Chapter Two

I ask that the reader takes into consideration the following very serious matter of AUSTEL secretly allowing Telstra to address some of my unaddressed arbitration claim documents without the arbitrator or I being involved.

That AUSTEL allowed Telstra to use the witness statement of Ross Anderson in order to address the ongoing RVA May 1994 issues is astounding, to say the least. Telstra and I signed the arbitration agreement, on 21 April 1994: there was NO amendment signed by me allowing the government to enter an assessment process with Telstra to address the more adverse findings without the arbitrator being present or me having any input in that process. There was no side agreement in the arbitration agreement Telstra and I signed that allowed any of my arbitration claim documents to be addressed by anyone other than the arbitrator. For AUSTEL to have ventured into such a process with only Telstra – when it accepted Telstra’s written response clearly addressing my previous May 1994 arbitration claims concerning RVA billing – on 16 October 1995, five months after my arbitration process was concluded, was a deplorable act. Telstra addressed some of my RVA May 1995 claim documents in secret with AUSTEL.

AUSTEL asked if it could view my arbitration claim documents that were not addressed by the arbitrator. I allowed this so the government could value what should have been investigated under the arbitration agreement. On 19 December 1995, AUSTEL’s Daren Kearney took five large spiral volumes of my evidence for the government to assess, telling me AUSTEL would advise me of their findings. I have never been advised of this 16 October 1995 issue nor provided with a written response to what AUSTEL thought of the evidence that was not investigated during my arbitration.

I have, however, in my reporting on commented that Mr Kearney’s mini three-page report, which I only received under FOI in 2002, agreed my unaddressed 008/1800 RVA billing claims were valid.

The statements made by the hackers to Graham Schorer – that both Telstra and the government are concealing relevant documents from the COT cases – are possibly some of the most important statements made during our four arbitrations. The damage done by withholding AUSTEL’s Adverse Findings from the arbitration process can, again, be seen in the following statements made by Sue Hodgkinson, the TIO-appointed resource unit’s financial officer.

Sue Hodgkinson, the financial adviser to Warwick Smith (the then administrator of my arbitration), wrote Warwick Smith on 30 March 1995, six weeks before the conclusion of my arbitration and stated under the heading EXTRACTS OF TELECOM'S DEFENCE - Principal Submission (A) Opening Submission (File 103 - AS-CAV Exhibit 92 to 127) that

Sue Hodgkinson, the financial adviser to Warwick Smith (the then administrator of my arbitration), wrote Warwick Smith on 30 March 1995, six weeks before the conclusion of my arbitration and stated under the heading EXTRACTS OF TELECOM'S DEFENCE - Principal Submission (A) Opening Submission (File 103 - AS-CAV Exhibit 92 to 127) that

These eight dot point examples made by Sue Hodkinson's (when addressing Telstra's arbitration defence of my claims) do not coincide with AUSTEL’s Adverse Findings, at points 2, to  212.

File 103 - AS-CAV Exhibit 92 to 127 is conclusive proof that had the government not concealed [withheld] their factual findings concerning my ongoing telephone problems, Telstra's arbitration defence would never have been able to advise the arbitration process of something they knew the government knew to be incorrect. In other words, someone within AUSTEL disclosed to Telstra that the government was on their side and would conceal AS-CAV Exhibit 92 to 127 from the arbitration process.

• Most of the allegations are unsubstantiated and many are not verified by statutory declaration.  Smith has relied upon records kept in his diaries as his primary record of complaints
• Smith has relied upon records kept in his diaries as his primary record of complaints;
• The magnitude of fault complaints reported is unsubstantiated and appears overstated
• Of the few faults which occurred, most were trivial or short lived due to prompt rectification by Telecom.
• Those faults that did occur, many were due to misuse of telephone and associated equipment by the claimant or customers of CBHC [Cape Bridgewater Holiday Camp].
• Of the 58 customers (66 by August 1993) conneted 
• to the Cape Bridgewater telephone exchange, only Smith has had a significant level of fault complains. It is vertually impossible that faults 
• at this exchange can effect the claimant only.

File 103 - AS-CAV Exhibit 92 to 127 is conclusive proof that had the government not concealed [withheld] their factual findings concerning my ongoing telephone problems, Telstra's arbitration defence would never have been able to advise the arbitration process of something they knew the government knew to be incorrect. In other words, someone within AUSTEL disclosed to Telstra that the government was on their side and would conceal AS-CAV Exhibit 92 to 127 from the arbitration process.

Ms Hodgkinson is correct: I did not supply all of the required technical information to support my arbitration claim. This, of course, is mainly due to Telstra’s unethical conduct of withholding that information from me during my arbitration, even though I made requests under FOI between February 1994 and April 1995.

Firstly, because I did not receive the promised documents to support my arbitration claim, I could not substantiate my claims. Secondly, how could I verify my claim in a statutory declaration under oath if I did not have the evidence to swear that the evidence is correct? “Smith has relied upon records kept in his diaries as his primary record of complaints,” is correct.

The Commonwealth Ombudsman’s director of investigations clarified, in many letters to Telstra, that Telstra was defective in its FOI responses. This resulted in Telstra refunding me approximately 70 per cent of the unnecessary costs involved in trying to obtain my FOI documents during my arbitration. Those costs had to be proven by me and assessed by loss assessors, GAB Robins, appointed by the Commonwealth Ombudsman. This was not a compensation payment: I had to support each receipt of cost involved in trying to access that information through lawyers and professional advisors.

And thirdly, FHCA could not have noted “The magnitude of fault complaints reported is unsubstantiated and appears overstated,” had the government communications regulator (AUSTEL) also provided the arbitrator and me with a copy of its AUSTEL’s Adverse Findings (see above), as it did Telstra. The arbitrator’s findings would then have been completely different, in regards to my claims.

How could anyone, from the arbitrator to Sue Hodgkinson and Telstra, have doubted the magnitude of my fault complaints or stated they were unsubstantiated when the government itself, using documents officially accessed from Telstra, showed my business suffered significantly due to Telstra’s deficient service? AUSTEL stated:

“Cape Bridgewater Holiday Camp has a history of service difficulties dating back to 1988. Although most of the documentation dates from 1991 it is apparent that the camp has had ongoing service difficulties for the past six years which has impacted on its business operations causing losses and erosion of customer base.” (See point 209 in AUSTEL’s Adverse Findings)

If this evidence had been available to the arbitrator, he would have had no option other than to pay me more than triple the amount in his award. The government communications regulator had already found in my favour before I entered the arbitration process.

As further testament to how badly Telstra’s defective FOI process affected my arbitration, 18-months after the arbitration was deemed finished the Commonwealth Ombudsman’s director of investigations clarified, in many letters to Telstra, that Telstra was defective in its FOI responses. This resulted in Telstra refunding me approximately 70 per cent of the unnecessary costs involved in trying to obtain my FOI documents during my arbitration. Those costs had to be proven by me and assessed by loss assessors, GAB Robins, appointed by the Commonwealth Ombudsman. This was not a compensation payment: I had to support each receipt of the cost involved in trying to access that information through lawyers and professional advisors.

If Julian Assange was one of the hackers (and it appears that he was), then making such statements and accusations against governments, when those governments are wrong, appears to be what drives Julian Assange to seek justice when it’s been denied. In the case of AUSTEL concealing their AUSTEL’s Adverse Findings from both the arbitrator and me during a government-endorsed highly legalistic arbitration process, yet provided it to the defendant (where it surely assisted them in their defence of our claims) was wrong and grossly discriminative in the most appalling way.

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