Deliberate maleficent
Chapter 10
And the faults continue
The issues drag interminably on. Are they waiting for me to give up and go away? My faxing problems have never stopped. If documents are sent by courier and don’t arrive, we have recourse through the courier company. If documents sent by fax through Telstra’s network are lost however, it would seem there is no recourse.
The missing faxes
In June 1998 I asked five different businesses to write about the fax problems they encountered with me. Hawker’s Secretarial Service in Portland said, ‘… being the only secretarial service in Portland, my fax machine is a valuable tool in my office and as to date I have never experienced problems with any of my other clients.’ These letters were passed to the TIO’s office. But it is not just the ongoing problem that bothered me. It is the custom I lost.
On 1 July 1998 I wrote to the Deputy TIO, Mr Wally Rothwell regarding faxes that had been ‘lost’ in transit in the course of my arbitration, or which were delivered, but were unreadable. Since the time of my arbitration I have been trying to get this issue addressed.
I copied on to Mr Rothwell a number of faxes returned to me from the arbitrator’s office once the arbitration had been completed. These faxes had arrived at the arbitrator’ office as only half pages or as blank pages. There were also bank statements I faxed to Ferrier Hodgson, which arrived at their office with no details showing. I asked the TIO how FHCA could have assessed my financial position correctly when some of the documents I sent them arrived blank. Predictably, there was no response from the TIO.
On 30 July 1998, the Australian Federal Police wrote that they were unable to help me track down my missing faxes, and on 18 August 1998, the Attorney General wrote that he too could not be of assistance. If the Federal Police and the Attorney General’s office are not concerned about the loss of legal documents in transit via a fax machine, then who can help me?
I also wrote to the TIO and the Minister for Communications, asking them to instruct the arbitrator’s office and the TIO’s legal counsel to supply me with a copy of the ‘missing’ claim documents, under the rules of the arbitration which Telstra and I both signed.
Points 6, 7.2 and 25 of the FTAP rules state:
6. A copy of all documents and correspondence forwarded by the Arbitrator to a party or by a party to the Arbitrator shall be forwarded to the Special Counsel. A copy of all documents and correspondence forwarded by a party to the Arbitrator shall be forwarded by the Arbitrator to the Special Counsel and the other party.
7.2 The Claimant shall within 4 weeks of receipt of written notice from the Administrator pursuant to Clause 5 that he has received completed and signed Request for Arbitration forms send to Telecom and to the Arbitrator in duplicate, its Statement of Claim and any written evidence and submissions (‘the Claim Documents’) in support of that claim.
25 Within 6 week of publication of the Arbitrator’s award, all documents received under this Procedure by the parties, the Administrator, the Resource Unit and/or the Arbitrator and all copies thereof, shall be returned to the party who lodged such documents.
If they adhered to the FTAP rules, Telstra and the TIO’s legal counsel should have had copies of everything I sent to the arbitrator, whether I sent it by mail or fax. And according to the same rules, the TIO was bound to instruct Telstra or their legal counsel to supply me with the ‘missing’ documents. The only conclusion I can draw from this is that the TIO must be aware that the majority of my claim documents never reached Telstra’s defence unit or the legal counsel in the first place, and therefore knows it is pointless to direct them to return these documents to me. Very little in the actions of the TIO has reassured me or the other members of COT as to the capacity for impartiality of that office in its role as standing between us and Telstra.
On 26 February 1999, I sent three faxes to COT member, Graham Schorer: the first and third of these arrived at Graham’s office as intended but the second did not. Graham’s fax journal shows the two faxes which were received, marked with an arrow. According to my Telstra account, I was duly charged for the long-distance transmission of all three. If I hadn’t happened to phone Graham to discuss the document which didn’t arrive, we might never have discovered it had ‘gone walkabout’ between our faxes. Now most people would accept a single incident like this as just a ‘blip’ in the system. Unfortunately this has happened on too many occasions, and it was happening back in 1994 over the months during which I was lodging my claim with the arbitrator.
We also have to wonder how many other similar occurrences have not been noticed over the years and how many individual or business people send faxes and never discover that they didn’t arrive at their intended destination and so happily pay their Telstra accounts.
Still trying to get my original claims addressed
On 17 February 1998, I sent the TIO a bound submission detailing my continued and ongoing incorrect charging by Telstra. The submission started with the beginning of my arbitration and included copies of pages of the transcript of the oral hearing conducted on 11 October 1994 with Telstra, the arbitrator and myself, and a representative of the TIO, showing that my claim documents relating to incorrect charging were accepted into the arbitration procedure. There were several pages explaining the significance of the material I was submitting, so many that, on page 94, the arbitrator is reported as stating during the course of the oral hearing, ‘I don’t think we need any further examples.’
Yet even with this mountain of evidence the TIO still stated that the problem began only ‘at a late stage of the arbitration process.’ It’s as if it would stick in his throat to actually present my case on its own terms, impartially. On the positive side, the TIO did respond. He asked Telstra whether they agreed ‘that this matter was not addressed’ in my arbitration. Wake up! I felt like yelling, not for the first time. Of course, at the time of writing this, I have yet to receive Telstra’s response. I’m not holding my breath. I can only suppose that a judgement against Telstra in the matter of incorrectly charging their customers on a regular basis would set a dangerous precedent. I pay the price, while Telstra avoids facing the issue at all costs. And behind Telstra stands the TIO, and Austel, and the government.
In 1998 I also sent the transcript of the 1994 oral hearing to the TIO and the Minister for Justice, alerting them to how, at that time at least, the arbitrator agreed to address Telstra’s tapping of my phone lines and listening to my private phone calls during the arbitration procedure.
Arbitrator to Smith: ‘... effectively any reference in your claim documents to date regarding unlawful phone tapping will be treated by me and the resource unit as unsubstantiated and therefore not relevant for the purpose of determining whether you’re entitled to compensation.’
Me: ‘No, I will leave it in the claim because —’
Arbitrator: ‘You understand if you leave it in your claim, Telecom is entitled to ask what is the basis for this allegation?’
Me: ‘Right, Okay, yes, all right.
Arbitrator: ‘So you want to leave the allegation in?
Me: ‘I will leave the allegation in.’
But these claims were not addressed, either in my award, or by the TIO, or indeed by the Minister.
If Telstra is allowed to get away with eavesdropping on businesses while it is government owned, then what does the future hold for Australia once it is completely privatised, with no government control at all? Even now, how many other businesses are having their private matters watched? How many overseas investors are being ‘bugged’ without their knowledge? How many businesses fighting a take-over bid have their private information passed around to whoever might benefit from a bit of inside knowledge? How many faxes are copied to someone other than the intended recipient?
An article on electronic security in the Melbourne Age of 10 October 1998 reported that it was possible for anyone with access to Telstra’s network to monitor faxes as they are sent and to keep copies without the sender’s knowledge. This article also pointed out that telephone operators can eavesdrop on calls and Telstra can access all calls, though this is supposed to be under strict controls.
After three more years of telephone complaints after my award was handed down — of line-locks, dead-line problems, missing faxes and the 1800 billing problems — Telstra finally sent two representatives to see me at Cape Bridgewater on 14 January 1998. By this time I had put together a mass of evidence consisting largely of Telstra’s own data and my itemised accounts. The two Telstra representatives explained they were liaising with the TIO’s office regarding my complaint that my arbitration had not addressed a number of issues raised in my original Letter of Claim. They considered my evidence sound and took it away with them. In their notes of this meeting they said:
… Mr Smith produced various printouts of CCAS data in comparison with his Telstra accounts. In many instances the calls add up however, in some cases there appeared to be differences in the duration of the call time. I note that the examples given by Mr Smith at the meeting spanned the period of the Arbitration and after the conclusion of the Arbitration.
Senator Alston wrote to David Hawker my Member of Parliament on 27 February 1998 and again on 29 May 1998 telling him that Telstra was examining the documentation with a view to resolving my concerns. Things were looking promising, I thought.
Then in a letter dated 9 June 1998, the Deputy TIO referred to an intended meeting with the arbitrator, in order to ‘clarify whether he did consider the 1800 issue during the arbitration.’ Pay attention, I felt like shouting. There had never been any doubt about this. A 15 November 1995 letter from the TIO-appointed Arbitration Project Manager to the TIO was quite clear that NONE of the billing issues, including the 1800 issues, were ever investigated during my arbitration. And on 3 October 1995 Austel wrote to Telstra, with a copy to the TIO, asking why the billing issues I raised during my arbitration had NOT been addressed.
In July 1998 seven letters passed between the TIO office and me, all proving that many of my claim documents which my Telstra account shows were faxed to the arbitrator’s office in 1994–95 had either not arrived, or had arrived in a damaged state. Yet on 25 August 1998, Mr Pinnock (TIO) wrote to me:
The only issues that I am considering, as the former Administrator of your arbitration, are the alleged overcharging for your 1800 service and matters pertaining to your Gold Phone service, and whether they were considered in the final award.
There is no mention of my complaints of lost faxes, not even an explanation of why he is not considering them. I have to wonder, is there some reason behind this omission? My submission was very clear about the importance of the issue of the lost faxes. Why was he avoiding it? Mind you, nor did he address the issues he said he was considering.
In June 1996 I had written to advise the TIO that four 1800 billing claim letters addressed to the arbitrator had not been provided to me during my arbitration. On 2 August 1996, in response to that letter, the Resource Unit admitted to the TIO and the arbitrator that they had indeed withheld these letters. In 2002 I received back a copy of my letter to the TIO dated 26 June 1996, and found that the TIO had added a handwritten note at the bottom of this letter, stating:
‘These are quite serious allegations. We need to respond to specific letters Smith says weren’t forwarded or received and provide answers on each.’
I have sent some sixty to seventy letters to the TIO since 1996, asking his office to follow up on these ‘serious allegations’ (which are in fact not allegations, but the truth). The TIO’s office has refused bluntly, and reminds me that if I am not satisfied I can take them and the arbitrator to court, well aware that I do not have that sort of money.
I call this criminal collusion. What is more, as I have already shown, Austel and the TIO allowed Telstra to secretly address these same four 1800 billing documents in October 1995, five months after the end of my arbitration. Had the TIO and the defendants concocted some deal so these billing documents could be hidden from the arbitrator and me? And why? So that Telstra could address them outside of the arbitration, compromising my legal right to challenge Telstra’s defence of these documents.
Telstra’s CEO, Frank Blount, admitted the breadth of this 1800 billing problem in his 1999 book Managing in Australia. Not only the billing, but most aspects of the performance of the 1800 ‘product’ were, as the book notes, ‘sub-standard’, and Blount’s response, when apprised of this, was one of ‘shock’.
And Telstra management certainly knew this four years earlier when they knowingly supplied the government regulator with grossly inaccurate information in my arbitration, and indeed when the Resource Unit’s technical consultants refused to investigate the evidence regarding my 1800 line.
Finally I have had enough
In June 2001 I put the business up for sale and in December that year Darren Lewis took possession. Cathy and I kept the property next door. I believed that the problems with Telstra had become a personal vendetta and that they would disappear when I was no longer involved. Alas, that was not the case.
From March 2002, Darren Lewis wrote numerous letters to the TIO, complaining of fax related problems of a similar nature to those I had suffered. Mr Lewis received the support of the Hon David Hawker, who wrote to him in October 2002:
Given the serious communications problems encountered by the former proprietor of your business (Mr Alan Smith), I intend to make representations on your behalf directly to the Federal Minister for Communications and Information Technology.
In November 2002 the Channel 9 Sunday Program featured the camp in a story on various COT cases and Telstra. Following the program, I received a letter from a Barry Sullivan:
After viewing the Sunday programme, I realise the similarities your business and others had with Telstra ten years ago with the similarities our building business had, when we lived at Bridgewater. During a period of time between the late 1980s and early 1990s we had considerable amount of difficulty with our phone. Our phone problem had such a negative effect on our building business over a period of time that our work dried up.
I had not come across Barry Sullivan’s case during the time of my arbitration. In fact, Austel had passed on to Telstra information regarding other Cape Bridgewater residents who were experiencing ongoing telephone problems similar, to the ones I had experienced but kept this information from me (and presumably the arbitrator) during my arbitration. By the new millennium though, the issue was well and truly public. Under the headline ‘Plans afoot to attract tourists’ the Portland Observer wrote on 8 August 2003:
The Cape Bridgewater Tourist Association is planning a major swimming event each New Year’s Day in a bid to attract tourists to the area. At their meeting on Tuesday, association members also expressed continuing problems with the telecommunications into the area.
One operator Denis Carr said he had been told Telstra was rectifying the problem.
I hope he wasn’t holding his breath.
Meanwhile, things were not improving for Darren Lewis. In November 2002 an article in the Portland Observer noted:
The telecommunications problems which plagued former Cape Bridgewater Holiday Camp operator Alan Smith have continued to beset current owner Darren Lewis. Mr Smith is a founding member of the Casualties of Telstra. Mr Lewis said this week he had experienced several problems with the phone and fax service since taking over the Cape Bridgewater Holiday Camp last year.
‘Telstra admits there is a fault and they are trying hard to solve it,’ he said.
But in January 2003, Darren Lewis was obliged to write to the TIO John Pinnock:
As well as speaking to David Hawker’s representative this morning, I also had a disturbing discussion with Tony Watson, the Telstra fault technician assigned to my case. Mr Watson informed me (in a roundabout way) that he is reluctant to supply me with any more information in relation to our phone faults because he knows I am in contact with Alan Smith, the previous owner of the business.
Was Telstra afraid I might attempt to reopen my arbitration? Or was Mr Watson still holding a grudge against me because of something that was supposed to have been addressed in my arbitration nine years before? Either way, it is outrageous that Darren Lewis had to suffer such treatment — and that such treatment is basically endorsed by the government, which refuses to confront Telstra.
Back to the politicians
In 2002 there was another attempt to initiate a government investigation into the travesties around the COT arbitration cases, this time by Senator Len Harris of Queensland, who wanted to see justice for the sixteen COT cases who missed out following the Senate Inquiry. The Senator was advised the government would look into those cases he had raised, but no investigation ever took place. The same issues were raised again, three years later, by the newly elected National Party Senator, Barnaby Joyce, who had just toppled Senator Harris for the same Senate ticket. Both Senators, representing two different parties, felt strongly about the denial of natural justice in the COT cases and were determined to redress it.
In July 2005 Senator Joyce agreed to add his vote to ensure the sale of Telstra went through the Senate, but only on the condition that the unresolved arbitration issues of the COT cases were properly and officially dealt with. But, once he had cast that crucial vote, the Minister for Communication Helen Coonan did a back-flip on her word and the COTs were shafted yet again. Senator Joyce was livid, and for a year demanded the justice he had paid for, but in vain.
In March 2006 Minister Coonan did, however, agree to a government process in which public servants would conduct a commercial assessment. Only two (out of what were then fourteen) COT cases agreed to this process, and I was one of them. The other twelve had no illusions that their claims would be truly independently assessed.
To support my claim that my arbitration had NOT rectified my phone and faxing problems the Hon. David Hawker, then Speaker in the House of Representatives, submitted a statutory declaration by Darren Lewis, the new owner of the business:
After Telstra rewired the business including disconnecting a Telstra installed faulty phone alarm bell, we were informed Telstra had found other problems and believed whoever had installed the wiring had done an unprofessional job. Internal Telstra documentation provided to me by Alan Smith confirmed Telstra themselves had done the wiring. Jenny and I noticed that although our incoming call rate had more than doubled once this wiring had taken place Telstra was still unable to provide a satisfactory reason as to why we were still having problems.
Telstra informed us we had what is commonly known in technical words as a line in lock-up rendering our business phone useless until the fault is fixed. It was then that the local technician informed me that as strange as it might seem he believed that because our business was on optical fibre and so close to the Beach Kiosk (junction box) this could very well be part of the problem ... It was on this note that the technician informed me that although it was a backward step he was going to investigate the possibility of moving the business off the optical fibre and back onto the old copper wiring.
Despite such strong confirmation of my case, Senator Coonan wrote to me on 17 May 2007 regarding her representation to Telstra on my behalf:
Telstra is not prepared to undertake an alternative means of pursing this matter. I also appreciate the depth of feeling regarding the matter and suggests you consider whether any court proceedings may be your ultimate option.
I can only wonder at the power Telstra wields: it seems impregnable.
The sad fate of Darren Lewis
On 28 January 2003, a letter from TIO officer Gillian McKenzie to Telstra states:
“Mr & Mrs Lewis claim in their correspondence attached:
That they purchased the Cape Bridgewater Coastal Camp in December 2001, but since that time have experienced a number of issues in relation to their telephone service, many of which remain unresolved.
That a Telstra technician ‘Mr Tony Watson’ is currently assigned to his case, but appears unwilling to discuss the issues with Mr Lewis due to his contact with the previous camp owner, Mr Alan Smith.” (See Home-Page File No/76 and D-Lewis File 1-I)
Was there a more sinister motive involved in Telstra’s technician refusing to help Darren Lewis with the ongoing phone/fax problems that, nine years before, Telstra and the arbitrator assigned to my case failed to investigate transparently? Why was this Telstra technician still holding a grudge against me in 2002/3 because of something my 1994/95 arbitration should have addressed – i.e., the ongoing phone and facsimile problems that this same Telstra technician was now refusing to help Mr Lewis with, nine years later?
Darren Lewis was so angry with this Telstra employee that he took a number of photos of the actual wiring that ran from Telstra’s pit to his residence and his office (the same office that was mine from 1988).
As part of his plans to renovate the house, Mr Lewis had begun to prepare for a heating system to be installed under the house but, in the process, as he sunk his shovel into a water-soaked area, he accidentally cut into a Telstra cable that was only buried half a shovel deep. Water from an overflow downpipe from the main accommodation block had been running off and collecting over the Telstra cabling that had obviously not been buried deep enough (see the following photos taken by Mr Lewis at the time).
According to the AUSTEL’s records, the Telstra cable was installed in 1991 and, as this photo below shows, it was this faulty installation that led to the cable itself becoming waterlogged. Yet, on 6 April 1995, during my arbitration, when I begged Telstra and the arbitration’s so-called independent technical consultants to run a series of tests to all three of my service lines and inspect the Telstra pit outside the office to ensure that the Customer Access Network (CAN) was up to the proper network standard, my request was refused outright.
Mr Lewis took 22 photos that day, showing just how poor Telstra’s workmanship was when the cable was installed. The open pipe was full of water and water had run down the pipe to the u-bend. After Telstra installed new cabling, Darren advised the TIO, the number of incoming calls increased by more than 100 per cent: this is confirmed by CCAS data.
So what was my arbitration about? Shouldn’t the TIO and the technical consultants he appointed have investigated why I was still registering ongoing telephone problems? It certainly appears the real reason for the way the arbitration was run was to ensure that the Telstra Corporation could continue to conceal all the problems created by their ailing copper wire network, and really, all the arbitrator had to do was grant us an award to compensate us and cover up the rest, exactly as it has been ever since, for the past 20-plus years.
On 1 September 2004, Darren Lewis’ (who purchased my holiday camp in December 2001) wrote to our local MP, David Hawker, stating:
“I must also reiterate my thanks for the pressure you put on Telstra in late 2002 – I believed it was this that finally forced them to re-wire the kiosk at the camp and disconnect the faulty telephone alarm bell which local Telstra employees believed could have been causing some of the problems with incoming calls. Although the incoming calls increased dramatically one the re-wiring had been done, the trauma of the first year we were here has not gone away.”
Telstra waited until 10 months after I had sold the business before they transparently investigated the ongoing telephone and faxing problems I raised during my actual arbitration and for six years after it was declared over. If this isn’t discrimination of the worst possible kind, then what is? Did Telstra make a deal with the arbitrator to ensure that he would only investigate old, historic, anecdotal phone and faxing faults and totally ignore any ongoing problems in the rural network that, if they were proved to exist, would open the floodgates and allow other rural customers to sue Telstra?
When I showed the Hon David Hawker MP that the arbitrator only addressed old issues and none of the issues that continued to affect other Cape Bridgewater customers and me, he arranged a meeting in Parliament House, in Canberra, with Senator Alston, the then-Minister for Communications. The senator’s staff agreed to investigate a 60-plus page report (and attachments) that I provided to them. This report was eventually returned to me – without the attachments – but with a covering letter from a Paul Fletcher, refusing to address the report at all. This bureaucrat is now the Hon Senator Paul Fletcher who, from 2014 to 2016, has been assisting the present Prime Minister of Australia with the problems associated with Telstra’s ailing copper wire network that has been the root cause of the slow rollout of the NBN.
On 26 May 2019, Paul Fletcher became Australia’s Minister for Communications and the Arts (see Media Release: Fletcher 'deeply honoured' to be appointed Minister for Communications, Cybersafety and the Arts).
As the new Minister for Communications, I can only hope The Hon Paul Fletcher will now look at the evidence I provided Senator Alston in September 1995, and the more updated version of June 1996 and the more recent information now exposed on absentjustice.com, especially as numerous senators found our COT arbitrations were not conducted lawfully.
If the TIO had allowed his appointed arbitration technical consultants to properly investigate the COT cases, as they should have, then that corroded copper wire network would have been uncovered and investigated in 1994, instead of in 2012, and the current Telstra shareholders would not be left picking up the tab. No wonder the Hon David Hawker was livid when he discovered that Darren Lewis was still having phone problems in November 2006, as our Main Evidence File No 3 shows.
I provided two photos Darren Lewis took to Senator Len Harris, showing him how deep the cabling was running: 50 meters along a trench less than half a shovel deep.
After seeing these photos, I employed a professional video production company to produce a video showing how the actual wall sockets looked when the casing was removed. I still have copies of that video but, in April 2016, when we tried to transfer it to a CD, we discovered that the quality was not good enough for use on the internet.
Back in December 2002, when the video was produced by Noel Waugh (Video Production of Portland), we sent a copy to the office of the then-Minister for Communications, Senator Richard Alston. Like most bureaucrats working in government departments, those who worked in Senator Alston’s office did not understand the relevance of the video in relation to my claims of ongoing problems and nor did they understand it showed how incompetent some Telstra employees were, particularly in rural Australia. It was, after all, Telstra’s incompetence, coupled with the fact that no one in Telstra really cared about the suffering of telephone customers, especially those with telephone-dependent businesses, that ruined the lives of so many small business operators.
If the arbitrator had conducted my arbitration according to the ambit of the Commercial Arbitration Act 1984 and investigated ALL of my ongoing telephone and faxing claim documents, then Darren and Jenny Lewis (as new owners of my business) would not have suffered. I was forced to sell my business because the TIO and Telstra did not transparently investigate my claims. Both the TIO and Telstra failed to divulge their investigation conducted on 14 January 1998, after my arbitration, showing it was apparent the phone problems would indeed continue.
If the TIO did carry out an in-house investigation into my claims some COT faxes were being illegally intercepted, but came to the conclusion that those faxes did not arrive because they were lost as a direct result of faults in the network – the very network under investigation by the arbitrator – it was deplorable for the TIO to not respond to my interception claims. Deplorable because, either way, regardless of whether missing documents were intercepted and not forwarded on or were lost because of faults in the network, ultimately certain claim documents of relevance to the COT claims were NOT assessed by the arbitration process as the Federal Labor Government when they endorsed our arbitrations.
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