Chapter 4 Deception in the public service
For an arbitrator to have a conflict of interest, taking or allowing the defence to use threats that were later carried out which then allowed fraud, and forgery, to creep into the arbitration process is more than just a breach of trust, it was unconsionable.
This letter, dated 20 January 1994, from Ms Philippa Smith, Commonwealth Ombudsman to Telstra’s corporate secretary Jim Holmes, notes:
“I received complaints from three of the ‘COT Cases,’ Mr Graham Schorer, Mr Alan Smith and Ms Ann Garms, concerning TELECOM’s handling of their applications under the Freedom of Information Act (FOI Act) of 24 November 1993 and 21 December 1993 respectively. …
“All three assert that they require the information to support their submissions to the imminent review in accordance with the Fast Track Settlement Proposal (FTSP) agreed between TELECOM and AUSTEL, and endorsed by the then relevant Minister.” (Home Page – Part One File No/2-A to 2-E)
On 25 March 1994, Ms Philippa Smith wrote to Telstra’s CEO Frank Blount, stating:
“It was unreasonable for Telecom to require the participants to make further assurances while Telecom was considering the Agreement and thereby denying the participants the opportunity to consider the rules that Telecom wished to have included in the Agreement.” (Home Page – Part One File No/2-B)
Again, on 6 May 1994, Ms Philippa Smith wrote to Telstra’s CEO, Frank Blount, stating:
“I should be grateful if you would now respond to the outstanding matters raised in my letter of 25 March 1994 ie
- Comment on my views that:
- it was unreasonable for Telecom to impose a condition for release of certain documents that the participants make further assurances that they will participate in the FTSP; and
- it was unreasonable for Telecom to require the participants to make the assurances while Telecom was considering the agreement related to the FTSP (the Agreement) and thereby denying the participants the opportunity to consider the rules that Telecom wished to have included in the Agreement.” (Home Page – Part One File No/2-C)
Regardless of the government and the relevant minister endorsing COT arbitrations, as confirmed by Ms Philippa Smith, in her 20 January 1994 letter, and regardless of both the TIO and the government being aware the arbitrator had no control over the arbitrations (see Arbitrator File No/71), the government only assisted five of the 21 COT cases to resolve their long outstanding claims. (See the An Injustice to the Remaining 16 page in the menu bar).
Ambit of the Victorian Commercial Arbitration Act 1984
While the ambit of the Victorian Commercial Arbitration Act 1984 issue appears on the Senate Page / File No/71, it is important to raise it here, too, in our Home Page Part One.
On 24 January 1994, this letter to Dr Hughes (arbitrator) from Frank Shelton, the TIO special counsel, provides further proof the first four arbitrations were to be conducted according to the “ambit of the Commercial Arbitration Act 1984”. Frank Shelton was also the president of the Institute of Arbitrators Australia when he advised the arbitrator:
“We discussed whether or not the Procedure should come within the ambit of the Victorian Commercial Arbitration Act 1984. We decided that it should.”
On page two, he adds:
“On balance, it was decided that it would be preferable to have the Procedure operating under the ambit of the Commercial Arbitration Act.
“You will note that I have amended the Procedure so that it is clear that you are conducting four separate arbitrations and will hand down four separate awards although you may combine some aspects of the four hearings.” (See Arbitrator File No/105)
The arbitrator failed to mention in my final award that my arbitration procedure was conducted outside the agreed ambit of the Commercial Arbitration Act 1984. He did not warn me before I signed the agreement that my arbitration would be conducted this way.
It was corrupt for the arbitrator and the TIO to allow our arbitrations to continue after discovering that they were being conducted outside the agreed and accepted ambit of the Victorian (Australia) Commercial Arbitration Act.
With iniquity, this decision has stood without investigation for 18 years despite the TIO confirming, to both a Senate estimates committee hearing and the communications minister’s office, on 26 September 1997, that the arbitrator had no control over the process because it was “conducted entirely outside the ambit of the arbitration procedures”. (See Arbitrator File No/71)
After conducting our arbitrations in such an unethical manner, the arbitrator wrote to the TIO on 12 May 1995 and declared the COT arbitration agreement not a credible document for the basis of my arbitration (see Open Letter File No 55-A). This letter condemning the agreement was also deliberately concealed from me during my designated appeal period. Neither the arbitrator nor the TIO (the administrator) ever gave me an amended document during my arbitration.
The confidentiality clauses in my arbitration agreement, which appear to have been used since 22 June 1995 to stop a transparent investigation into the conduct of my arbitration, became null and void as soon as the arbitrator conducted my arbitration entirely outside the agreed ambit of the Victorian Commercial Arbitration Act 1984.
On 17 February 1994, during this official arbitration meeting, Graham Schorer (COT spokesperson) asked Dr Hughes to assure us that the agreement the COT claimants were pressured to sign was not Telstra’s proposed arbitration rules. Telstra’s own transcripts of this meeting (see Arbitrator File No/103) confirm that both the arbitrator and the TIO’s special counsel stated, “They had not received this document and had not read it and that it was irrelevant.”
However, Arbitrator File No/104 confirms the arbitrator was provided with a document called “Telstra Corporation Limited – ‘Fast Track’ Proposed Rules of Arbitration” before 18 January 1994, one month before this meeting.
In fact, Arbitrator File No/105, dated 24 January 1994, confirms that both the arbitrator and a TIO’s special counsel representative read Telstra’s proposed rules. And they used that document as the basis for the final arbitration agreement: the version presented to the first four COTs for signing next month. This was the version that we were assured had been drafted totally independently. During the first official arbitration meeting, before the COTs had signed their arbitration agreements and even before he was officially appointed, the arbitrator was already misleading and deceiving the claimants, and all other interested parties.
This deception, regarding which version of the agreement we signed, was maintained throughout the various COT arbitrations. This agreement was NOT independently drafted by the special counsel but by Telstra – the defendants.
This letter, dated 23 February 1994, from Telstra’s arbitration liaison officer to the pending arbitrator notes:
Next Page ⟶“Telecom is of the view that Special Counsel and the Resource Unit should be accountable for any negligence on their part in relation to the arbitration process, given that these parties are acting in their capacity as experts. Therefore, this clause should not be amended so as to include an exclusion from liability for Special Counsel and the Resource Unit.” (See Arbitrator File No/3)
