes, and Telstra’s Corporate Affairs Officer, Chris Vonwiller, were appointed to the TIO Board on 16th June, 1993. AS-CAV Exhibit 48-A to 91 - See AS-CAV 48-B)

It is important to highlight the names of Jim Holmes and Ted Benjamin, as they both played very important roles in the COT arbitrations as will be seen below.

17th June, 1993:  Ms Rosanne Pittard’s memo, Telstra FOI folio K03281, is remarkable:-

“I refer to our telephone conversation regarding the material contained in Mr Macintosh’s briefcase.”

“Please find attached a letter from AUSTEL requesting information regarding that incident.  Whilst I can respond to the details regarding the information provided to him at the time of settlement I cannot comment on the variation between what Mr Smith was told and the contents of the Network Investigation files.” (GS-CAV Exhibit 1 to 88 - See  GS-CAV 79)

The 9th June 1993 AUSTEL letter (above), and this internal Telstra memo shows Telstra was prepared to deceive the COT cases concerning their telephone services.

17th June, 1993:  AUSTEL’s General Manager of Consumer Affairs writes to Telstra’s Dennis Hambleton stating:-

“Mr Schorer maintains that his telephone service continues to be affected by the following faults –

• caller receives a recorded voice stating that the number has been disconnected
• caller receives engaged signal when all or most lines are free
• caller receives a ring tone when no ring is heard by the operator and all phones are manned
• line drops out when call is answered. “ (GS-CAV Exhibit 1 to 88 - See GS-CAV 80)

7th July, 1993:  This internal Telstra email, FOI folio C04054, discusses whether Telstra should speak to Clinton Porteous, a journalist with the Herald Sun, and attempt to stop him listening to Graham Schorer regarding Telstra’s network problems.  The email states:-

“I propose that we consider immediately targetting key reporters in the major papers and turn them on to some sexy ‘look at superbly built and maintained network’ stories.”

This suggests that Telstra had a number of ways of deflecting the reporter’s focus from Graham Schorer’s evidence. (GS-CAV Exhibit 1 to 88 - See GS-CAV 81)

12th July, 1993:  Telstra FOI documents M34204 – M34205 (18) confirm I was complaining of cut-offs in March 1993.  Telstra states there were 45,993 degraded minutes yet the DMR and Lanes Arbitration Technical Report (30th April, 1995) refers to only 405 degraded minutes.  The Technical Report also claims there were only 43,500 errored seconds (ES), when the Telstra document shows 65,535.  It seems DMR and Lanes played down the actual number of faults.  These are just two samples of this type of evidence.

The three attached documents from the AUSTEL COT Report of 13 April, 1994 (see pages163 to 165) confirm that, after the new RCM was installed at Cape Bridgewater in August 1991, numerous problems affected the RCM at Cape Bridgewater (19) until at least July 1993.

At this point, it is important to raise the issue of a witness statement that Telstra’s Gordon Stokes swore and used in the FTAP in 12 December 1994. At point 2 of his Statement, Mr Stokes states:-

“I transferred to Network Operations Portland in 1989 and between 1990 and 1994 I was responsible for maintaining switching equipment at the Portland exchange.”

Mr Stokes further states:-

“After the Portland to Cape Bridgewater RCM systems were installed, I became aware that the performance of the systems could be measured using the facility known as CRC.  I checked the CRC error counters regularly between the date the RCM systems were installed and February 1994 when I left Telecom.  Checking the CRC counters in this way was normal maintenance practice.  I can recall checking the CRC counters prior to March 1993.  When I checked the CRC counters pre March 1993 I did not observe any errors that could have impacted upon the telephone service provided to Cape Bridgewater customers.  A typical reading for each RCM system was 5 to 10 errored seconds, no degraded minutes and severely errored seconds.” (20)

If Mr Stokes did check the RCM regularly, as he states, why didn’t he notice the fault alarm system was not installed after the RCM replaced the RAX exchange in August 1991, 20 months before?  Furthermore, Mr Stokes’ statement does not correlate with a report, made after the Melbourne pair gain support group visited the Portland exchange, which states, “At this stage we had no idea over what period of time these errors had accumulated.”

If Mr Stokes’ Witness Statement is correct in that he “checked the CRC counters pre-March 1993, [and] I did not observe any errors”, then 65,535 errored seconds and 45,993 degraded minutes must have accumulated in the three days between 28 February and 2 March.

Throughout 1993, I continued to receive numerous letters from clients and business associates, documenting their frustrating experiences when they attempted to contact me by phone (see also document 15).  The stress became increasingly difficult to bear and, although I tried to convince myself that the problems were diminishing, in reality, nothing was improving at all.

28th July 1993:  AUSTEL’s John MacMahon writes to Telstra:-

“In my letter of 9 June I asked for a copy of all documentation left inadvertently at Mr A Smith’s premises. … It has now been suggested that there was other documentation in that file. Would you please clarify this issue and if so, arrange for a copy of the other documentation to be made available to me immediately.” (AS-CAV Exhibit 1 to 47 - See AS-CAV 33)

30th July, 1993:  Telstra internal facsimile, FPO folio R00660, from the Manager of Co-ordination and Performance Reporting to Telstra’s Corporate Secretary, J Holmes, states:-

“In relation to Cot Cases, Austel appear to now [be] making a number of separate, but related, approaches to Telecom – viz – Regulatory, Your Office and Ken Beattie in Queensland.  It is [a] difficult, and potentially dangerous, arrangement in which to control the flow of information to Austel.” (GS-CAV Exhibit 1 to 88 - See  GS-CAV 82) 

3rd August, 1993:  This letter from AUSTEL to Graham states:-

“In conversations with you I have mentioned the measures we have taken to ascertain the level of phone service you are receiving. This note will formally advise you of the situation. We have sought from Telecom –

• details of the performance standards set for the exchange to which you are connected and the actual performance over the past 12 months
• a copy of the fault record for the past 12 months and for the 50 consumers with numbers both above and below yours
• a description of the supervisory/monitoring equipment used in the most recent 12 months to monitor the standard of service, when it operated and relevant conclusions.” (GS-CAV Exhibit 1 to 88 - See GS-CAV 83)

During Graham’s FTAP, he was not provided with the information AUSTEL sought from Telstra via this letter.  As shown above and below, Telstra withheld technical and general internal information under the guise of Legal Professional Privilege (LPP), therefore the material sought by AUSTEL may well have been withheld under LPP.

4th August, 1993:  The minutes from this meeting confirm Graham Schorer met with three Senior AUSTEL representatives, Chair Robin Davey, Mr Elsegood, AUSTEL Technical Advisor Monitoring Carrier Unit and John MacMahon, General Manager – Consumer Affairs.  This document states:-

1. Mr Schorer had sought the meeting to present documentation he had which he alleged supported his view that Telecom had acted in a misleading and deceptive manner.
2. He commenced by drawing attention to a range of Telecom documents he had obtained through the court process. He undertook to give a copy of all those and other relevant documents to AUSTEL. …
3. Mr Schorer said he had some problems with AUSTEL’s approach involving testing – he had a particular concern that it did not address the possibility of calls not reaching the exchange. …
4. Mr Schorer mentioned that reporting faults to 1100 elicits the response that it can only respond where AXE equipment is involved.” ( GS-CAV Exhibit 1 to 88 - See GS-CAV 84)

Please note:  Graham Schorer was finally provided with Telstra FOI documentation, through the Commonwealth Ombudsman office and Senate Working Party investigation (see FOI folio G95136 to G95205, issue date 13/10/1998), confirming there were numerous problems affecting Ericsson AXE exchange equipment, including known lock-up problems and incorrect RVA faults being experienced throughout the Telstra network.

12th August, 1993:  A singles club enquiry has Alan worried.  This letter confirms Ms Espinoza’s recollection of the same, constantly engaged problems she experienced while trying to book a weekend.  (AS-CAV Exhibit 1 to 47 - See AS-CAV 34-A)

Alarmingly, Telstra FOI document K03870, dated 17th June (assume 1993), refers to the same Rita Espinoza and her friend Elisie Stenoya (AS-CAV Exhibit 1 to 47 - See AS-CAV 34-A).  This document not only records the two personal phone numbers of these two ladies, it also confirms Telstra was fully aware of the times Alan’s office worker left the business while Alan was in Melbourne.  This document does not state any other place, only Melbourne.  Alan used to visit Melbourne on a regular basis during 1992 to 1993 (visiting singles club owners who might be interested in using the Cape Bridgewater for their next club get-away).  Did Telstra even know where Alan stayed, with whom and which clubs he visited?

17th August, 1993:  The phone problems continue.  Ms Cullen from Daylesford, Victoria attempts to phone Alan’s business but reaches a dead line each time (AS-CAV Exhibit 1 to 47 - See AS-CAV 35-A).  Once more, Alan is charged for these attempts as four short duration calls on his 008/1800 service (AS-CAV Exhibit 1 to 47 - See AS-CAV 35-B).  All this evidence was submitted into arbitration, but never addressed.  When Ms Cullen finally made a booking and arrived in February 1994, Ms Cullen’s partner wrote of the problems they both experienced when trying to use the camp’s coin-operated Gold Phone service (AS-CAV Exhibit 1 to 47 - See AS-CAV 35-C).

19th August, 1993:  Telstra FOI folio R10606, confirms that Telstra’s Ms Pittard contemplated seeking legal advice regarding how to withhold COT FOI information under Legal Professional Privilege:-

“The request for files and other documents are onerous. … How much do they want? A warehouseful is not out of the question.  Who will copy these?  I don’t have resources or money for agency people to spend time photocopying.  Will Austel pay? (The last question was a joke – I know the answer.) …

I believe we should quarantine any papers associated with legal action, refuse to supply papers associated with settlements and refuse to supply any papers marked Legal professional privilege – but we should seek legal advice on same.”

“The results of the tests are of a concern to me. What confidentiality will be guaranteed? Austel has had close contact with these customers – what will ensure they don’t pass test results on? What are the legal implications if they do? …”

“If they conclude that Telecom was in some way negligent or at fault, there are serious implications for our liability; we could be vulnerable to some form of action by the COTS – would the Austel report be admissible as evidence?”

“What promises have been made to the COTS as a result of the testing? None I
hope.”

“The testing at customer premises causes great difficulties for us.”  (GS-CAV Exhibit 1 to 88 - See GS-CAV 86)

The sentences marked in bold (our emphasis) above, refer to a number of tests carried out by Telstra at various COT cases businesses.  This email also suggests that Ms Pittard was in charge of most of the COT cases’ issues and the tests.  Why then, is Ms Pittard so concerned of the test results being made available to the COT cases or to AUSTEL?

August 1993:  This Telstra FOI document folio A58983 is not dated but appears produced before, and no later than, August 1993, even though it relates to the forthcoming settlement proposals. This document states:-

• “Reports just in – confusing/contradicts strong efforts – unsatisfactory results.
• Most cases need more investigation.
• First must resolve and identify problems.
• Settlement discussions cannot proceed until problems identified.” (GS-CAV Exhibit 1 to 88 - See GS 87)

TELECOM SECRET – COT CASES AND AUSTEL

19th August, 1993:  This internal Telstra memo from Harvey Parker, Group General Manager – Commercial and Consumer, states:-

“Austel’s direction has enormous workload implications (notwithstanding technical constraints and misunderstandings) and also has significant legal complications.  Some of the material sought is under Legal Professional privilege.” (GS-CAV Exhibit 1 to 88 - See GS-CAV 88)

Please note: AUSTEL’s request for documents from Telstra, was ONLY associated with the COT cases telephone exchange material, i.e., technical information surrounding Telstra’s testing of the exchanges and the customer premises and all relevant known fault information concerning the COT businesses.  AUSTEL did not request Telstra to supply any documentation pertaining to legal issues.

Mr Harvey’s statement:-“Some of the material sought is under Legal Professional privilege,” confirms COT service fault information was being held under LPP and echoes Rosanne Pittard’s FOI folio R10606 discussed above, also dated 19th August 1993, i.e.,

“Some of the documents on the files are Telecom Secret, some are Legal professional privilege.”

When assessing these two (19th August, 1993) documents with the Freehill Hollingdale & Page strategy, dated 10th September, 1993 by Denise McBurnie (discussed below), it seems reasonable to assume that, as Telstra withheld relevant fault information from both AUSTEL and the COT cases (during their respective arbitrations), the arbitrator was unable to correctly assess ALL relevant fault information.

23rd August, 1993:  A Telstra internal email discussing The Briefcase (FOI R09830) states:-

“The files on Smith and Dawson have been provided to Austel via Craig Downing of Regulatory at the request of Austel following a meeting with Austel on the issue.  The other papers were not requested and not provided. …”

“Subsequently it was realised that the other papers could be significant and these were faxed to Craig Downing but appear not to have been supplied to Austel at this point.”

“The loose papers on retrofit could be sensitive and copies of all papers have been sent to Ross Marshall.” (AS-CAV Exhibit 1 to 47 - See AS – CAV 37-A)

Please note: In the Arbitrator’s award, dated 11th May, 1995 the arbitrator, Dr Hughes, states:-

“The claimant has not asserted that the settlement reached was inadequate, unreasonable or unfair and there is no basis in fact or law for setting aside or avoiding the settlement reached by Telecom and the claimant in respect of all claims prior to 11th December 1992.

In making an award of compensation, it is necessary for me to take into account the amount paid by Telecom to the claimant by way of settlement on 11th December 1992. Particulars of this payment are set out in part 3.3(a) of these reasons. I have taken this payment into account.”

Alan’s response to Telstra’s Arbitration Defence of 12th December, 1994 shows the settlement process, engineered by Ms Pittard on 11th December, 1992 was administered deceptively.  To further support Alan’s allegations that Telstra misled him during the settlement of 11th December, 1992 Alan provided Dr Hughes with a list of FOI documents, including an AUSTEL letter stating if Telstra withheld fault documentation from Alan, during his settlement, then they misled him. AUSTEL previously withheld fault documents themselves – C04006, C04007 and C04008 (AS-CAV Exhibit 1 to 47 - See AS – CAV 5).

In Alan’s reply to Telstra’s arbitration defence on this deceptive conduct Alan states, on p2:-

“I would submit that for Ms Pittard as General Manager of Telecom Commercial Victoria/Tasmania to take these actions and execute these actions is one of negligence and a breach of statutory duty”

and on p4:-

“Mr Arbitrator you would find that Telecom has been negligent in their dealings with my phone service and the actions of Ms Pittard in refusing me historical fault information prior to the settlement was not only negligent, misleading anddeceptive, it was also unconscionable conduct.”

Why did Dr Hughes say that Alan did not complain about the settlement process when Alan had clearly documented how unreasonable and unfair the whole settlement process had been?

1st September, 1993:  This internal Telstra email (FOI folio A08232), from Don Pinel to Rosanne Pittard, states:-

“Ian has asked to put together a small team urgently to look at imaginative technical options for the COT customers to address their concerns.” (AS-CAV Exhibit 1 to 47 - See AS – CAV 37-C)

This email does not suggest Telstra believes the COT cases’ complaints are false.

8th September, 1993:  A further Telstra internal email (FOI folio A02303), from Don Pinel to Ross Marshall, regarding RVA on calls to connected numbers, states:-

“There seems to be an opinion that calls from ARE or ARF to AXE have a protocol problem that results in significant call failures. Do you have any info on this?” (AS-CAV Exhibit 1 to 47 - See AS – CAV 38)

Both Alan and Graham’s business were routed off AXE exchanges.

10th September, 1993:  Internal Telstra FOI document A04958 states:-

“Connection of monitoring equipment at Schorer’s premises requires AT&T attendance as they hold site maintenance contract. …”

“MacMahon embarrassed, apologetic etc re stuff-up at Schorer’s”. (GS-CAV Exhibit 89 to 154(b) - See GS-CAV 92)

Freehill Hollingdale & Page

10th September, 1993:  This document, FOI folio N00749 to N00760, from Denise McBurnie to Telstra’s Corporate Solicitor, Ian Row, confirms Ms McBurnie advised Mr Row it would be appropriate to hide relevant COT information under Legal Professional Privilege.  FOI folio N00750 confirms Ms McBurnie appears to have singled out four of the COT Cases businesses Golden Messenger, Tivoli Theatre Restaurant, Japanese Spare Parts and the Cape Bridgewater Holiday Camp, for Legal Professional Privilege. (GS-CAV Exhibit 89 to 154(b) - See GS-CAV 93)

Associate Professor Sue McNicol, Australia’s leading specialist in Legal Professional Privilege, has assessed the document titled COT Case Strategy, Prof McNicol advised that by using this strategy to withhold non-legal FOI documents under Legal Professional Privilege, Telstra knowingly made false or spurious claims to privilege. (GS-CAV Exhibit 89 to 154(b) - See GS-CAV 94).

September, 1993: This internal Telstra email FOI folio K24548, appears to have been produced around the month of September 1993, and states:-

“It would be best to avoid COT Case member, Mr Graham Schorer of Golden (Messenger) to avoid embarrassment as you say. His main numbers are 03 329 7355 and 03 329 7255, but he has several rotary groups and about 40 lines in total.”

“Please prepare the results for the Corporate Lawyers under legal professional privilege and limit distribution of the results.” (GS-CAV Exhibit 89 to 154(b) - See GS-CAV 96)

14th September, 1993:  Telstra’s Jim Holmes writes to AUSTEL’s John MacMahon, stating:-

“A further problem has arisen with the monitoring of Golden Messenger, for whom as you are aware, connection of monitoring was delayed due to the numbers initially advised by Austel not being the right ones.  On Friday 10 September staff attempted to connect the new numbers but found that the terminal blocks provided at the Golden Messenger PABX do not allow for the parallel connection of additional wires.  There is therefore no obvious access point to allow monitoring at the customer’s premises. Further approaches are being explored in conjunction with the PABX supplier but at this stage no solution has been found.” (GS-CAV Exhibit 89 to 154(b) - See GS-CAV 97)

15th September, 1993:  Telstra internal memo FOI folio K34881/K34882 states:-

“The Golden Messenger PABX exchange lines use the same signalling between the PABX and exchange as a normal telephone service. Clear down works as follows:

“1. Incoming Call to PABX from the network

• If only the distant A party restores the line is cleared forwarded to the PABX exchange line appearance at the terminating exchange [sic]. The PABX exchange line goes to line lock-out condition and the PABX extension receives busy tone until the PABX extension clears.
• If only the B party clears (PABX extension clears) the PABX will open the loop to the exchange. The exchange circuit goes into time supervision.  After 90 seconds a Force Release signal is sent to the A parties [sic] originating exchange.  This clears the connection orward and sends the PABX exchange line circuit to line lock-out and the PABX extension receives busy tone until it clears.”

“The above assumes normal categories apply. Malicious Call Trace category changes the above to give control of release to the B party.  The issues relevant to Mr Schorer’s concerns are:

1. In case 1(b) – for 90 secs after the PABX extension hangs up on an incoming call the exchange line is held in the line-lock-out condition and cannot be reused.
2. The Forces Release signals within the Telecom network are not passed to the PABX on ring down circuits.
3. In-dial PABXs have different signalling arrangements and would normally receive clear down signals from the Telecom exchange.”

“Case 1(b) does not explain Mr Schorer’s service difficulties as while the exchange line is held in the line lock-out condition, new incoming calls would be offered to other exchange lines in the PABX group.” (GS-CAV Exhibit 89 to 154(b) - See GS-CAV 98)

Below (25th January, 1994) it will be seen that there were problems in the CAN servicing Golden Messenger.  It is also highlighted below that AUSTEL allowed Telstra the privilege of instructing Bell Canada International (BCI) they need only to test the inter-exchange network servicing the COT customers – and not the CAN.

15th September, 1993: This Telstra email FOI folio R03173, subject “Access to Files” states:-

“The Corporate Solicitor’s office has two files in relation to the COT cases.

A general COT case file and
The litigation file relating to Golden Messengers.”

“All material on these files ought to be claimed as legal professional privileged.” (GS 99)

17th September, 1993:  Telstra’s Corporate Secretary Jim Holmes’ email to Telstra’s Don Pinel (FOI folio A00097), regarding the COT project team, states:-

“We have an arrangement with Freehills.  No separate contract is needed.  Go straight to Andrew Moyle.” (GS 100)

21st September, 1993:  Don Pinel sends an email to Jim Holmes, stating:-

“Met at length with Freehills this morning (Ian Row was there).  I have arranged for Denise McBurnie to provide legal [sic] input to the project and suggested that she come to tomorrow’s meeting to meet the players and pick up the threads.”
(GS-CAV Exhibit 89 to 154(b) - See GS-CAV 101)

23rd September, 1993:  This internal Telstra email from Don Pinel to Rosanne Pittard and Corporate Secretary Jim Holmes, FOI folio R03022, advises the Project Team that all correspondence from COT (and similar) customers should be channelled through Denise McBurnie of Freehills.  He states:-

“Would you please ensure that with all customers that are, (or have the potential to become) serious complaints, correspondence is processed through Freehills with initial acknowledgement by the Region.” (GS-CAV Exhibit 89 to 154(b) - See GS-CAV 102)

27th September, 1993:  This letter from Graham Schorer to Robin Davey, AUSTEL Chair, explains Mr Schorer’s concerns regarding directions to register any further phone complaints through Andrew Moyle of Freehills.  Mr Schorer states:-

“Mr Moyle informed me that any future communique with Telecom had to be placed in writing and sent directly to him to enable the information to be acted upon immediately.” (GS-CAV Exhibit 89 to 154(b) - See GS-CAV 103)

28th September, 1993:  Robin Davey writes to Telstra’s CEO Frank Blount, stating:-

“Telecom now appears to have a done a ‘back flip’ by instructing its solicitors, Freehill Hollingdale & Page, to inform Mr Schorer that he must ‘…address any concerns of a legal nature involving our client and your business, direct…’ to their office. While Freehill’s [sic] letter of 27 September 1993 … to Mr Schorer states that ‘…does not in any way preclude… [him] … from addressing non legal matters through the normal channels of communications previously agreed…’ between him and Telecom, it places Mr Schorer in the impossible position as a layman of having to distinguish between ‘concerns of a legal nature’ on the one hand, and ‘non legal matters’ on the other. …”

“As indicated in my letter to Mr Campbell, there is a strong feeling among the COT Cases of a lack of good faith on Telecom’s part.  If Freehill’s letter correctly reflects Telecom’s instructions it can only serve to reinforce that feeling.” (GS-CAV Exhibit 89 to 154(b) - See GS-CAV 104)

And, Telstra’s internal email, FOI folio C02840, subject COT media latest states:-

“Steve Lewis (Australian Financial Review) is following up on his own yarn NOT with the Davey letter to the Minister but with the Davey letter to the CEO raising concerns about our use of Freehills.” (GS-CAV Exhibit 89 to 154(b) - See GS-CAV 106)

September, 1993:  Telstra FOI document marked Sept folio R00524 notes that, on occasions, it might be desirable to install recording equipment at customer’s premises and states:-

“All technical reports that relate to customer’s services are to be headed ‘Legal Professional Privilege’, addressed to the Corporate Solicitor and forwarded through the dispute manager.” (GS-CAV Exhibit 89 to 154(b) - See GS-CAV 107)

28th September, 1993:  This Telstra internal email FOI folio A03254, from Don Pinel to Jim Holmes, with the subject Letter to Schorer, states:-

“One point not covered that you may like to consider is the question of ‘duress’. This has been raised in a number of places and requires rebuttal.”

“Perhaps I am getting too legalistic and defensive but we can’t afford to let anything get away. However, our best option is still to force these cases down a legal, structured path.” (GS-CAV Exhibit 89 to 154(b) - See GS-CAV 108)

1st October, 1993:  This document from Denise McBurnie to Telstra’s Don Pinel, confirms that Freehill’s were also writing to Mr Alan Smith, on behalf of Telstra. Ms McBurnie states:-

“I enclose a copy of the letter sent to Mr Alan Smith at 1.16 pm today.  I also confirm that I telephoned Mr Smith on phone number 055 267 267 and spoke to Mr Smith who confirmed that he had received the facsimile.” (GS-CAV Exhibit 89 to 154(b) - See GS-CAV 109)

5th October, 1993:  The draft of the COT Fast Track Settlement Proposal (FTSP) from AUSTEL’s Robin Davey states, at point 40:-

“Finally, if the attached letter (Attachment ‘D’) dated 7 July 1993 from Freehill, Hollingdale & Page to one of the COT Cases’ solicitors is indicative of the way that Freehill, Hollingdale & Page have approached the COT Cases in the past, I would be more than a little concerned if they were to have a continuing role.” (GS-CAV Exhibit 89 to 154(b) - See GS-CAV 110)

11th October, 1993:  Telstra internal email H36291 confirms Telstra’s knowledge of the 1800 network billing problems Peter Zeagers to Nigel Beaman:-

“I am receiving a disturbing number of reports of instances where the 1800 prefix ‘does not work’ in the network.” (AS-CAV Exhibit 92 to 127 - See AS-CAV 122-D)

14th October, 1993:  This internal Telstra email FOI folio R03331, is discussing how to minimise the problems experienced by the COT claimants. It states:-

“We need to focus Austel’s attention as much as possible on the current rather than the past level of service delivered to Cot Cases. …”

“My view is that Telecom’s response to this issue should reflect the advice from Denise McBurnie, Freehill, Hollingdale & Page, Solicitors.” (GS-CAV Exhibit 89 to 154(b) - See GS-CAV 111)

19th October, 1993:  This document from Denise McBurnie to Don Pinel and titled Legal Professional Privilege/Commercial In Confidence. includes the following:-

“Duesbury & FHP continuing of evaluating [redacted by Telstra] claim – final report to Telecom will be privileged and will not be made available to [redacted by Telstra]”

“Telecom preparing report for FHP analysing data available on [redacted by Telstra] services (ie. CCAS, Leopard, CABS and file notes) – this report will be privileged and will not be made available to (blank).” (GS-CAV Exhibit 89 to 154(b) - See GS-CAV 112)

It is clear from the above letters of 14th and 19th October, 1993 that Telstra had no intention of listening to Robin Davey’s concerns about Freehills having a continuing role in the COT case issues.

25th October, 1993:  This internal Telstra email, FOI folio A06541, headed Recording of Customers Calls, states:-

“I understand that the Telecom has authority under the act to monitor (listen to and/or record) customer telephone conversations as part of the fault management process.”

During Graham Schorer’s Fast Track Arbitration Procedure, Telstra advised Dr Hughes, the arbitrator, on 11th November, 1994 that they would address the interception issues raised by Mr Schorer.  Telstra’s arbitration defence confirms they didn’t address these issues at all. (GS-CAV Exhibit 89 to 154(b) - See GS-CAV 113)

29th October, 1993:  Internal Telstra email, folio A05592, states:-

“I can confirm your understanding that Telecom may listen and record telecommunications for carrier operational purposes which includes installation, the operation and maintenance of the network and for tracing of, for example, malicious calls. Otherwise it is illegal to record a telephone conversation without the knowledge of the parties to that conversation.” (GS-CAV Exhibit 89 to 154(b) - See GS-CAV 114)

At this time, Telstra internal FOI document K01489, confirms that while Telstra were testing Alan’s Mitsubishi fax machine (using the office of Golden Messenger as the testing base):-

“some alarming patterns of behaviour were noted”,

and,

“Even on calls that were not tampered with the fax machine displayed signs of locking up and behaving in a manner not in accordance with the relevant CCITT Group 3 fax rules. … Even if the page was sent upside down the time and date and company name should have still appeared on the top of the page, it wasn’t [sic].” (AS-CAV Exhibit 1 to 47 - See AS – CAV 44)

Telstra FOI documents K03750, K03751 and K03752 attached as (AS-CAV Exhibit 1 to 47 - See AS – CAV 44) confirm this testing was generated from a Xerox telecopier installed in Graham’s office.  These three documents include technical information showing the interoffice lock-up problem between their two offices.

The 1992 to 1995 fax interception issues are concerning as, on 31st July 2001, Alan received a number of startling FOI documents from ACMA.  One of these eight page documents was originally faxed to the arbitrator’s office fax line 03 6148730 at 05:56 on 15 February 1995.  The information contained in this combined document shows that during the period in which Telstra and AUSTEL investigated the briefcase saga, Telstra’s local Portland technician Gordon Stokes, monitored Alan’s fax line to see who he was faxing information to after the briefcase was inadvertently left at Alan’s premises.  FOI document K03273 says:-

“Micky, This is a note from Gordon Stokes, if you want me to type up some info please advise ASAP. The information regarding the telephone numbers called by this customer following this incident are available from Network Investigation and my information was verbal from Gordon Stokes.”

When collated with Mr Stokes’ other diary notes in the briefcase, this leaves very little doubt: the faxing side of my business was not private.

FAST-TRACK SETTLEMENT PROPOSAL (FTSP)

The COT four, Ann Garms, Maureen Gillan, Graham Schorer and Alan Smith, provided AUSTEL with proof that Telstra continued to deny their businesses still suffered from phone faults, or at least, Telstra denied the extent of these faults and their incorrect charging.  Alan also provided AUSTEL with proof of the unethical way Telstra conducted his previous settlement on 11th December, 1992.  Finally, AUSTEL began to look for an appropriate process to finalise all these outstanding matters and so, Ann, Maureen, Graham and Alan began negotiations for the drawing up of the FTSP.

Because of the proof provided to AUSTEL, confirming problems continued after the settlements and court actions, AUSTEL looked towards the reporting of Coopers & Lybrand, who were now auditing the way Telstra previously dealt with legitimate COT complaints.  It was during this time that Robin Davey made a statement to the four COT cases stating that before an assessor can bring down a finding on COT matters, end to end testing of services at premises will have to be implemented to ensure the matters are fixed. The COTS later learnt this process was to be Service Verification Tests (SVT).  Robin Davey assured Graham Schorer and Alan Smith that Telstra had to provide conclusive evidence to the assessor, before the assessor could bring down any technical and/or compensatory findings.

1st November, 1993:  Telstra internal email, H36293, from Christopher Peck was forwarded to Nigel Beaman. It states:-

“All Admin groups are being inundated with complaints from customers who have advertised their numbers as 1800 but their customers are simply unable to get through to them.  I have also spoken to our fault staff out at Waverley who are also being inundated with the same complaints.” (AS-CAV Exhibit 1 to 47 - See AS – CAV 45A)

5th November, 1993:  Telstra internal memo, H36178, from Telstra’s Greg Newbold, Group Communications Manager, alerts Harvey Parker, Group Managing Director of Commercial and Consumer, about the short-duration, post-dialling delays affecting Telstra’s 1800 customers.  Mr Newbold states:-

“Bruce is concerned that the matter requires fixing at a national network level not just on a fault by fault basis.  He also raises the question whether we should be actively promoting 1800 in the current circumstances.” (AS-CAV Exhibit 1 to 47 - See AS – CAV 45B)

Please note: Alan was never informed that Telstra was aware that Alan’s 1800 complaints were valid nor advised by Telstra to withdraw his 1800 advertising until they fixed the problem.

CONFLICT OF INTEREST – PART 1

10 November, 1993:  Warwick Smith, TIO discloses confidential information.  Telstra FOI document A05993, is marked CONFIDENTIAL Subject – Warwick Smith – COT cases.  In this Telstra email addressed to Telstra’s Corporate Secretary Jim Holmes, copied to Frank Blount Telstra’s CEO, author Chris Vonwilla, Telstra’s Corporate Affairs Officer states:- (AS-CAV Exhibit 48-A to 91 - See AS – CAV 48A)

“Warwick Smith contacted me in confidence to brief me on discussions he has had in the last two days with a senior member of the parliamentary National Party in relation to Senator Boswell’s call for a Senate Inquiry into COT Cases.”

“Advice from Warwick is:

Boswell has not yet taken the trouble to raise the COT Cases issue in the Party Room.
Any proposal to call for a Senate Inquiry would require, firstly, endorsement in the Party Room and, secondly, approval by Shadow Cabinet.
This would appear highly unlikely at this stage, given Boswell’s apparent lack of interest in raising it within the Party Room.
The intermediary will raise the matter with Boswell, and suggest that Boswell discuss the issue with Warwick Smith. Warwick sees no merit in a Senate Inquiry.”

“He has undertaken to keep me informed, and confirmed his view that Senator Alston will not be pressing a Senate Inquiry, at least until after the AUSTEL report is tabled.”

“Could you please protect this information as confidential.” (GS-CAV Exhibit 89 to 154(b) - See GS-CAV 116)

Exhibit (AS-CAV Exhibit 48-A to 91 - See AS-CAV 48-B) confirms Chris Vonwiller and Jim Holmes were both members of the TIO Board, when this email went into circulation.  Exhibit (AS-CAV Exhibit 48-A to 91 - See AS-CAV 48-C) confirms Ted Benjamin was also reporting confidential information he was privy to, as a TIO council member, back to Senior Telstra Executives.

11th November, 1993:  This letter from Freehills’ Denise McBurnie to Telstra’s Don Pinel, under the heading, Draft Austel Submission Legal Professional Privilege, discusses a draft of the AUSTEL COT report. Ms McBurnie states:-

“In light of this approach, we emphasise that, while we have endeavoured to minimise any ‘dangerous’ admissions of liability which may have appeared in the draft Submission…”

The letter then discusses the many issues related to Telstra’s possible breaches of the Trade Practices Act 1974, in connection with COT matters. (GS-CAV Exhibit 89 to 154(b) - See GS-CAV 117)

12th November, 1993:  This letter from Russell Berry, Freehills, confirms Telstra’s secondment of Freehills’ Simon Chalmers.  As shown below, Mr Chalmers was involved in the release of FOI documents to Graham Schorer and Alan Smith during their respective arbitrations. (GS-CAV Exhibit 89 to 154(b) - See GS-CAV 118)

Remember, the TIO, Warwick Smith, and his legal counsel, Peter Bartlett, were provided with the draft Fast Track Settlement Proposal (FTSP), which outlined AUSTEL’s concern if Freehills had a continuing role in the COT matters.  The fact that Telstra used Freehills in their arbitration defence of Graham and Alan Smith’s arbitration, confirms Warwick Smith and Peter Bartlett did not adhere to those concerns.

GS 119 shows the type of FOI documents (not legal documents) that were withheld from Graham Schorer under Legal Professional privilege – using the advice given to Telstra on 10th September, 1993 by Denise McBurnie (Freehills).

17th November, 1993:  This internal Telstra email to Jim Holmes and Ted Benjamin, folio A05254, shows that yet another so-called independent report was about to be sanitised, when the writer of this email states:-

“Am now raising with Sekuless the merits/demerits of holding back the BCI [Bell Canada International] info for a ‘cleansing’ program immediately after the mess of Coopers.” (GS-CAV Exhibit 89 to 154(b) - See GS-CAV 120)

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