Senate Schedule COT list -16

 

 

It is important to view Senate page 5163 SENATE official Hansard because it provides similar information concerning systemic criminal conduct within the Telstra Corporation while the COT arbitrations were proceeding and because it shows that the corruption was certainly real and not a figment of our imaginations. Had the COT cases exposed a non-government-owned corporation selling and installing known-deficient equipment into unsuspecting businesses owners’ premises, the COTs would have been applauded by government and the Establishment as good citizens and our businesses would have blossomed. However, as well as exposing this issue, which was criminal enough (under Section 52 of the Australian Trade Practices Act 1974), we also exposed further systemic corporate corruption, within the Australian-owned Telstra Corporation. Therefore, instead of being applauded, we have been lied about, threatened and degraded by the very Establishment we thought we were assisting by exposing how degraded the Telstra copper wire network really was.

Twenty-one Australian citizens (known as the COT cases) were denied documents, under the Freedom of Information Act, while in arbitration and mediation with Telstra; we had a legal and constitutional right to obtain these documents. As shown on absentjustice.com, all Cot cases were denied Freedom of Information Act (FOI) documents. A Senate estimates committee investigation ensued, commencing in early October 1997 and finishing in March 1999. We 21 cases agreed it would be quicker to appoint five of the 21 cases as litmus-test cases and if those five proved Telstra unethically withheld requested documents (most were requested under FOI), then the remaining 16 COT cases would also get their documents via the Senate committee. The five litmus cases received compensation, but after numerous reports, some now concealed under government privilege, the chair of the Senate committee put out a media release on 23 March 1999. The Australian Financial Review reported on the conclusion of the Senate estimates committee hearing into why Telstra withheld so many documents from the COT cases:

Forced members to proceed with arbitration without the necessary information 

On 23 March 1999, the Australian Financial Review reported on the conclusion of the Senate estimates committee hearing into why Telstra withheld so many documents from the COT cases:

“A Senate working party delivered a damning report into the COT dispute. The report focussed on the difficulties encountered by COT members as they sought to obtain documents from Telstra. The report found Telstra had deliberately withheld important network documents and/or provided them too late and forced members to proceed with arbitration without the necessary information,” Senator Eggleston said. “They [Telstra] have defied the Senate working party. Their conduct is to act as a law unto themselves.”

Litmus Tests

What was perpetrated against 16 citizens of Australia, by the coalition LNP government in 1997 to 1999, after what was exposed in these Senate Hansard records, dated 24 and 25, is incredible. This discrimination against 16 Australians must to go down in the annals of Australian history as the worse possible discrimination that could occur; the LNP government knew that not only should the five litmus-test cases receive their requested documents but so should the other 16. These Hansards, only a day apart, confirm the Telstra Corporation acted illegally against all 21 citizens, yet the government only sanctioned Telstra to pay compensation to the litmus five, and not the remaining 16. Those five also received 150,000 or more previously withheld discovery documents, which allowed them to appeal their arbitration process. But the remaining 16, who didn’t receive their withheld documents, were unable to appeal.

While this 150,000 document issue and the five litmus test cases receiving a commercial settlement [punitive damages], as well as the following statement made by a Liberal National Part (LNP) senator, are still to be addressed in the  I thought it most appropriate I again highlight that only the five 'litmus' COT Cases received their previously withheld arbitration FOI documents and millions of dollars in punitive damages because of the importance of what took place when the remaining sixteen COT Cases did not received their promised arbitration and mediation documents ot the punitive damages for their suffering.

An LNP senator threatened I would be held in contempt of the Senate if I publicly exposed in-camera Senate Hansards, dated 6 and 9 July 1998, showing even worse discrimination. In fact, after one National Party senator verbally attacked a very senior Telstra arbitration officer, stating, “You are really a disgrace, the whole lot of you,” regarding the Telstra officers involved in the COT arbitrations, he then apologised to the chair of the Senate committee, stating:

“Madam, I withdraw that, but I do say this: this has got a unity ticket going right through this parliament. This has united every person in this parliament – something that no-one else has ever had the ability to do – and Telstra has done it magnificently. They have got the Labor Party, they have got the National Party, they have got the Liberal Party, they have got the Democrats and they have got the Greens – all united in a singular distrust of Telstra. You have achieved a miracle.”

A Labor Party senator also made it clear to the same Telstra arbitration officer that if Telstra was to award compensation to those now being investigate (the five litmus COT case) then this act “would be an injustice to the 16 or whatever you have settled”.

Why is the current 2023 Labor government so reluctant to conduct an investigation to why only five of the twenty-one COT Cases were provided the justice they deserved.

How can the government threaten me, as it did in its correspondence of August 2001 and December 2004, i.e., to have me charged with contempt of the Senate if I disclose these in camera Hansards? The government knows that, had I made this documentation public, I could have used it to win my appeal against Telstra for gross misconduct. How can the Senate hide this conduct and therefore destroy lives? How is this democratic?

PLEASE NOTE: I have added the following letter from John Pinnock [referred to above] to Pauline Moore, because if it is ever read by a truly honest independent government official that official will know my story should be investigated in the Public Interest

24th October 1997:  John Pinnock writes to Ms Pauline Moore, Secretary Senate Environment, Recreation, Communications and the Arts Legislation Committee, noting:

“I refer to previous correspondence and discussions with the Committee’s Research Officer, Ms Ducker, concerning a series of questions put on notice by Senator Boswell and arising out of the Committee’s proceedings of 26 September 1997…” (AS-CAV Exhibit 234 to 281 - See GS-CAV 318-B)

“The COT Arbitration Procedures contain provisions relating to the confidentiality of the proceedings, which bind the parties. Those provisions also bind the Arbitrators, the Resource Unit, the Special Council and the TIO in my role as Administrator.

Please note: only Telstra and the COT claimants signed the Confidentiality Agreement.

Mr Pinnock also notes:-

“Accordingly, I ask that the answers given below to the questions on notice be treated as confidential by the Committee and not published:

In November 1995 I received correspondence from a COT member expressing concern about the Technical Resource Unit. The COT member:

expressed concern that the purchase by Pacific Star of Lane Telecommunications compromised the independence of the Technical Resource Unit;
stated that there were inaccuracies and biases evident in the Lane Telecommunications/DMR Technical Evaluation Report;
requested the Telecommunications Industry Ombudsman to dismiss the Resource Unit.

On 6 November 1995 I was advised by Steve Black of Telstra that Lane Telecommunications and Pacific Star had already worked together on several Pacific Star contracts in Queensland and Western Australia and for the Federal Government.” 

and at point 6, 8, 9 and 10

6. Apart from the evidence I gave to the Committee on 26 September 1997 concerning the purchase of Lane Telecommunications by Ericsson Australia. I have recently been advised by one of the Arbitrators (Dr Hughes) that he will be transferring his legal practice to Blake Dawson, Waldron, Solicitors. I am aware that that form is currently acting for Telstra in relation to a number of matters. Arrangements are being made to discuss with Blake. Dawson, Waldron any possible conflicts of interest. …

8. It is my recollection that I have never stated in person or by telephone to individual COT members and/or their representatives that the arbitration has failed.

9. Yes, from time to time I received complaints from foundation COT members, concerning a range of matters, including alleged non-compliance with the rules of the Fast Track Arbitration Procedure by Telstra and/or the Arbitrator and/or the Technical and Accounting Resource Unit. Identifying individual instances of complaints and detailing the response taken will require a huge amount of administrative resources in searching TIO files

10. Yes, I have refused to provide COT members with a copy of Telstra’s Preferred Rules of Arbitration. A copy of this document was not provided because it was of historical interest only, and the COT members did not advance any argument as to why it was relevant to their arbitration. A copy is provided for the information of the committee.

Mr Pinnock’s letters would take considerable time:  in this context, it is more useful to address specific statements, such as those pertaining to the non-compliance with the rules of the Fast Track Arbitration Procedure by Telstra and the arbitration units.  The situation regarding the financial unit is addressed in Alan Smith’s CAV Chronology of Events and elsewhere in this document.

Point 10 in Mr Pinnock’s letter is, however, most important and is addressed in the following list.

GS-CAV Exhibit 89 to 154(b) - See GS-CAV 153 is a letter dated 24th January 1994 from Mr Shelton of Minter Ellison to Dr Hughes, the arbitrator, noting:-

“Following our meeting on Thursday last, I now enclose revised Procedure for your consideration.

GS-CAV Exhibit 155 to 215 - See GS-CAV 171 is a letter dated 25th February 1994 from Mr Shelton to Dr Hughes, detailing amendments made to the Fast Track Arbitration Procedure by Mr Shelton.

GS-CAV Exhibit 155 to 215 - See GS-CAV 172 is an internal Telstra email dated 2nd March 1994 noting:

“My course therefore is to force Gordon Hughes to rule on our preferred rules of arbitration.”

GS-CAV Exhibit 155 to 215 - See GS-CAV 175, dated 22nd March 1994 is the transcript of a secret arbitration meeting attended by Telstra and their lawyers (Simon Chalmers and David Krasnostein from Telstra’s Legal Directorate), Dr Hughes (Arbitrator), Peter Bartlett (the TIO’s Special Counsel) and Warwick Smith (TIO).  The COT claimants were not represented and were not even aware of this meeting until late in 1998.  At point 2 in this transcript, Telstra notes:

“Mr Smith [the TIO] stated he would not endorse the rules as fair unless clause 10.2.2 repeated clause 2(f) of the Fast Track Settlement Proposal…

GS-CAV Exhibit 258 to 323 - See GS-CAV 319 is a copy of Telstra’s Preferred Rules of Arbitration, which was attached to Mr Pinnock’s letter to Ms Pauline Moore (see GS-CAV Exhibit 258 to 323 - GS-CAV 318-B).  With the exception of some minor cosmetic changes, this document is exactly the same as that allegedly drafted by Mr Shelton, proving Telstra’s threat to force Dr Hughes to use their preferred rules of arbitration, was no idle threat.

GS-CAV Exhibit 258 to 323 - See GS-CAV 320 is page two from the award Dr Hughes handed down on 11th May, 1995 in Alan Smith’s case.  In this document, at point (h), the arbitrator notes:-

“at my request, an arbitration agreement was prepared by Mr (now Judge) Frank Shelton of Messrs Minter Ellison and settled by Messrs Minter Ellison in consultation with me, Telecom and the four COT case members concerned;

It may be argued that Frank Shelton’s amended agreement was prepared collectively by Mr Shelton, Dr Hughes and the COT claimants and only included some clauses from Telstra’s preferred rules.  However, it is clear that almost all of the amended FTSP agreement was based on Telstra’s preferred rules.  Page 9, point 8(a)(bb)(ii), was taken directly from the AUSTEL-facilitated Fast Track Settlement Proposal clause 2(f), i.e., “will make a finding on reasonable grounds as to the causal link between each of the Claimants claims and the alleged faults or problems”, which was also in Telstra’s preferred rules. (GS-CAV Exhibit 258 to 323 - See GS-CAV 319)

Did Warwick Smith and John Pinnock refuse to provide the COT claimants with a copy of Telstra’s preferred Rules of Arbitration because it would reveal Frank Shelton’s agreement was almost (except for some cosmetic changes) the same agreement as Telstra’s Preferred Rules (and that someone altered clause 10.2.2)?  Therefore, Warwick Smith, the TIO, should have kept his promise to withdraw his endorsement of the rules. (GS-CAV Exhibit 155 to 215 - See GS 175)

OR perhaps it was because Warwick Smith and John Pinnock were concerned the COT claimants and their advisors might compare Telstra’s FTSP rules, Minter Ellison’s Arbitration Agreement and the final FTAP Agreement Graham Schorer and Alan Smith (me) signed and discover yet another alteration was made to the version provided to Dr Hughes so that Minter Ellison (as Special Counsel) and the two resource units (FHCA and DMR) were exonerated from any liability resulting from negligence or wrongdoing?

The original FTSP was originally based on the AUSTEL-facilitated commercial review (which was never intended to be a legalistic arbitration), and the TIO, Telstra, the TIO’s Special Counsel and the Assessor, Dr Hughes, were all involved to some degree in turning the commercial review into a highly legalistic and unworkable arbitration process.  After all this, Dr Hughes wrote to Warwick Smith on 12th May 1995, warning the TIO that the whole process was not credible, and the TIO told the Senate on 26th September 1997 that the arbitrator had NO control over the process.  This secret alteration to the Arbitration Agreement, either by Warwick Smith and Peter Bartlett alone or with Dr Hughes’ assistance, took away the only life raft the COT claimants had – the right to sue the Special Counsel, FHCA or DMR (Australia) for misconduct.

Graham’s solicitor, William Hunt, showed concern in his file notes (see 8th December 1997 below) because Mr Pinnock wouldn’t provide him with a copy of Telstra’s preferred rules, noting:

“Pinnock will not make available the first draft of the fast track arbitration procedure sent in early 1994 by the then TIO to Bartlett of Minter Ellison. Telstra has refused to make the first draft available under FOI. Schorer says Pinnock has a copy and made it available to the Senate on a confidential basis.

“Schorer is convinced that it will show a complete programme altering the intention of the fast track settlement proposal and commercial assessment which was the subject on the November 1993 arrangement

Please note: The Senator who finally gave Graham a copy of Telstra’s Preferred Rules is not named here to protect his/her identity.

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