Withholding Evidence
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The following segments, titled Criminal Conduct, show that the COT Cases were never meant to win our arbitration claims against Telstra.
Criminal Conduct
“COT Case Strategy”
Starting on page 5163, this link > SENATE official Hansard – Parliament of Australia, shows Telstra employees rorted millions upon millions of dollars from Telstra shareholders, i.e., the government and Australian citizens, who then owned Telstra. The pressure Senators Alston and Boswell applied for a Senate investigation into the Casualties of Telstra (COT cases) phone fiascos was one of the reasons Telstra agreed to settle the COT cases’ issues in a proposed Fast Track Settlement Proposal signed by Telstra and the four claimants in the third week of November 1993. It seemed Telstra could not afford a further investigation into its operation: NSW was not the only state where this rorting, and others, was taking place. Many people made threats against the COT cases because our persistence to gain fully functional phone systems was about to expose other unethical behaviour at Telstra, including at the management level. The fact that the Telstra CEO and board knew millions upon millions of dollars (again, see 5163 of SENATE official Hansard) were being unlawfully siphoned from the government coffers is unbelievable. Figures running into the billions have also been quoted.
Furthermore, although it is astonishing, page 5163 of > SENATE Official Hansard – Parliament of Australia shows that, even before COT members and several senators applied pressure, both Telstra’s CEO and all the members of the Telstra board had already known, for some time, about the millions of dollars that Telstra was unlawfully withdrawing from government coffers. Perhaps even more unbelievable is that the COT cases received no recognition, from either the government or Telstra, for our stand for honesty and truth; instead, we have been treated in the worst possible way, labelled as vexatious litigants and our lives have been ruined, simply because we believed that what we were doing would eventually benefit all Australians.
As shown on page 5169 in Australia's Government SENATE official Hansard – Parliament of Australia.Telstra's lawyers Freehill Hollingdale & Page devised a legal paper titled “COT Case Strategy” (see Prologue Evidence File 1-A to 1-C) instructing their client Telstra (naming me and three other businesses) on how Telstra could conceal technical information from us under the guise of Legal Professional Privilege even though the information was not privileged.
This COT Case Strategy was to be used against me, my named business, and the three other COT case members, Ann Garms, Maureen Gillan and Graham Schorer, and their three named businesses. Simply put, we and our four businesses were targeted even before our arbitrations commenced. The Kangaroo Court was devised before the four COT Cases signed our arbitration agreements.
It is paramount you understand the significance of page 5169 at points 29, 30, and 31 SENATE official Hansard – Parliament of Australia, which note:
29. Whether Telstra was active behind-the-scenes in preventing a proper investigation by the police is not known. What is known is that, at the time, Telstra had representatives of two law firms on its Board—Mr Peter Redlich, a Senior Partner in Holding Redlich, who had been appointed for 5 years from 2 December 1991 and Ms Elizabeth Nosworthy, a partner in Freehill Hollingdale & Page who had also been appointed for 5 years from 2 December 1991.
One of the notes to and forming part of Telstra’s financial statements for the 1993- 94 financial year, indicates that during the year the two law firms supplied legal advice to Telstra totalling $2.7 million, an increase of almost 100 per cent over the previous year. Part of the advice from Freehill Hollingdale & Page was a strategy for "managing" the "Casualties of Telecom" (COT) cases.
30. The Freehill Hollingdale & Page strategy was set out in an issues paper of 11 pages, under cover of a letter dated 10 September 1993 to a Telstra Corporate Solicitor, Mr Ian Row from FH&P lawyer, Ms Denise McBurnie (see Prologue Evidence File 1-A to 1-C). The letter, headed "COT case strategy" and marked "Confidential," stated:
- "As requested I now attach the issues paper which we have prepared in relation to Telecom’s management of ‘COT’ cases and customer complaints of that kind. The paper has been prepared by us together with input from Duesburys, drawing on our experience with a number of ‘COT’ cases. . . ."
31. The lawyer’s strategy was set out under four heads: "Profile of a ‘COT’ case" (based on the particulars of four businesses and their principals, named in the paper); "Problems and difficulties with ‘COT’ cases"; "Recommendations for the management of ‘COT’ cases; and "Referral of ‘COT’ cases to independent advisors and experts". The strategy was in essence that no-one should make any admissions and, lawyers should be involved in any dispute that may arise, from beginning to end. "There are numerous advantages to involving independent legal advisers and other experts at an early stage of a claim," wrote Ms McBride . Eleven purported advantages were listed.
Back then, Mr Redlich was, in most people's eyes, one of the finest lawyers that Australia had ever known. He was also a stalwart within the Labor Party, a one-time friend of two Australian Prime Ministers (Gough Whitlam and Bob Hawke) and a long-time friend of Mark Dreyfus, Australia's current Attorney General, so, who would be the slightest bit interested in listening to my perspective in comparison to someone so highly qualified and with such vital friends?
And remember, the COT strategy was designed by Freehill Hollingdale & Page when Elizabeth Holsworthy (a partner at Freehill's) was also a member of the Telstra Board, along with Mr Redlich, and the whole aim of that ‘COT Case Strategy’ was to stop us, the legitimate claimants against Telstra, from having any chance of winning our claims. Do you think my claim would have even the tiniest possibility of being heard under those circumstances?
While I do not condemn either Mr Redlich or Ms Holsworthy for any personal wrongdoing as Telstra Board members and, indeed, I don’t believe that either of them could have possibly condoned such a strategy, what I am asking is how any ordinary person could ever get past Telstra's powerful Board. After all, in comparison to these so-called highly qualified, revered Aussie citizens, I am just a one-time Ships’ Cook who purchased a holiday camp with a very unreliable phone service.
The fabricated BCI report (see Telstra’s Falsified BCI Report and BCI Telstra’s M.D.C Exhibits 1 to 46 is most relevant because Telstra's arbitration defence lawyers provided it to Ian Joblin a forensic psychologist who was assigned by Freehill Hollingdale & Page to assess my mental state during my arbitration. it is linked to statements made in the following page 5169 SENATE official Hansard – Parliament of Australia concerning Telstra having adopted the Freehill Hollingdale & Page - COT Case Strategy during the COT arbitrations, which Denise McBurnie of Freehill Hollingdale & Page had spuriously prepared.
What I did not know when I first had to register my telephone problems in writing with Denise McBurnie before Telstra would investigate those faults was that Telstra and its lawyers had set up this "COT Case Strategy" to hide all proof that I genuinely did have ongoing telephone problems affecting the viability of my business.
This continual writing up of individual telephone faults to these lawyers, Freehill Hollingdale & Page, to have Telstra investigate them almost sent me insane. Instead of keeping this fault evidence, I provided it to Telstra, believing this would assist them in locating the problems my business was experiencing.
I was unaware I would later need this evidence for an arbitration process. This arbitration process meant I had to retrieve back from Telstra under Freedom of Information the same documentation I had previously provided this legal firm. Imagine the frustration of knowing that you had already provided the evidence supporting your case, but Telstra and their lawyers were now withholding it from you.
If this wasn’t soul-destroying enough, imagine learning that the lawyer with who you were being forced to register your phone complaints devised a legal paper titled “COT Case Strategy” (see Prologue Evidence File 1-A to 1-C). Instructing their client Telstra (naming me and my business) on how Telstra could conceal this technical information from me under the guise of Legal Professional Privilege even though the information was not privileged. (see also page 5169 SENATE official Hansard – Parliament of Australia.
It was not of Mr Joblin's hand
It bore no signature of the psychologist
As shown in government records, the government assured the COT Cases (see point 40 Prologue Evidence File No/2), Freehill Holingdale & Page would have no further involvement in the COT issues the same legal firm which when they provided Ian Joblin, clinical psychologist's witness statement to the arbitrator, it was only signed by Maurice Wayne Condon, of Freehill's. It bore no signature of the psychologist.
Did Maurice Wayne Condon remove or alter any reference to what Ian Joblin had initially written about me being of sound mind?
On 21 March 1997, twenty-two months after the conclusion of my arbitration, John Pinnock (the second appointed administrator to my arbitration), wrote to Telstra's Ted Benjamin (see File 596 AS-CAV Exhibits 589 to 647) asking:
1...any explanation for the apparent discrepancy in the attestation of the witness statement of Ian Joblin .
2...were there any changes made to the Joblin statement originally sent to Dr Hughes compared to the signed statement?"
The fact that Telstra's lawyer, Maurice Wayne Condon of Freehill's, signed the witness statement without the psychologist's signature shows how much power Telstra lawyers have over the legal system of arbitration in Australia.
What has shocked most people who have read several other witness statements submitted by Telstra in various other COT Cases arbitration processes, as well as mine, is that although the senate was advised that signatures had also been fudged or altered in my case, changing or altering a medically diagnosed condition to suggest I was mentally disturbed is hinging on more than just criminal conduct. Maurice Wayne Condon must have attested to seeing a signature on an arbitration witness statement prepared by Ian Joblin, a clinical psychologist when no signature by Ian Joblin was on this affirmation, which is further proof that the COT story must be investigated.
What has since shocked several Senators, including Senator Joyce, was that the lawyer from Freehill Hollingdale & Page, whose signature was on the unsigned witness statement, was from the same law firm whose "COT Case Strategy" was set up by Telstra and its lawyers to hide all relevant technical proof that the COT Cases indeed did have ongoing telephone problems affecting the viability of their businesses.
Senator Bill O’Chee (was most concerned that John Pinnock had not provided me any response to his letter on 21 March 1997 to Telstra’s Ted Benjamin). It was this no response that prompted Senator Bill O'Chee to write to Telstra's Graeme Ward, regulatory and external affairs (see File GS-CAV 293-B -GS-CAV Exhibit 258 to 323 on 26 June 1998 from, stating
“I note in your letter’s last page you suggest the matter of the alteration of documents attached to statutory declarations should be dealt with by the relevant arbitrator. I do not concur. I would be grateful if you could advise why these matters should not be referred to the relevant police."
There was no transparent outcome to this matter. What did occur from Senator O'Chee statement regarding Telstra stating it was up to the relevant arbitrator to deal with the unlawful conduct of altering statutory declarations is that when an investigation by the COTs concerning why Dr Gordon Hughes allowed this type of conduct to occur unchallenged is that he as a partner of another legal firm withheld vital Telstra documents from COT Case Graham Schorer when he was Dr Hughes client in a Federal Court Action against Telstra four years previous as Chapter 3 - Conflict of Interest shows,
It is October 2022, and I have still never seen a copy of the advice that John Pinnock was officially entitled to receive from Telstra regarding this unsigned arbitration witness statement by Ian Joblin, clinical psychologist - re Maurice Wayne Condon attesting to seeing the signature on the witness statement when it was not there at all.
Criminal Conduct
Clicking on the Senate caption below will bring up the YouTube story of Ann Garms (now deceased), who was also named in the Senate as one of the five COT Cases who had to be 'stopped at all costs' from proving her case. Ann Garms discusses the sabotage document in the YouTube below that was withheld from her by the government-owned Telstra corporation, which cost more than a million dollars in arbitration and appeal and is now disclosed here as Files 1122 and 1123 - AS-CAV 1103 to 1132. It may be for the best that Ann appears not to have seen this Telstra FOI document before she died.
Stop the COT Cases at all cost
Worse, however, the day before the Senate committee uncovered this COT Case Strategy, they were also told under oath, on 24 June 1997 see:- pages 36 and 38 Senate - Parliament of Australia from an ex-Telstra employee turned -Whistle-blower, Lindsay White, that, while he was assessing the relevance of the technical information which the COT claimants had requested, he advised the Committee that:
Mr White "In the first induction - and I was one of the early ones, and probably the earliest in the Freehill's (Telstra’s Lawyers) area - there were five complaints. They were Garms, Gill and Smith, and Dawson and Schorer. My induction briefing was that we - we being Telecom - had to stop these people to stop the floodgates being opened."
Senator O’Chee then asked Mr White - "What, stop them reasonably or stop them at all costs - or what?"
Mr White responded by saying - "The words used to me in the early days were we had to stop these people at all costs".
Senator Schacht also asked Mr White - "Can you tell me who, at the induction briefing, said 'stopped at all costs" .
From Mr White's statement, it is clear that he identified me as one of the five COT claimants that Telstra had singled out to be ‘stopped at all costs’ from proving their against Telstra’.From Mr White's statement, it is clear that he identified me as one of the five COT claimants that Telstra had singled out to be ‘stopped at all costs’ from proving their my against Telstra’. One of the named Peter's in this Senate Hansard who had advised Mr White we five COT Cases had to stopped at all costs is the same Peter who swore under oath, in his witness statement to the arbitrator, that the testing at my business premises had met all of AUSTEL’s specifications, when it is clear from Telstra's Falsified SVT Report, that the arbitration Service Verification Testing (SVT testing) conducted by this Peter did not meet all of the governments mandatory specifications.
Also, in the above Senate Hansard on 24 June 1997 (refer to pages 76 and 77 - Senate - Parliament of Australia Senator Kim Carr states to Telstra’s leading arbitration defence Counsel (also a TIO Council Member) Re: Alan Smith:
Senator CARR – “In terms of the cases outstanding, do you still treat people the way that Mr Smith appears to have been treated? Mr Smith claims that, amongst documents returned to him after an FOI request, a discovery was a newspaper clipping reporting upon prosecution in the local magistrate’s court against him for assault. I just wonder what relevance that has. He makes the claim that a newspaper clipping relating to events in the Portland magistrate’s court was part of your files on him”. …
Senator SHACHT – “It does seem odd if someone is collecting files. … It seems that someone thinks that is a useful thing to keep in a file that maybe at some stage can be used against him”.
Senator CARR – “Mr Ward, we have been through this before in regard to the intelligence networks that Telstra has established. Do you use your internal intelligence networks in these CoT cases?”
The most alarming situation regarding the intelligence networks that Telstra has established in Australia is who within the Telstra Corporation has the correct expertise, i.e. government clearance, to filter the raw information collected before that information impartially is catalogued for future use? How much confidence information is there in my telephone conversations with the former prime minister of Australia in April 1993 and again in April 1994 concerning my Red Communist China episode, which I discussed with Fraser, held by Telstra officials?
More importantly, when Telstra was fully privatised in 2005, which organisation in Australia was given the charter to archive this susceptible material which Telstra had been collecting about their customers for decades?
PLEASE NOTE:
At the time of my altercation referred to in the above 24 June 1997 Senate - Parliament of Australia, my bankers had already lost patience and sent the Sheriff to ensure I stayed on my knees. I threw no punches during this altercation with the Sheriff, who was about to remove catering equipment from my property, which I needed to keep trading. I placed a wrestling hold ‘Full Nelson’ on this man and walked him out of my office. All charges were dropped by the Magistrates Court on appeal when it became apparent that this story had two sides.
Similar injustices were experienced in the COT case of Sandra Wolfe during her government-endorsed mediation process in 1997. These injustices included her having a warrant executed against her under the Queensland Mental Health Act (see pages 82 to 88, Introduction File No/9). Had interest parties not acted in the manner they did, it is possible Sandra could have been lost in an institution for the insane. Addressing Telstra on this disturbing matter, Senator Schacht says:
“No, when the warrant was issued and the names of these employees were on it, you are telling us that it was coincidental that they were Telstra employees.” (p87)
Why has this Queensland Mental Heath warrant matter never been transparently investigated and a finding made by the government communications regulator?:
On 30 September 2022, Sandra Wolfe emailed to inform me that her Telstra FOI / Mental Health Act issues were still unresolved.
Is this warrant issued under the Queensland Mental Health Act against Sandra Wolfe akin to the false information provided by Telstra to the clinical psychologist before he assessed my mental health? In my case, the consultation by this psychologist was not conducted in a private setting but in the Richmond Henty Hotel’s saloon bar!
- Why were Telstra's arbitration technical consultants from April 1993 to April 1994 discussing my time in the People's Republic of China?
- What was their interest in this matter?
- Were they going to have me committed to a hospital for the insane?
These three questions sound fanciful, but they are relevant to the statements recorded in Senate Hansard on 24 June 1997, pages 76 and 77—Senate—Parliament of Australia Senator(s) Kim Carr and Schacht asking Telstra, "Do you use your internal intelligence networks in these CoT cases?”
Anyone reading the questions raised by the AFP in their 26 September 1994 transcripts (see Australian Federal Police Investigations—Chapter 1) would have learned that Telstra had been monitoring my movements for quite some time.
Criminal Conduct
TIO Evidence File No 3-A is an internal Telstra email (FOI folio A05993) dated 10 November 1993 from Chris Vonwiller to Telstra’s corporate secretary Jim Holmes, CEO Frank Blount, group general manager of commercial Ian Campbell and other vital members of the then-government owned corporation. The subject is Warwick Smith – COT cases, and it is marked as CONFIDENTIAL:
“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 the Shadow Cabinet. …
The intermediary will raise the matter with Boswell, and suggest that Boswell discuss the issue with Warwick. The TIO 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.”
Exhibit TIO Evidence File No 3-A confirms that two weeks before the TIO was officially appointed as the administrator of the Fast Track Settlement Proposal FTSP, which became the Fast-Track Arbitration Procedure (FTAP) he was providing the soon-to-be defendants (Telstra) of that process with privileged, government party room information about the COT cases. Not only did the TIO breach his duty of care to the COT claimants, he appears to have also compromised his future position as the official independent administrator of the process.
It is highly likely the advice the TIO gave to Telstra’s senior executive, in confidence (that Senator Ron Boswell’s National Party Room was not keen on holding a Senate enquiry), later prompted Telstra to have the FTSP non-legalistic commercial assessment process turned into Telstra’s preferred legalistic arbitration procedure, because they now had inside government privileged information. There was no longer a major threat of a Senate enquiry.
Was this secret government party-room information passed on to Telstra by the administrator to our arbitrations have anything to do with the Child Sexual Abuse and the cover-up of the paedophile activities by a former Senator who had been dealing with the four COT Cases? The fact that Warwick Smith, the soon-be administrator of the COT settlement/arbitrations, provided confidential government in-house information to the defendants (Telstra) was a grave matter.
IMPORTANT AUTHORS NOTE
When three witnesses and I provided Senator Richard Alston conclusive proof that Warwick Smith had proved privileged COT Case government discussed party room information to Telstra, as the following TIO Evidence File No 3-A confirms, he was shocked. Still, he did say he would follow up on this issue with Warwick Smith as a matter of great concern. NONE of the four COT Cases received advise from either Senator Alston or Wawrick Smith on why Warwick Smith had been allowed to get away with this matter when it was so important to all four commercial assessment processes,
On 30 November 1993, this Telstra internal memo FOI document folio D01248, from Ted Benjamin, Telstra’s Group Manager – Customer Affairs and TIO Council Member writes to Ian Campbell, Customer Projects Executive Office. Subject: TIO AND COT. This was written seven days after Alan had signed the TIO-administered Fast Track Settlement Proposal (FTSP). In this memo, Mr Benjamin states:
“At today’s Council Meeting the TIO reported on his involvement with the COT settlement processes. It was agreed that any financial contributions made by Telecom to the Cot arbitration process was not a matter for Council but was a private matter between Telecom, AUSTEL and the TIO.
I hope you agree with this.”
This shows that Telstra was partly or wholly funding the arbitration process.
If the process had been truly transparent, the claimants would have been provided with information regarding the funds—specifically, the amounts provided to the arbitrator, arbitrator's resource unit, TIO, and TIO special counsel for their professional advice throughout four COT arbitrations.
It is still not known how the arbitrator billed Telstra for his professional fees or how the TIO billed Telstra for his fees, as well as those of the TIO-appointed resource unit and special counsel. This raises the questions:
Was the arbitrator and resource unit paid every month?
Did the resource unit receive any bonus for being secretly appointed as the second arbitrator in determining what arbitration documents the arbitrator was allowed to receive and what was withheld (see letter dated 11th July 1994, from Telstra to Warwick Smith)?
Without knowing how the defendants distributed these payments to the parties involved in the first four arbitrations, the TIO and AUSTEL (now the ACMA) could not continue to state that the COT arbitrations were independently administered.
To summarise the issue, the defence was allowed to pay the arbitrator and those involved during these four arbitrations. How is this different from the defendant being allowed to pay the judge in a criminal matter? It is an apparent and concerning conflict of interest.
The COTs never had a chance.
“There are regular reports from the TIO on the progress of the CoT claims.”
Senate Hansard information dated 26th September, 1997 (GS-CAV Exhibit 89 to 154(b) - See GS-CAV 124-B) confirms that:-
Ted Benjamin, Telstra’s principal arbitration defence liaison officer in Graham and Alan’s arbitrations, was also a member of the TIO Council and
During a Senate hearing into COT issues, the then-new TIO, John Pinnock, agreed that Mr Benjamin had not removed himself from council discussions of COT matters:-
Senator SCHACHT – “Mr Benjamin, you may think that you have drawn the short straw in Telstra, because you have been designated to handle the CoT cases and so on. Are you also a member of the TIO Board?”
Mr Benjamin – “I am a member of the TIO council.”
Senator SCHACHT – “Were any CoT complaints or issues discussed at the council while you were present?”
Mr Benjamin – “There are regular reports from the TIO on the progress of the CoT claims.”
Senator SCHACHT – “Did the council make any decision about CoT cases or express any opinion?”
Mr Benjamin – “I might be assisted by Mr Pinnock.”
Mr Pinnock – “Yes.”
Senator SCHACHT – “Did it? Mr Benjamin, did you declare your potential conflict of interest at the council meeting, given that as a Telstra employee you were dealing with CoT cases?”
Mr Benjamin – “My involvement in CoT cases, I believe, was known to the TIO council.”
Senator SCHACHT – “No, did you declare your interest?”
Mr Benjamin – “There was no formal declaration, but my involvement was known to the other members of the council.”
Senator SCHACHT – “You did not put it on the record at the council meeting that you were dealing specifically with CoT cases and trying to beat them down in their complaints, or reduce their position; is that correct?”
Mr Benjamin – “I did not make a formal declaration to the TIO.”
Ted Benjamin, as a TIO Council officer, would have a good idea from the TIO meetings on how far advanced each of the COT arbitrations was and what the arbitrator was discussing with the TIO (who was also the administrator to the arbitrations) on when each claimant my further advance his claim knowing this inside information assisted Mr Benjamin when to release requested FOI documents to each of the claimants and when to hold back any relevant document that could jeopardise Telstra's defence.
It was grossly unethical for Warwick Smith to allow this to happen, and it was just one more nail in each of the COT cases' coffins.
Criminal Conduct Example
Ex parte “Ex parte” is a Latin phrase meaning “on one side only; by or for one party”. An ex parte communication occurs when a party to a case, or involved with a party, talks or writes to or otherwise communicates directly with the judge about issues in the case without the other parties’ knowledge. Under the Judicial Code of Conduct, judges may not permit or consider “ex parte communications” in deciding a case unless expressly allowed by law. This ban helps judges decide cases fairly since their decisions are based only on the evidence and arguments presented to the court and the applicable law. It also preserves trust in the legal and court system.
The 22 March 1994 transcripts of a clandestine gathering, where the COT cases were not represented (see Open letter File No 54-A), shows Telstra’s Mr Chalmers, the author of the minutes, has left out points 4 and 5. Point 6 follows point 3. Where are points 4 and 5?
This shows that Dr Gordon Hughes (the arbitrator) should have never allowed this secret meeting without the COT cases being represented. Most, if not all, Western democracies would expect the defendants and their lawyers to be present in the judge’s chambers. In this case, in secret with the arbitrator, the defendants the TIO and his special counsel. The missing discussion material or questions raised at points 4 and 5 may well be why the parties present agreed to Telstra lawyers drafting the agreement, instead of the independent arbitration agreement the government and claimants were assured would be used. It could also be where Telstra and the arbitrator, Dr Hughes, agreed that Telstra would first allow the arbitration resource unit access to all arbitration procedural material (AS-CAV Exhibits 589 to 647 - See AS-CAV 590, Chapter Seven). This permitted the arbitration resource unit to decide which documents Dr Hughes and the claimants would be allowed to see and which would be discarded.
We will never know what was concealed from the COT cases during this clandestine gathering. However, in writing 18 months after the first arbitration was finalised (see Open letter File No/45-H), the arbitration resource unit admitted to Dr Hughes that they concealed at least four relevant billing claim documents from the arbitration process.
The missing questions raised at points 4 and 5 in the minutes of this clandestine meeting may be linked to the arbitrator and his arbitration resource unit allowing for the more adverse findings against Telstra to be covertly addressed outside the legal arena of the COT arbitration process.(see Chapter 14 - Was it Legal or Illegal?).
If addressing non-addressed arbitration issues had nothing to do with points 4 and 5, what could have been so detrimental to the arbitration process that these points were excluded from these minutes?
Open letter File No 54-A shows those who attended this clandestine meeting were Telstra’s arbitration liaison officer, Steve Black, Telstra’s general counsel, David Krasnostein, Telstra’s lawyer from Freehill Hollingdale & Page, Simon Chalmers, TIO special counsel, Peter Bartlett, arbitrator, Gordon Hughes, TIO Warwick Smith and his secretary Jenny Henright. Except for Jenny Henright, all were lawyers; therefore, all knew this was an illegal gathering. What was so important about this meeting that only the arbitrator and defence attended it?
Why weren’t the COT Cases and their lawyers advised of this meeting?
Upon reading this segment Open letter File No 54-A), and the following Prologue page, you will come to the same conclusion many others have: arbitrator Dr Gordon Hughes should not have secretly met with Telstra (the defendants) before arbitration to discuss what rules in the arbitration agreement would be removed and which would remain. This clandestine meeting (without the claimants being represented) also covered how to protect – to forgive – the arbitrator’s consultants from incurring any liability for negligence and to exempt the unit from being sued. Of course, this was to the detriment of the COT cases and our legal right to have recourse over the arbitration consultants if the resource unit was negligent in their duties. After reading Open letter File No 54-A), it is apparent that the arbitration resource unit was negligent during my arbitration process. I could not hold them to account for those actions due to those negligent clauses being removed from my arbitration agreement.
Before COT Cases were forced into arbitration without the necessary documents, we needed to support our claims. The arbitration agreement was altered after the first claimant, Maureen Gillan, signed the final copy and faxed it to our lawyers as the final agreement.
On the day we signed the arbitration agreement (see Open letter File No 54-B), clause 10.2.2 and the $250,000.00 liability caps in clauses 25 and 26 had been removed, and clause 24 had been modified. We were told there would be no arbitration if we did not accept these late changes.
I have always maintained our lawyers thought we were signing the arbitration agreement COT Case Maureen Gillan had signed two weeks before. I only agreed to clause 10.2.2. being removed. With banks declaring they were ready to take over our assets if we could not show imminent settlements, I buckled to removing only that clause.
No matter how much pressure was applied to them, no one in their right mind would have accepted a compromise of such magnitude. Modifying clause 24 and removing clauses 25 and 26 meant we could not sue anyone for acts of negligence. This meant the legal counsel to the arbitration and the professional consultants were now bulletproof. They could freely do whatever they liked when they liked, and there was nothing anyone could do. This website absentjustice.com shows this is precisely what happened.
The Secret Meeting tells it all the way it was:
Telstra's minutes from this clandestine meeting show no COT claimant or their representative were present at this critical meeting show at point six that:
“Mr Bartlett stated that he was unhappy that Telecom did not appear prepared to allow his firm an exclusion from liability. …
“Mr Smith stated that he thought it was reasonable for the advisers to incur some liability, and that the only matter left to be negotiated on this issue was the quantum of the liability caps.
“Mr Black said that he thought the liability caps proposed by Telecom in the amended rules were already reasonable.” (See Open letter File No 54-A)
Points 4 and 5
I reiterate that Open letter File No 54-A shows the author of these minutes has left out points 4 and 5 i,e; point 6 follows point 3 is of great concern. Why would points 4 and 5 be removed if they were not damning evidence against the conduct of the arbitration process?
What information was exposed initially in those two points that prompted Telstra’s lawyers to remove them from the minutes the arbitrator would have received or composed his own? (see Open letter File No 54-A.
This further proves that Dr Gordon Hughes should have never allowed this secret meeting to occur without the COT cases being represented. Most, if not all, Western democracies would condone allowing the defendants and their lawyers to be present in the judge’s chambers (arbitrator’s office). The missing discussion material or questions raised at points 4 and 5 may well be why the parties present agreed to Telstra lawyers drafting the agreement instead of the independent arbitration agreement the government and claimants were assured would be used. It could also be where Telstra and the arbitrator, Dr Hughes, agreed that Telstra would first allow the arbitration resource unit access to all arbitration procedural material (AS-CAV Exhibits 589 to 647 - See AS-CAV 590, Chapter Nine). This allowed them to decide which documents Dr Hughes would see and which would be discarded (see also page 4 here, which shows Telstra’s Steve Black wrote to Warwick Smith on 24 July acknowledging the resource unit would be allowed to vet which documents Dr Hughes would see and which he would not.
To date, the TIO has declined to explain what circumstances occurred to change this. Who pressured the TIO to allow the advisors to be exonerated from all liability about our arbitrations? Why would the TIO special counsel be:
“unhappy that Telecom did not appear prepared to allow his firm and exclusion from liability”?
Why did it not occur to the TIO or the arbitrator that removing the directions regarding liability would allow complacency to creep into the arbitration process? This is precisely what our absentjustice.com pages show happened.
Had COT cases been represented at this hearing (as we were legally supposed to be), we would have been fully aware before 21 April 1994, the day we signed this document, that our rights to fair arbitrations would be violated.
Hiding behind a tainted confidentiality agreement - Section three
Although the 19th April 1994 Arbitration Agreement issue has been addressed elsewhere on absentjustice.com, it is important to link it here to the issue when the arbitrator's secretary faxed a copy of the FTAP Agreement to lawyers, Mr Goldberg and William Hunt. Mr Hunt sought a legal opinion on the agreement before Graham Schorer and I were to sign it on 21st April 1994. The following three clauses are included on page 12 of the version of the agreement faxed by the arbitrator's secretary:-
Clause 24: Neither the Administrator nor the Arbitrator shall be liable to any party for any act or omission in connection with any arbitration conducted under these Rules save that the Arbitrator (but not the Administrator) shall be liable for any conscious or deliberate wrongdoing on the Arbitrator’s own part.
Clause 25: The liability of Ferrier Hodgson and the partners and employees of Ferrier Hodgson for any act or omission in connection with any arbitration conducted under these rules (other than in relation to a breach of their confidentiality obligations) shall be limited to $250,000 jointly.
Clause 26: The liability of DMR Group Australia Pty Ltd and the directors and employees of DMR Group Australia Pty Ltd for any act or omission in connection with any arbitration conducted under these rules, other than in relation to a breach of their confidentiality obligations) shall be limited to $250,000 jointly.
In the agreement presented to the COT claimants for signing two days later, on 21st April 1994, clauses 25 and 26 were removed and only some of the wording was added to clause 24
The final version of Clause 24 reads:
“Neither the Administrator, the Arbitrator, the Special Counsel, a partner or employee of the legal firm of which the Special Counsel is a partner, a member of the Resources Unit, Ferrier Hodgson or a partner or employee of Ferrier Hodgson, DMR Group Australia Pty Ltd shall be liable to any party…”
Clause 24 now had a different meaning than the original three separate clauses. It freed Peter Bartlett and Minter Ellison from any risk of being sued for misconduct in their role as Legal Advisors to the process and thereby provided no incentive for them to ensure the COT claimants were involved in a fair and just process.
The altered clause 24 also removes the original $250,000 liability cap against FHCA and DMR from the Arbitration Agreement faxed to Mr Goldberg and William Hunt on April 19, 1994.
This letter in June 1994, from Telstra’s Arbitration Liaison Officer to the TIO Special Counsel, who had been exonerated from all liability for his part in the first four COT arbitrations, included the new version of the arbitration agreement that would be used for the following 12 COT claimants. Point 11.2 of this new agreement states that
“The liability of any independent expert resource unit used by the arbitrator, for any act or omission on their part in connection with the Arbitration, shall be limited to $250,000.00″.
Thus, two months after the $250,000 liability caps had been removed from my arbitration agreement, they were reinstated into the agreement for the remaining 12 COT claimants. Why were the claimants NOT advised of the reinstatement of the liability clauses? Why were we not offered the opportunity to go back to the original agreement that the arbitrator’s secretary had faxed to Alan Goldberg and William Hunt (our lawyers) as the approved final agreement? Why were the three claimants (including me) forced to continue with an arbitration agreement that allowed the Resource Unit to be safely exonerated from all liability, YET in the agreement used by 12 other COT claimants; they were mandated to conduct those arbitrations within the law? Three COT claimants, Graham Schorer, Ann Garms and I, were discriminated against without question. Exhibit Hacking-Julian Assange File No/42 is from the TIO’s Standard Arbitration Rules used for other COT-type claims against the Telstra Corporation. Liability is covered in Rule 31, which states:
“The liability of any independent expert used by the Arbitrator is limited to $250,000 for any act or omission on their part in connection with the Arbitration”.
This means that any Australian citizen who enters into a TIO-administered arbitration could sue any independent expert used by the arbitrator to the limit of $250,000 “for any act or omission on their part in connection with the Arbitration”. Graham Schorer and I were not afforded these same entitlements. This was, in fact, illegal as well as discriminatory. That the defendants (Telstra) in arbitration were able to discuss with the official administrator of the process (in this case, the TIO) whether certain discovery documents or pieces of evidence should be released to the arbitrator and even whether they should be released at all, shows just how much control the defendants (Telstra) had over the administrator.
If this forced removal of the $250.000.00 liability caps for one section of the COT group and not all of the COT cases is not criminal discrimination by Australia's Establishment of the Worst Possible Kind, then what is
