Chapter Three - The Sixth Damning Letter

 

Arbitration, a mechanism prevalent in Australia, has been observed to safeguard the interests of prominent corporate entities at the apparent detriment of democratic principles. Notably, the non-disclosure stipulations within government-sanctioned arbitration proceedings have veiled assorted transgressions committed by public officials, who appear to have grown complicit in such practices. Terms such as bribery, exploitation, fraud, and nepotism aptly depict the scope of impropriety divulged by available resources. This disclosure illuminates the deleterious ramifications of the arbitration process, which has inflicted harm upon individuals relying on the appointed arbitrator.

Corrupt lawyers who pretend to be accredited arbitrators and mediators when they are not engaged in legal abuse. This form of legal bullying also takes place when these non-accredited professionals create confidentiality agreements to hide their lack of experience. For example, the official COT arbitrator, Dr. Gordon Hughes, continued to arbitrate on several cases while taking his grading exams. This behaviour goes against the principles of trust and undermines the integrity of arbitration and mediation.

Corruption in the arbitration process, involving unethical practices that undermine fairness, constitutes corporate fraud. The lack of a corporate fraud prevention program in Australia's arbitration system is a concern. If arbitrators continue to preside over cases in a manner akin to those involved in the Casualties of Telstra arbitrations, it threatens the integrity of the arbitration process.

Part 1

Corruption in Arbitration 

Corruption, misleading and deceptive conduct in government, including non-government self-regulators, undermines the credibility of that government. It erodes the trust of its citizens, who are left without guidance. Corruption is the cancer that destroys economic growth.<

On 17 February 1996, Dr Hughes wrote to Laurie James, President of the Institute of Arbitrators (see point 3 above), attaching a copy of John Rundell’s letter of 13 February 1996 to the TIO). In this letter, Dr Hughes advised Laurie James:

“I consent to you disclosing this letter to Mr Smith, save that I do not consent to the disclosure of the attached correspondence from third parties.” (See Prologue Evidence File No/8-E)

Prior to Mr. Rundell and Dr. Hughes's February 1996 correspondence, AUSTEL, the government communications regulator, confirmed that my concerns were completely valid. Shockingly, none of the billing claim documents I legitimately raised during my 1994/95 arbitration process were investigated or addressed. The arbitrator and the official administrator of the arbitration process deliberately misled and deceived Laurie James, the only person who could have asked probing questions regarding the arbitration process's ambit. My letter to Gareth Evans, dated 4 January 1996 (Open Letter File No/49), explicitly raised serious issues that affected all the arbitrations still in progress. Dr. Hughes's letter to Laurie James, entitled "Letter to Senator Evans," also attested to these serious issues.

“Mr Smith provided you a copy of a letter to Senator Gareth Evans dated 4 January 1996. I presume you require me to comment on those aspects of the letter which reflect upon my conduct as an arbitrator.

“The letter to Senator Evans is littered with inaccuracies. Some examples are:

contrary to Mr Smith’s assertion on page 3, his 24,000 (sic) documents were all viewed by me, Ferrier Hodgson Corporate Advisory, DMR Group Inc (Canada) and Lane Telecommunications Pty Ltd in accordance with the arbitration procedure.”

Mr Smith's assertions on page 4 that a technical expert, Mr Read refused to discuss technical information at his premises on 6 April 1995,  is correct - in this regard.Mr Read was acting in accordance with his interpretation of my direction which prohibited him from speaking to one part in the ansence of the other party at any site visit.  (Open letter File No/45-G and Open Letter File No/49)

Why did Dr Hughes (the arbitrator) deceive Mr James (the President of the Institute of Arbitrators Australia) about these 24,000 documents which Telstra withheld from me because I assisted the AFP with their investigations into Telstra's interception of my telephone conversations and fax transmissions? Dr Hughes and his team could not have read and collated these late received documents because 70% of those 24,000 documents were re-couriered by Golden Messenger to Brisbane to COT Cases Ann Garms.  Why did the arbitrator tell Mr James that all those documents were assessed?

The 17,000 documents couriered to Brisbane were related to the Ericsson AXE telephone equipment used in the Fortitude Valley telephone exchange in Queensland, not the Portland Ericsson AXE telephone equipment which serviced my business.  

The Canadian and Australian technical consultants’ 30 April 1995 reports, under the heading “Cape Bridgewater Documentation,” states “More than 4,000 pages of documentation have been presented by both parties and examined by us.” (See Arbitrator File Nos/29 and 30) These reports are covered more thoroughly in other pages.

At point 2.2 on page 4, in Dr Hughes’ final award, dated 11 May 1995, he notes, “In all, I have read in excess of 6,000 pages of documentary evidence submitted by the parties.” (See Prologue Evidence File No/9-A)

If either Mr James or Senator Evans had been provided with the truth about these 24,000 documents, my arbitration matters could have been completed in early 1996. So far, the arbitrator and the TIO office have avoided being called to account for their devious and unethical conduct. Will they ever be held accountable?

Why didn't Dr Hughes tell Laurie James that he was aware of Telstra tampering with evidence after I had provided it to an arbitration process? This must be one of the worst crimes a defendant (in this case, the Telstra corporation) could commit against an Australian citizen.

Part 2

TF200 EXICOM falsified 'beer in the telephone' Report 

Over two decades ago, evidence of tampering was presented to the Telecommunications Industry Ombudsman, John Pinnock, the TIO council chair, The Hon. Tony Staley, Telstra's board chair, David Hoare, and CEO Ziggy Switkowski AO. However, they did not investigate it despite Telstra's internal investigations that uncovered the unlawful conduct during your arbitration. It's surprising that Ziggy Switkowski accepted an Order of Australia award in 2014 despite sitting on this crime for over 20 years. The current Telstra CEO and chair, along with Ziggy Switkowski, have a moral and legal obligation to investigate the criminal misconduct committed by previous Telstra employees during your litigation. It's important to learn why Telstra's executives allowed unscrupulous criminals, corrupt politicians, and lawyers who control the legal profession in Australia to take charge of the COT case arbitrations. The actions of these lawbreakers are shameful, hideous, and treacherous.

The conclusion of Telstra’s original arbitration TF200 defence report, prepared and signed off by Telstra, states:

“The cause of the fault condition has been confirmed by Telecom Research to be due to the presence of a foreign substance possibly beer inside the telephone case which directly caused the incorrect operation of the telephone membrane hookswitch. When the hookswitch was removed from the foreign substance, the telephone operated correctly.

“The state of the telephone when received suggested that the telephone was not well cared for by the customer.

“If the customer had reported the liquid spillage when it occurred the telephone would have been replaced under standard maintenance procedures with no resultant loss of business.”

A drop of silicon 

Telstra eventually sold two containers of T200s as scrap to Liberty USA Pty Ltd, which moisture-proofed the phones with silicon and resold them to Poland. John Tuczynski, managing director of Liberty Australia Pty Ltd, who was also an ex-Polish national, like Mr Switkowski, secured the lucrative deal to sell these faulty TF200s.

Mr Tuczynski’s method, using silicon on TF200 hookswitches to moisture-proof the phones, was a technique Telstra did not know. This could have saved the corporation money and EXICOM customers years of heartache. Remember, the Australian government and its citizens owned the Telstra Corporation at this time, but instead of looking for a solution to fix the EXICOM problem, Telstra decided it was easier and cheaper to tamper with the TF200s and blame the customer for any faults.

Telstra’s Ted Benjamin admitted, on 26 September 1997 to a Senate estimates hearing, that, as a TIO council member, he attended meetings where COT cases’ arbitrations were discussed. He also admitted that at no time did he advise these meetings of his conflict of interest, i.e., he never advised he was a co-in-charge of Telstra’s arbitration defence of the COT claims. The Senate committee hearing condemned both John Pinnock and Mr Benjamin for allowing the defendants access to how the arbitrations were progressing. During the period when three senior Telstra executives were present at monthly TIO board and council meetings, the COT cases were not represented at all. In August and September 1995, Mr Benjamin also admitted to John Pinnock that 50 per cent of my May 1994 requested arbitration FOI documents were NOT released to me until 23 May 1995, after the arbitrator, Dr Hughes, brought down his award.

The material released on 23 May 1995, 12 months after I requested it, proved Telstra knowingly used the impracticable Cape Bridgewater Bell Canada tests as arbitration defence documents. Again, as happened during the arbitration process, no one investigated why Telstra was allowed to withhold this vital information from me.

In my letter of 9 August 1995 to Mr Benjamin, I noted:

“I am now asking Telstra to supply this TF200 Telephone Report under the FOI Act. I am forwarding an additional $30.00 for this request . . . . 

“It appears by your own admission, in your letter dated 3 August 1995, that Telstra has only supplied various FOI documents in accordance with Telstra’s own views regarding each particular application.

“I find this late admission by Telstra of FOI documents most alarming, especially when I have been in a Settlement/Arbitration Procedure for some 15 months and documents have not been provided in accordance with the FOI Act . . . . 

“I demand that Telstra provide all the documentation associated with this TF200 Report so as to allow me the chance to defend those allegations contained within the Report. I await your response with regard to this matter. . . .

“I hope that the result on my request for the supply of the original documentation related to the TF200 Report receives a different response from you than that received to my request for this ELMI data” (Open letter File No/42)

I did eventually receive a copy of the second TF200 report, which shows that tests were done on 24 and 26 May 1994, and which therefore proves that the first tests, on 10 and 12 May 1994, were fabricated (see also Open letter File No/42), which I received on 28 November 1995 (six months after my arbitration was concluded). Similar ELMI testing data was not released to me by the Australian Communications and Media Authority (ACMA), under a number of FOI requests I made between 2001 and 2008.

Arbitrator File No/45 shows that on 30 March 1995 – 11 months before the arbitrator’s letters to Mr James – the arbitrator’s resource unit wrote to the TIO outlining the progress of my arbitration. The timeline indicates that I informed them about receiving my discovery documents through the agreed FOI process. However, Telstra submitted its defence of the claim only after my claim was finalized. I could not provide evidence of ongoing telephone problems and requested the arbitration to obtain extracts from the log books of the Portland and Cape Bridgewater Telstra telephone exchange, detailing all the faults during my arbitration period up to the conclusion date when the arbitrator issued the award. Unfortunately, Dr Hughes denied this request on May 5, 1995, suggesting a biased process favouring Telstra.

It is important to note that John Wynack, Director of Investigations for the Commonwealth Ombudsman’s Office, and Tony Morgan, a National Chief Adjuster for GAB Robins (Australia), are both aware that most of the 24,000 documents provided were not relevant to my Cape Bridgewater business. These documents lacked identification or schedules to explain their origin. They were associated with the Fortitude Valley and Lutwyche Ericsson AXE telephone exchanges in Brisbane, which are over 1,200 kilometres away from my business's telephone exchange. The delivery of these irrelevant documents seems to have been intentionally orchestrated to cause distress.

More than 16,800 FOI documents were meaningless without a schedule detailing their relevance. I had only 13 days to address Telstra’s defence using documents I could not interpret.

When I advised Warwick Smith, the Telecommunications Industry Ombudsman (and administrator to my arbitration) about this terrible situation, being left with only 13 days to decipher what documents belonged to me and which belonged to the two other COT cases, he said to contact Dr Hughes, the arbitrator. However, the arbitrator’s office informed me that Dr Hughes had taken his usual Christmas break, which meant the 13 days left for me to answer Telstra’s 12 December 1994 defence would be over by the time Dr Hughes returned from leave. Warwick Smith’s response to this was: do the best you can.

 

Part 3

The Log Book

There was also no mention in Dr Hughes’ letter to Laurie James concerning the documents provided by Telstra were not intended for me or that Telstra had continued to withhold the main arbitration requested document, namely the Portland/Cape Bridgewater Ericsson AXE telephone exchange logbook, which was requested under FOI and through the process of discovery. Dr Hughes was aware Telstra had not released the exchange logbook, which had the working notes of all my telephone complaints and those of other local Telstra subscribers for the period of my claim. The veracity of the logbooks is irrefutable, yet Dr Hughes would not request the Cape Bridgewater exchange logbook for me. The Commonwealth Ombudsman’s office also requested that this logbook be supplied but could not obtain it. (See Home Page File No 10 -A to 10-B) and Arbitrator File No/48 

My facsimiles and subsequent follow-up telephone conversations on 4 and 5 May advised Dr Hughes of the nightmare these late 24,000 FOI documents caused for me. I asked for an investigation into why so many FOI documents, without proper FOI schedules, had been dumped on me too late in submitting into arbitration, actually belonged to Ann Garms and Maureen Gillan and therefore were useless. I likewise advised Dr Hughes that fresh evidence was not made available to me by Telstra because I had assisted the Australian Federal Police with their investigations, suggested some of the faxed documents that I had previously reported to him and his Secretary Caroline Friend appeared to have been intercepted en route to his office.

On 5 May 1995, six days before Dr Hughes brought down his award after having been advised on 30 April 1995 by DMR & Lane (the arbitration technical consultants) that their reporting still needed extra weeks to complete, he ignored this request for additional weeks even though at point 2.23 in the DMR & Lane report it can be seen they only investigated 11% of my legally submitted claim documents. Dr Hughes, whom the government communications regulator AUSTEL had also advised, that my ongoing phone and faxing problems were of public interest because if my claims were correct, many other Australians would suffer the same ongoing faults. Regarding this advice from AUSTEL, Dr Hughes was still prepared to write the following:

“I refer to your telephone message of 4 May and your facsimiles of 4 and 5 May 1995 and advise I do not consider grounds exist for the introduction of new evidence or the convening of a hearing at this stage.” 

He also reiterated his previous instructions: 

“any comments regarding the factual content of the Resource Unit reports must be received … by 5:00pm on Tuesday 9 May 1995”  (See Arbitrator False Evidence File 1).

Dr Hughes cared little about the justice he denied me by not allowing me to submit those of the 24,000 FOI documents I could decipher. He also refused to convene a hearing to determine why Telstra’s threats – to withhold all future relevant FOI documents from me – came to fruition. Two of the questions I raised in my telephone messages of 4 May 1995 and facsimiles of 4 and 5 May 1995 were why the arbitration technical report had not been signed off and had only assessed 11% of my claim documents. It is clear from this letter and Dr Hughes's 11 May 1995 award that he ignored both those questions.

Dr Hughes knew that he was saving Telstra thousands upon thousands of dollars in compensation by not considering the grounds that existed for the introduction of the evidence that was initially disallowed to be submitted while the AFP was investigating Telstra’s monitoring of my single-club patrons.

What is so important concerning the two mini-reports I had compiled from these non-submitted 24,000 documents, which Dr Hughes would not allow me to submit into arbitration is when Dr Hughes submitted his final findings in his award at 2.1 d he notes:

"...I considered it essential that both parties had every reasonable opportunity to place relevant material before me, regardless of the time frame set out in the arbitration" 

If this was true, why did Dr Hughes refuse to allow me the extra time on 4 and 5 May 1995 to submit these two mini-submissions?

Part of the submission I wanted to submit to Dr Hughes was proof beyond all doubt that the Cape Bridgewater BCI tests had never taken place at any time, as shown in the BCI report. I even discussed this latest BCI issue in my conversation with Dr Hughes on 4 May 1995. It is clear, there is more to Dr Hughes not allowing me to submit this late-received BCI material. 

My pleas to the arbitrator to bring Telstra to account for their actions when I had still not received my requested discovery documents. Amazingly, he refused to take calls, as his secretary, Caroline Friend, is aware. Even though the Commonwealth Ombudsman had to be brought into arbitration in order for Telstra to obey the Freedom of Information (FOI Act) and the government solicitors took control of the delivery of my arbitration documents, which then never arrived until 23 May 1995, two weeks after the conclusion of my arbitration the arbitrator had the gall to write in his draft award at point 2.23: 

"...Although the time taken for comSenate Hansard Evidence File No-1 )

These official statements in the Senate occurred months before Dr Hughes and John Pinnock spread falsehoods concerning my FOI issues to Laurie James, as is shown below in chapter four.

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