Legal Bullying In Arbitration

AUSTEL COT Case’s public report

Point 5.46 on page 95. ‘

As part of its direction, AUSTEL sought to obtain detailed information on each of the exchanges involved in terms of performance standards, actual performance, maintenance requirements, and achievements. Telecom initially responded with advice in terms of a few generalisations. A cooperative approach may have been expected to deliver particular requests that were necessary to obtain data. Indeed, throughout this inquiry, it has been apparent that Telecom has interpreted AUSTEL’s request for information in the narrowest possible terms. The net effect was to minimise the amount of relevant data it put before AUSTEL and lengthen the process necessary to extract it.

On 21st November 2007, I received from the Australian Communications and Media Authority (ACMA), under FOI, a copy of AUSTEL’s original draft findings dated 2nd / 3rd March 1994 regarding the telephone problems experienced by the Cape Bridgewater Holiday Camp from 1988 to 1994. Copied below are some of the page numbers and points in the report. I am discussing these issues here in Chapter 4 to show the difficulties that AUSTEL, as the Government regulator, had in obtaining documents from Telstra (at the time, a fully Government-owned Corporation). Given these difficulties experienced by the government, it should have been enough to halt the arbitration process until all the evidence needed by all the parties was made available to allow those parties to prove or disprove each COT Case claim.

If the government was unable to access the documents it needed to prove the various COT Cases claims and still allowed the claimants to spend hundreds of thousands of dollars trying to access documents from Telstra that even the government regulator could not access from Telstra breached their statutory obligation to the COT Cases for allowing Warwick Smith (the administrator to the arbitrations) and Dr Gordon Hughes (the arbitrator) into forcing the COT Cases into arbitration without the necessary documents to prove they still had ongoing telephone problems. 

Without this supply of documents to the COT claimants during their respective arbitrations, it is one of the reasons we, COT Cases, could not conclusively prove to the arbitrator my telephone faults were still ongoing. The following list identifies some areas (in the AUSTEL draft report) where AUSTEL had problems with access to Telstra records on the service provided to me:

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

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

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

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

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

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

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

Spoliation of evidence – Wikipedia

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

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

 

Minimizing Telstra's liability 

It is important to note before AUSTEL did their investigation into my complaints, I provided them with a comprehensive log of my phone complaints, which my claim advisors Plummer and Pullinger later also to Dr Gordon Hughes (the arbitrator hearing my case Alan Smith v s Telstra) on 15 June 1994 as an interim to my arbitration submission (see File - 7 to 9-A - AS-CAV Exhibit 1 to 47 and File 108 - AS-CAV Exhibit 92 to 127).

However, the arbitrator concealed this 'comprehensive chronology of my complaints' from his technical arbitration resource unit. The 30 April 1995 report Chapter 1 - The Conspiracy states, "A comprehensive log of Mr Smith's complaints does not appear to exist." At the conclusion of my arbitration on 11 May 1995, it cost me over $52,000 in fees paid directly to Plummer & Pullinger, my arbitration claim advisors. Both advisors were ex-senior Detective Sargants in the Queensland police force. One of the two partners later became a Senator in the John Howard government on behalf of the Queensland National Party. Fifty thousand dollars ($52,000) was a lot of money for me to pay Plummer & Pullinger, who, on my behalf, appointed a technical consultant, George Close and Associates, to oversee the technical issues they had been prepared as an attachment to this submission. That extra fee of $25,000.00 plus travelling expenses brought the overall cost of my submission to $80.00.00.

This amount of eighty thousand dollars did not include my legal fees leading up to the arbitration process, which commenced in November 1993, my appeal fees or my forensic accountant costs of DMR Corporate, which was $55.000. My overall costs were more than $300,000.00, and the arbitrator's advisors warned him there was no: "comprehensive log of Mr Smith's complaints does not appear to exist."

Suppose Plummer & Pullinger had forgotten to courier the most crucial document of my entire arbitration process, i.e., a comprehensive log of Mr Smith's complaints. Why didn't the arbitrator write to me asking for a copy? Why did the arbitrator allow his technical consultants, DMR & Labe, to investigate my fault complaints if there was no log of those complaints? How could they start such an investigation if no such log existed? 

At the request of the government communications regulator AUSTEL (now ACMA) towards the end of 1993, I provided them with a condensed version of my comprehensive log of complaints, which did not include ongoing phone problems experienced after 1993. AUSTEL used some of those events to officially request from Telstra all data they had on file of how they responded to that chronology of events.  

AUSTEL’s Adverse Findings, dated March 1994, confirms that between Points 2 to 212, the government public servants who investigated my ongoing telephone problems found my claims against Telstra validated. One does not have to be a genius to understand that had the arbitrator been provided AUSTEL’s Adverse Findings, his award on my financial business losses would have been substantially higher than he awarded on a claim that did not have a comprehensive log over the six-year period which AUSTEL used in which to derive at their findings as AUSTEL’s Adverse Findings shows.   

Government records (see Absentjustice-Introduction File 495 to 551) show AUSTEL's adverse findings were provided to Telstra (the defendants) one month before Telstra and I signed our arbitration agreement. I did not get a copy of these same findings until 23 November 2007, 12 years after the conclusion of my arbitration, which was outside the statute of limitations for me to use those government findings in which to appeal the arbitrator award.

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

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

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

Adequacy of Response 

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

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

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

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

Telecom's Approach to reaching Settlement 

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

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

Point 32 – "Telecom's communications with Mr Smith in the months prior to settlement uniformaly argued that the Cape