Alan Bates vs. Post Office explores the concept of legal abuse, or legal bullying, which occurs when public official use the law to control and intimidate small business operators, including Post Office sub-contractors. (2024)

Absentjustice.com - Documentary, Fraudulent reporting, deceptive news reporting, and trading with the enemy >&a

Alan Bates vs. Post Office explores the concept of legal abuse, or legal bullying, which occurs when public official use the law to control and intimidate small business operators, including Post Office sub-contractors.

This link > Absent Justice - Documentary Alan-Bates vs Post Office < will lead you to Chapters 1 to 12 of Absent Justice, accompanied by images.

Chapters 1 to 12 below are a version of my manuscript, Absent Justice, accompanied by images. It's a condensed version of Bribery and Corruption—My Story,Warts & All. We're confident that this will form the foundation for our proposed documentary.

INTRODUCTION

There were – breathtaking sea views all the way. I knew this was the place to settle. It would be a fine place to raise my children and the perfect spot to put into place all the ideas I had for a school camp. I could just imagine the various groups of school-children mixing and mingling in the dining room, learning about the ecology of the area as they learned about each other – country kids and city kids, new Aussies and old, little kids and bigger kids – I would be in my element!

On weekends there would be singles groups from all over the State (maybe even from all over the country), mixing together, different age groups, different backgrounds, all getting to know each other and the country-side around the camp.

I signed the purchase contract full of hope and plans for a prosperous future, bringing divergent groups together and giving them a comfortable, happy place to meet, learn and have fun, whatever their age. I had, however, no way of knowing what was to come – fifteen years (and still counting) of heartbreak and trauma; fifteen years of fighting one of the biggest corporations in the country; the end of my marriage and another relationship; ill health and, finally, the loss of my beloved business. Like most tales of human endeavour, I didn’t choose to be a participant in this battle for justice: I was just an ordinary Australian citizen, going about my life, looking forward to running my own small business, looking forward to a peaceful future.

These are simple questions: have you ever had reason to complain about your phone bill? Have you ever discovered that, even though you know you were right beside the phone at a particular time, your friend insisted he had rung and you had not answered? Has anyone ever mentioned in passing how amazed they are at how much time you spend on the phone, when you know your phone hasn’t rung for days (and you have hardly made any outgoing calls)? Have prospective clients abused you for being unprofessional and not answering your phone for days when the phone hasn’t even rung once for the last week?

If you have ever experienced even one of these situations then you will understand why I sometimes feel I have lived through a nightmare — I have experienced all these problems, and more, for more than fifteen years. Unfortunately, I knew nothing of what was ahead of me when I bought my phone-dependent business at Cape Bridgewater, in rural Australia. It wasn’t until much later that I discovered that the business was connected to an antiquated phone exchange which had been installed more than thirty years before, an ancient telephone exchange that was never intended to handle the amount of calls that were already being made by residents and holidaymakers in late 1987, when I arrived to take over the business, nor was it ever intended to handle the increased number of calls that occurred in this holiday village at holiday time.

This story could easily be your story: I know, because this nightmare was my nightmare.

Back in December 1987, when I first fell in love with the small accommodation centre perched high on a hill above a picturesque bay on the south coast of Victoria, Australia, I knew this was a business I could run successfully.

My working life began in 1960 when, at age fifteen, I went to sea as a steward on English passenger/cargo ships. In 1963 I jumped ship and started work in Melbourne as an assistant chef, moving from one elite hotel to another; Hotel London, Australia Hotel, Menzies.

Do you ever wonder if there is any real justice left in the world? Do you ever feel ignored by the large corporations you deal with on a daily basis? In Australia, from the nineteen-eighties into the twenty-first century, a group of small-business people have been battling for justice from Australia’s largest telecommunications carrier — Telstra. This group have become known as the Casualties of Telstra, and are usually referred to as the COTs (or, sometimes, the Cotcases!). The COTs have dared to challenge the ‘quality’ of the service provided by Telstra and refused to give up without receiving proper justice. Every event included in this book can be supported by documented evidence, and the writer – the central person in this story – holds copies of all those documents. The COTs can clearly prove every one of their allegations, so why hasn’t the Australian justice system helped them? Could it be because of the power wielded by the corporation they are challenging?

The Telecommunications Regulator in Australia knows that Telstra has incorrectly billed its customers over many years because of a systemic fault in Telstra’s billing software and, in 1993, the Regulator facilitated a legal arbitration procedure between Telstra and some of the COTs, in order to fix the on-going billing (and other) faults. The arbitrator and Telstra had other ideas however, and during the first of the COT arbitrations they made sure that none of the claimant’s evidence of billing faults was investigated or addressed in any way. The author of this book was that first COT claimant and as the story unfolds you will discover that Telstra is still dealing unethically with the COTs, you will learn how appalling Telstra’s billing system is, and you will become aware of the lack of security within the Telstra Corporation. The players in this conspiracy are: Telstra and a range of Telstra employees and executives; the Telecommunications Industry Ombudsman, who was appointed as the independent administrator of the COT arbitration process (TIO); the Regulator of the Telecommunications Industry (the Regulator), the arbitrator; the independent project manager of the arbitration process; the Minister for Communications and the Shadow Minister; the Australian Federal Police (AFP); the Australian Government and many of its Senators and Members of Parliament; and the innocent members of COT.

This saga raises many questions, important to all Australians, regarding the Australian justice system. Some of those questions are:

Why did the TIO advise Government Ministers that the author’s billing evidence had been properly addressed during his arbitration, when the TIO had previously been told that the billing evidence had not been addressed because the investigating team ran out of time?

Why, during the same arbitration, did the Regulator advise the Government Communications Minister that verification testing on the author’s phone lines had proved that the service ‘exceeded all the required specifications’, when the same Regulator had already written to Telstra, declaring that the opposite was true, and stating that not only was the testing process deficient, but the results DID NOT meet the Regulator’s specifications?

After the Regulator advised Telstra of these serious problems with the testing of the author’s phone lines, why did Telstra then arrange for signed witness statements to be submitted to the arbitration, saying the testing HAD met the Regulator’s specifications?

Why did Telstra write to the TIO during the author’s arbitration, advising that they (Telstra) intended to address the author’s claims of phone bugging (also known as voice monitoring) and then ignore those claims completely? And why was Telstra allowed to get away with ignoring the author’s legitimate, proven claims?

When the TIO discovered that the AFP had documented evidence (including nine audio tapes) of Telstra’s active bugging of the author’s phone calls why did the TIO still allow the arbitrator to ignore this evidence of illegal voice monitoring?

If Telstra was not voice monitoring the author’s phone calls, how did they come by so much information about the author’s movements, private life and business transactions?

When the TIO, in his position as administrator of the arbitration process, clearly confirmed that he would not endorse the rules of the arbitration process unless they included a particularly important clause, how were Telstra allowed to get away with holding an illegal, clandestine meeting (without notifying the COT claimants) to discuss significant changes to that same clause?

After the COT claimants had accepted and signed what they believed was the final version of these legally binding rules for the arbitration process, how could Telstra get away with secretly changing the most important clause in those rules and what made the TIO change his mind to allow these changes without notifying the COT claimants that the rules would then slant the process so it would favour Telstra?

• How was Telstra allowed to get away with withholding important documents from the COT claimants and, when numerous Government Senators voiced their protest at this behaviour by Telstra, calling Telstra’s behaviour ‘unconscionable’, why was no further investigation carried out?
• Why was an official AFP report on the COT arbitrations later buried in the Government archives, not to be opened for thirty years?
• Why would a Senator write to the author threatening a jail term if he disclosed the contents of a particular in-camera Government Hansard report?
• Who has the authority to allow access to Telstra’s customers’ private and business transactions, both voice call and facsimile?
• Why would the Regulator bow to pressure by Telstra and change the Regulator’s COT report conclusions from recording the possibility of ‘some 120,000 COT-type customers’ throughout Australia, in the Telstra system, to only a few hundred COT-type customers and then to only 50?
• Does Telstra wield considerable power over the Australian Government as a whole and if not, why hasn’t the Government appointed an independent investigation into the author’s claims?

The Australian Legal System is no longer affordable for the average citizen so there is little or no protection against the unlawful tactics used by corporations like Telstra who, as detailed in this book, knowingly used falsified and flawed reports, and the tax payer’s money, to hide the true extent of their inefficient telephone network.

By July 2004, the COTs had been locked in battle with Telstra for fifteen and a half years, not only fighting for justice for themselves but also for all the other small businesses who have folded under pressure from Telstra, and for all the other individual Australians who have suffered as a result of Telstra’s indifference to their customers’ problems.

The COTs have been lied to, deceived, ignored and humiliated. They have had their phones cut off. They have had their private and business phone calls listened to and recorded. They have had their movements monitored by Telstra. They have suffered strokes, heart attacks and other stress related illnesses. In some cases they have lost their families and their health and have lost, or come close to losing, their businesses as well. And some of them have simply given up; totally worn down by the fight.

When so much of modern life, both private and business, depends on our communications system, surely everyone should be able to rely on the corporations who provide that system to supply a reliable, efficient service and correct billing methods? Although this doesn’t seem to be too much to ask, this story demonstrates how everyone may well be suffering from incorrect telecommunications charging and explains how difficult it is to run a successful and competitive business if your telephone system is seriously inferior to your competitor’s.

How long were the individual COTs’ phone problems in existence before they finally became aware of them? Have they now all been fixed? How many other Telstra customers have been overcharged over the years? How much longer will Telstra continue to ignore the overcharging in their system? How much profit has Telstra made by overcharging unknown numbers of customers, again and again and again? Have you been overcharged in the past, without being aware of it? Are you being overcharged now? Does Telstra care?

CHAPTER 1

Have you ever had reason to complain about your phone bill?

Have you ever discovered that, even though you know you were right beside the phone at a particular time, your friend insisted he had rung and you had not answered?

Has anyone ever mentioned in passing that they are amazed at how much time you spend on the phone when you know your phone hasn’t rung for days (and you have hardly made any outgoing calls)?

Have prospective clients abused you for being unprofessional and not answering your phone for days when the phone hasn’t even rung once for the last week?

If you have ever experienced only one of these situations then you will understand why I sometimes feel I have lived through a nightmare — I experienced all these problems, and more, for more than ten years. Unfortunately, I knew nothing of what was ahead of me when I bought my phone-dependent business at Cape Bridgewater, in rural Australia. It wasn’t until much later that I discovered that the business was connected to an antiquated phone exchange which had been installed more than 30 years before, and which was designed specifically for what the Australian telecommunications carrier (Telstra) designated as ‘low-call-rate areas’. This ancient telephone exchange was certainly never intended to handle the amount of calls that were already being made by residents and holidaymakers in late 1987 when I arrived to take over the business, nor was it ever intended to handle the increased number of calls that occurred in this holiday village at holiday time.

This story could easily be your story: I know, because this nightmare was my nightmare.

Back in December 1987, when I first fell in love with the small accommodation centre perched high on a hill above a picturesque bay on the south coast of Victoria, Australia, I knew this was a business I could run successfully.

My working life began in 1960 when, at age fifteen, I went to sea as a steward on English passenger/cargo ships. In 1963 I jumped ship and started work in Melbourne as an assistant chef, moving from one elite hotel to another; Hotel London, Australia Hotel, Menzies.

Two years later, aged twenty, I joined the Australian Merchant Navy, starting out on the Princess of Tasmania and, by 1975, I had put in time as a chef on many Australian and overseas cargo ships. Time learning to manage hotels, motels and restaurants around Victoria followed.

By 1979, married to Faye and with two children, I was working freelance, both in the catering industry and on Melbourne tug boats, while I studied for a Hotel/Motel Management Diploma. I had already taken on a Hotel/Motel and pulled it out of receivership so that the owners could sell it, once it was running successfully again.

By 1987, at age forty-four, I had enough experience behind me to know that I had the skills, the expertise and the knowledge to take a simple school camp and turn it into a successful venue for social clubs and family groups as well as schools. Unfortunately, what my wife and I did not know about, and could therefore not be prepared for, were the ensuing problems that would arise because of the ‘elderly’ phone system in the area. This local, unmanned phone exchange had only eight lines but, even back then, in 1987, it was being used by sixty other resident families (one hundred and twenty individuals), as well as the school camp. This meant that if four of the local residents were on the phone at the same time, then there were only four other lines left for calls to come in to the remaining one hundred and sixteen people, and my business, which was connected to this out-dated telephone exchange for the first three and a half years after I moved in: three and a half crucial years in which I had expected to establish the business on a firm ground.

In February 1988, before we moved in, and in preparation for the planned expansion of the camp, I had some two thousand glossy, coloured brochures printed and distributed. We expected the phone to ring off the hook with inquiries. Well, to be a bit more conservative, anyone could expect at least a 1% inquiry rate as a result of this sort of direct marketing, coupled with the personal visits I made to almost one hundred and fifty schools and Shires to extol the virtues of the camp.

By April of 1988 Faye and I were becoming seriously concerned about the telephone system. Some people were beginning to ask accusingly why we never answered our phone and others were suggesting that we should have an answering machine installed to take calls when we were away from the office. Even after we installed a new answering machine, the same complaints continued, coupled now with complaints about incredibly long intervals when the phone was apparently engaged. We both knew very well that the phone had not been engaged for long periods of time and often the phone didn’t ring at all for days on end. These complaints continued for years and the business floundered as a result.

Later, long after our first complaint to Telstra, we discovered that the previous owner of the business had been complaining, unsuccessfully, about these same phone faults long before we purchased the camp. This was clearly proved by a document I received once I began requesting information under Australia’s Freedom of Information Act (FOI) which, for a small fee, allows any citizen to request copies of documents pertaining to themselves or their business, from any Government department or instrumentality. Over the ensuing years I accumulated literally thousands and thousands of FOI documents. The document which alerted me to the previous owner’s troubles indicated that Telstra was aware of the phone faults as far back as 1987, before we moved to Cape Bridgewater and before I lodged my first complaint, which appears in Telstra’s archives on 26^th April 1988.

When Faye and I looked at this business however, we were unaware of the existing phone problems and so we went ahead with the sale of our home in Melbourne and I took early retirement benefits to raise the money to invest in what we expected to be a new and exciting venture.

Understandably, Faye became increasingly frustrated with the complaints we were receiving about the phone system. We began to doubt ourselves. Were we talking too long on the phone? Were we not hearing the phone ring? Had we forgotten to switch on the answering machine?

Call ‘drop-outs’ occurred frequently — the line just went dead. Mostly, if we had a contact number, we had to ring the caller back but sometimes people rang us back. If the caller had not yet given us contact information, and didn’t ring back, we lost that contact.

This new venture was not turning out to be quite as much fun as we had anticipated.

The real extent of the phone problem however, didn’t actually hit us until well into the Christmas period of 1988 when we put on a Christmas dinner for the locals in Cape Bridgewater. During this dinner I mentioned the phone problems we were struggling with. Our next-door-neighbour sympathised; his daughter, ringing from Colac, often complained about how difficult it was to get through to her parents. Another neighbour, once the owner of ‘Tom the Cheap Grocery’ chain, concurred. His comment was “After all, what can you expect from Telstra when we’re in the bush?” He had suffered from similar problems over many years and later happily supplied a written statement to that effect.

As we rolled into the dawn of 1989 we were becoming more and more aware of what was to become our great nightmare. The failing phone system became the straw that broke the camel’s back of our twenty-year marriage. I was beginning to run the business from a position of continual anger. Certainly I couldn’t blame anyone but myself when the gas bottles ran out in the middle of serving a meal for guests; some of the few who had managed to get through on the phone and make a booking.

My advertising campaign didn’t work: I began to feel I hadn’t properly researched the pros and cons before moving to Cape Bridgewater. I was beginning to ask myself what I had done when I asked Faye to leave her friends in Melbourne, to agree to selling the family home just so I could satisfy my blind ambition to run my own business. And so, as bookings dwindled instead of increasing as we had expected, our negativity grew in proportion.

We went touring to South Australia, selling the concept of our camp through the Wimmera area and to numerous schools. Nothing seemed to work as it should have; sure there were occasional inquiries, but they were far from frequent.

The closest local township to the Cape Bridgewater camp was Portland, twenty kilometres away. While there on a shopping expedition one day I realised I had left the meat order list behind. I phoned Faye only to get a Telstra recorded message telling me that the number was not connected! I phoned again. Same message.

Telstra’s fault centre said they would look into the matter and so I went about the rest of the shopping, leaving the meat order to the last. Finally I phoned the camp again; this time the phone was engaged. I decided to buy what I could remember from the meat order list and hope for the best.

Faye was not happy when I returned. The phone had not rung once while I had been away, she said, and how come I left the meat order behind anyway? She thought I was supposed to be such an efficient catering manager. My poor wife’s frustration was aimed straight at me, she didn’t stop to wonder why I couldn’t ring her from Portland.

According to one of the Telstra FOI documents I later received, between 19^th April 1988 and 10^th January 1989 I phoned from the camp to complain about the phone service on nine separate occasions. Add to this the letters of complaint that I wrote, plus my complaint from Portland when the recorded message told me my own phone had been disconnected, and a picture begins to emerge.

CHAPTER 2

Anyone who uses a telephone has at some time reached a recorded voice announcing “The number you are calling is disconnected” or something similar. Within the telecommunications industry these messages are referred to as RVAs or Recorded Voice Announcements. Among the multitude of FOI documents I received in 1994 was a copy of a Telstra internal e-mail dated 26^th September 1993 and numbered A03544, which refers to the need to “have a very basic review of all our RVA messages and how they are applied.” This e-mail goes on to say “... I am sure when we start to scratch around we will find a host of network circ*mstances where inappropriate RVAs are going to line.” Obviously Telstra were aware of RVA problems long before I experienced them.

Another internal Telstra document, number C00757, notes: “As a result of the investigations into difficult customer complaints and associated reports it has become apparent that the present RVA for incorrect numbers requires revision”. This memo refers in particular to the message “The number you have called is not connected or has been changed. Please check the number before calling again. You have not been charged for this call.” This confirms Telstra’s acknowledgement that serious faults existed, particularly since the author of this memo goes on to say “...this message tends to give the caller the impression that the business they are calling has ceased trading, and they should try another trader.”

For a newly established business like ours, so dependent on phone contact with our client base, this was a major disaster, but Telstra didn’t want to know, and certainly were not prepared to do anything about the situation Faye and I found ourselves in.

By mid-1989 our finances had dwindled and the bookings were still not coming in. We decided to sell some of our shares on the stock market. The best price we could get was around $1.60 each for about four thousand shares. Those shares were worth $8.20 each in October 1998.

Where had our savings gone? The sale of our home in Melbourne had raised $140,000 of the $280,000 investment we needed for the camp, leaving a mortgage of a manageable $140,000. I had believed we were set for life: with a little hard work we should be under-way and running well by July 1989 but, here we were, in July 1989, within a mere fifteen months of taking over the business, and we were actually beginning to sell off our assets instead of reducing the mortgage.

I knew our marriage was suffering; my self-esteem was lower than it had ever been; I felt like a total failure. But things got worse, even though I didn’t think they could. Faye fell and broke her leg. Trips back and forward to the hospital added to the stress and, worse, the leg wasn’t setting as it should. A couple of short trips to visit friends in Melbourne cheered Faye up no end and, on the second trip, I used the time to do some marketing of the Camp around Caulfield and Huntingdale, and further into the city. I had decided to give it all I had.

At one point I rang the Camp answering machine, which had a remote access facility — allowing me to check the machine for any recorded calls. At least, it should have allowed me to check it, if I had been able to get through, but I couldn’t. All I could get was the same recorded message “The number you are calling is not connected or has been changed. Please check the number before calling again. You have not been charged for this call.”

I decided not to tell Faye. She didn’t need to be reminded at this stage.

On the way home, just outside Geelong, Faye asked if I had checked for messages at the Camp. A white lie seemed appropriate. We stopped at the next phone box though, and rang home. The line was engaged. Somebody must be leaving a message on the machine! Or were they?

The only message recorded on the machine turned out to be from our friends in Melbourne, a call made the day we left, saying something like “Must have just missed you — see you when you get here.” Why had I received an engaged signal if there were no messages on the machine, other than one from days before? My previous call obviously wouldn’t have registered because I couldn’t get past the Telstra recorded message anyway. How many calls had we lost during the three days that we were away? How many frustrated prospective clients had given up trying to get through because they also reached a recorded message telling them the phone was no longer connected?

Faye was still making regular visits to the hospital and was, of course, not able to participate in any of the work around the place, so found she had nothing to do and plenty of time to think. She discovered more and more reasons to travel away from the business: to her elderly parents, to the hospital, to see friends. Finally the burden of a failing business and the slow and difficult recovery from the broken leg became too much to bear: our marriage ended on 26^th October 1989.

I had already been taking prescribed drugs for stress; that afternoon I added a quantity of Scotch and locked myself in one of the cabins on the property. Faye, understandably, became seriously concerned about my welfare and called the local police who broke into the cabin to ‘save’ me from myself. This was one of the many low points that I was to suffer as I battled to retain my sanity, my business and my standing in the local community. And still Telstra denied that there were any phone problems at Cape Bridgewater.

At this point I need to fill in some details regarding an incident that occurred back in 1967, during the Cultural Revolution in China. At that time many young Australians were supporting the American fight against Communism in Vietnam and this young man was sailing with the Merchant Marines out of Australia. We were headed to China, from Port Albany in Western Australia, with a cargo of wheat, although the Australian Labor Party was against our ship leaving.

During our time in China I briefly ran foul of the Red Guards but, as luck would have it, I still managed to leave with my ship, the MV Hopepeak, believing I had left those troubles behind me. Apparently not. When I took refuge in the cabin at my camp on the afternoon of 26^th October 1989, only to find my refuge attacked by a Police rescue team, I was transported straight back to China in 1967. After some heavy discussions with my wife and my ‘saviours’ who, in my confused state, seemed more like the Red Guard soldiers than anything else, I was taken to hospital — in a straight jacket.

I will be forever grateful to the doctors who confirmed that I wasn’t going ‘nuts’ and who allowed me to return to the camp the following day, accompanied by my mate’s wife, Margaret. I will also be forever grateful to Jack for sending Margaret to ‘bail me out’ so to speak. The fun, however, had just begun.

CHAPTER 3

Margaret and I arrived back at the Camp to be confronted with a disaster area. Faye of course had gone the night before, following advice from various ‘do-gooders’ and welfare people who insisted that she needed to be in a ‘safe house’. Various doors had been left unlocked, meat had been taken from the deep freeze and left on benches; the deep freeze itself was gone. Every time we turned around we found another problem to confront. And, according to my diary, seventy or more students from Monivae Catholic College in Hamilton were due to arrive on the twenty-ninth, two days away. The students were booked in for five days and four nights. Without Margaret’s unfailing assistance I would have been wiped out.

Cleaning and shopping were at the top of the agenda. In my heartbroken state, mourning the end of a twenty-year marriage, the shopping list alone was a mountain I had to climb. What to feed to seventy students plus staff? Finally I got my head around how much meat and dry foods to order but it was already Sunday evening and the Monivae group were due the following day; the first meal they would need was dinner.

Then the hot water service broke down. The staff were not so happy about cold showers! Even so, from then, through to 1994, Monivae College returned to the camp two and sometimes three times a year. Their support throughout this awful period was much appreciated: it kept me trading.

I realised that Margaret was becoming increasingly worried about my mental health when she invited Brother Greg, one of the Monivae teachers, to the house to talk to me. Later I discovered that I had been rambling on in my sleep the night before, much to Margaret’s consternation.

I knew Brother Greg reasonably well and, with Margaret holding my arms and Brother Greg holding my hands, we talked well into the night, working through everything from my experiences in China to the end of twenty years of marriage.

Margaret had been thrown in at the deep end and she carried so much through those six or seven days. Her support was invaluable.

Religion also played a part in bringing me back from the brink to face the task ahead. Many of the women from the church came to help me keep the camp running and to hold me back from tumbling into despair again. But I missed Faye. Like anyone who has separated after so many years, I missed the touch and the caring of another, close human being.

Through all of this, phone problems continued. Around mid-November of 1989, Chris, one of the women from the church, mentioned in passing that I must have forgotten to switch on the answering machine the day before: she’d rung, but the call just rang and rang before finally cutting out. By this time I had already lodged complaints with Telstra’s fault centre in Hamilton and had begun to keep a log of phone faults and customer complaints about the phone: I was recording all complaints I received in an exercise book, together with the names and contact information for each complaint. I also noted the effect these lost calls were having on both the business and on me.

That same day Chris went to the phone in the Kiosk at the camp to phone out. The line was dead. My first thought was “A loose wire somewhere.” and so I removed the cover from the phone connection box to locate this ‘loose wire’. Both Chris and I checked the socket but everything seemed intact. Still the line remained dead.

At this point I had a brainwave. I would try the customer’s coin-operated gold phone in the main dining room. This phone had a normal dial tone and was apparently working OK, so I dialled my office number, only to hear the dreaded voice again: “The number you have called is not connected or has been changed. Please check the number before calling again. You have not been charged for this call.” Of course, I actually had been charged for the call because the coin-operated gold phone certainly did not return my coins.

Five minutes later, after a trip to the main office for more change, I tried ringing again from the gold phone. This time the office phone appeared to be engaged (although, of course, it wasn’t) and the phone happily regurgitated my coins.

I used this testing routine, and others invented along the way, more and more frequently over the coming months, but the situation was beginning to tell on me. Why was this still happening after so many complaints to Telstra. Was no-one paying any attention in there?

CHAPTER 4

Since I was no longer one half of a working husband and wife team, I continually had to dig deep into my almost non-existent financial reserves to cover labour costs, or risk losing everything. With Faye gone I was suffering what is commonly known in the world of finance as a ‘consequential resultant loss’; now I had also had to begin to pay Faye a yearly dividend on her financial investment in the business, even though she was no longer contributing her unpaid labour, plus I had to find the dollars from somewhere to pay staff.

As we headed further into 1990, the future looked grim. The phone faults continued; who knows how many prospective customers were lost because they couldn’t reach me by phone? Because the camp is in a fairly remote area, phone was the only access city people had.

By now the legal vultures were circling. I hadn’t been able to abide by the original financial agreement with Faye and her solicitor was demanding more money for his client. My first payment to her came due and I couldn’t raise the funds to re-finance. I was having trouble meeting my own legal costs, let alone finding extra for Faye. The outlook could never get any bleaker I thought. How wrong I was!

In order to pay some of the mounting debts, I had sold the twenty-two-seater school bus I had originally used to ferry customers around, and purchased a small utility in its place.

Through mutual friends, I had met Karen, a divorcee from Warrnambool, some one hundred kilometres away. At least the little ute meant I could see Karen a couple of times a week and the relationship developed to become quite serious. When Karen heard that Faye’s solicitor was about to wind up my business, forcing me to sell because I couldn’t raise the funds to make any more payments to Faye, Karen put her house up as security for a loan, thereby giving me two years of breathing space.

At about the same time, I again contacted Telstra’s fault centre in Hamilton to find out what, if anything, Telstra was doing about the continuing phone problems at Cape Bridgewater. As usual I got the run-around but I was finally informed that a new exchange, about to be installed at Cape Bridgewater, would alleviate all the problems I had suffered in the past. Some four years later, as a result of an FOI request, I acquired a copy of a three-page, hand-written file note dated 15/8/91, which covers the discussions I had with Telstra regarding these faults. The date doesn’t correlate with my own records because I knew early in 1991 that Telstra were installing a new exchange and I had, in fact, told Karen, early in 1991, that this improvement would solve the phone problems and assure us of a bright future. This file note recorded my complaint on 15^th August 1991, noting (in passing almost) that this had been “… a continuing problem” and even recording that I was “… losing a lot of business”, as well as clearly stating that I had been told that the problem may have been caused by the age of the existing telephone exchange and that the next, new exchange, to be installed shortly, would solve these problems. The file note also confirmed that Telstra would try to get my phones working correctly before then.

CHAPTER 5

My relationship with Karen continued well, as we worked together to attempt to pull the business out of the doldrums. Karen finally sold her house, raising a bit over $80,000, $65,000 of which went directly to pay my legal fees and to pay Faye most of what I owed her. It took me another twelve months to finally pay Faye out. Karen’s name was now officially on the title to my business.

Still very few new bookings were coming in and the camp was now badly in need of some maintenance work. This created a flow-on effect: the business looked sad and bedraggled without the necessary painting and upgrading and so people who passed by were not interested in staying. Because they were not coming to stay there was no money to carry out the repairs and no ‘word of mouth’ recommendations being passed on.

On those rare occasions when a school or club did manage to get through and book in, we had no cash flow and so we couldn’t get credit to buy even the necessary food to feed the clients when they arrived. The operational side of the business began to look even grimmer.

Karen and I began to argue, just as Faye and I had earlier argued. Karen could see her investment fast going down the drain and she began to ask why I had not told her the truth. “It’s now twelve months since I moved here and nothing has changed — the phone faults are no better!”

During all this time I continued to sponsor under-privileged groups to stay at the camp. I arranged sponsored food purchases through the generosity of a number of commercial food outlets and these groups then just used the camp facilities — it didn’t actually cost me anything other than a small amount of electricity and gas. At one point around this time, May 1992, I had organised a charity week for kids from Ballarat and the South West, including Warrnambool, Hamilton and Portland. This group was organised by Sister Maureen Burke, IBVM, Principal of Loreto College in Ballarat and I am sure she would not be offended to know that I think of her as the ‘mother’ of the project.

Much of the organisation for this week, including arrangements regarding food, organising a bus to collect the children, decisions about where to collect the children and discussions about any special needs the children might have, had to be handled over the phone, since Ballarat was a three and a half hour drive from Cape Bridgewater. Of course, Sister Burke had enormous problems trying to contact me because of the phone problems.

Finally, after trying all through one whole week, Monday through to Friday, Sister Burke decided to drive the three and a half hours to make the final arrangements.

At this same time, Karen and I had also been attempting to organise a series of ‘get-away’ type holidays for ‘over-forties’ singles clubs. These plans were not going very successfully: the response to our ads had been very poor (or was it just that no-one could get through on the phone?).

On the Saturday that Sister Burke decided to drive to us, just as she finally arrived at the Camp, Karen took a phone call from a very irate man who wanted some information about the singles weekends. This caller was very angry and quite abusive and Karen took the full brunt of his fury. He couldn’t understand why we were advertising a business but never answered the phone.

Karen burst into tears: this was just the final straw as far as she was concerned. I tried to make a joke of it to relieve the tension by saying something about the problems we have dealing with the public. Now, Karen was then, and still is, a fine ‘horse lady’. She rode in cross-country races and played polo amongst other things; she’s not someone you cross unthinkingly. And she can sure pack a punch! I know, because she almost flattened me that day. Not only did my legs fold under me, but my ego went the same way. And Karen continued to sob. Right at that moment Sister Burke appeared in the office.

I decided that absence was the better part of valour and removed myself, leaving these two fine ladies together. Finally, quite some time later, Sister Burke advised me that she thought Karen should leave Cape Bridgewater. It would be in the best interest of both of us, Sister Burke believed, and she would arrange counselling for Karen back in Warrnambool — here we go again, I thought.

The charity camp went ahead in April 1992; thirty-five children for five nights. It was a great success all round. While she was at the camp I asked Sister Burke to describe the phone faults she experienced in that dreadful week before Karen left. She referred to calls either ringing out or simply getting a dead line — no sound at all. And this happened for an entire week. Later I sent Sister Burke a very early draft copy of this book; after reading it she wrote back, saying “Only I know from personal experience that your story is true, I would find it difficult to believe.”

Twelve months later, in March of 1993, Sister Karen Donnellon, also from Loreto College, also tried to make contact to arrange an annual camp. Sister Donnellon later wrote: “During a one week period in March of this year I attempted to contact Mr Alan Smith at Bridgewater Camp. In that time I tried many times to phone through.

Each time I dialled I was met with a line that was blank. Even after several re-dials there was no response. I then began to vary the times of calling but it made no difference.”

Twelve months had passed and still there was no improvement to the phone system, even with a new exchange installed in Cape Bridgewater.

However, back in May 1992, we could not have known, of course, that the stress created by the faulty phone system would continue for so long.

Karen was hospitalised as a result of this stress, added to the worry that she would lose her investment in my business. She had come to believe that I had lied to her when I reassured her that the phone problems were over. I later learned not to believe anything I was told by Telstra.

After she left the hospital, Karen settled in a rented house in Portland. Without her assistance at the camp, which had, in the past, given me space to travel around, my promotional tours to schools dropped to almost nil. Still I continued to complain to Telstra about the phone faults which seemed to me to be getting worse, not better, since the old exchange had been demolished and replaced. From August 1991 through to May of 1992 more and more complaints of recorded voice announcements came in.

Again I began to question my decisions. Why had this move to Cape Bridgewater been so disastrous? Everyone takes a working phone as a given, but a faulty phone system had now ruined three lives; mine, Faye’s and Karen’s and, indirectly, my two children’s as well

CHAPTER 6

About July of 1992, Karen mentioned a friend who had heard of someone in Melbourne who was complaining about the same phone problems that were crippling my business. Karen said her friend believed this was the proprietor of “The Society” restaurant in Bourke Street, in the centre of the city.

Of course, making phone contact with the restaurant was enormously difficult, but eventually I got through to Sheila Hawkins, who ran the restaurant. We arranged to meet and I travelled to Melbourne.

Sheila was very interested in gathering a group together to tackle Telstra head-on. She already knew of an Ann Garms in Brisbane who ran the Tivoli Theatre Restaurant there, and who was also having serious phone problems.

Armed with this knowledge I rang Ann and, as it happened, Ann was coming to Melbourne the following week. It was arranged that, while she was here, Ann would meet with the General Manager of Consumer Affairs for the Australian Telecommunications Regulator (referred to throughout this book as ‘the Regulator’), and with Sheila.

Sheila, Ann and I had an enthusiastic meeting and Ann mentioned that she knew of at least one other Brisbane business that was in similar trouble with phones — a Japanese car spare-parts company run by Maureen Gillen. Like Ann’s business, Maureen’s business was also trunked off the Fortitude Valley Exchange.

By this time Sheila had contacted Graham Schorer who ran the Golden Courier Service out of North Melbourne. Like the rest of us, Graham had a very bad phone service. Finally our little group gathered together at the Society Restaurant in Bourke St, except for Maureen who couldn’t make the journey from Brisbane.

During the following week I spoke to Sheila a couple of times on her mobile, ringing while she was on her way in to her office. It was Sheila who suggested we call ourselves C.O.T. — the Casualties of Telstra (jokingly, we referred to ourselves as the Cotcases). We were on our way down the path to justice, or so we thought. Unfortunately our battle had only just begun.

I still don’t know how I managed to drag myself through the last few months of 1992, but I did. And now the lies and corporate cover-up perpetrated by Telstra began to be exposed.

In October of 1992, at the Ibis Hotel in Melbourne, the COT group had our first official meeting with Telstra, presenting a united front of small-business telephone users.

The Regulator was now involved, concerned at some of the facts the COT group were unearthing in relation to Telstra. We were seen, not just as a group of hot-heads, out to make trouble, but as a concerned group of small-business people who had been continually squashed and ignored by Telstra. Finally we felt that our claims were being taken seriously and were being seen as valid.

Also at this time, July/August 1992, I lodged the first of many FOI requests for documents to be supplied by Telstra. A letter dated 2^nd July 1992, from Telstra’s management team based at the Warrnambool exchange, stated however that Telstra had ‘no past fault records prior to 27^th June 1991’. It later became quite apparent that documented fault records DID exist in Telstra’s archives, dating back as far as 1987 and continuing for many years after that. Why did Telstra deny the existence of these records and what else could be lurking in these archives, I wonder?

While visiting the camp, a local Telstra technician casually remarked that it was well known that congestion was a problem in my area. His attitude seemed to be that this was something country people just had to learn to cope with. I thought it seemed a very strange way of looking at the problem, particularly since my business was ‘going down the tubes’ fast. Why should I have to put up with a faulty phone service simply because I ran a country business?

During an FOI release in mid-1994 I came across four documents, all related to this congestion problem. A ‘minute’ document, referring to a test carried out in July 1991 and titled “Subject PORTLAND - CAPE BRIDGEWATER PCM HBER” and a document marked as FOI no. A40558 were of particular interest. The ‘minute’ document discusses Telstra’s discovery of eleven thousand errors per hour in telephone traffic in one direction and two hundred and sixteen errors per hour in the other. Interestingly, the same document notes that seventy-two errors per hour is the specified number of acceptable errors.

Then, in document A40558 I discovered that some sections of Telstra had been aware of problems with the phones in my area as far back as the beginning of 1990 but did not pass that information on until October that year. Document A40558 went on to say that the Cape Bridgewater lines were up-graded between July and December the following year, 1991, and that “The Cape Bridgewater customer…” clearly me! “… had documented complaints of call dropouts from 12/1989 to 12/1992 the later date some 7 months …after” the repairs had been carried out at the exchange. Then, even this Telstra employee exhibits his frustration at the delays in repairs in my area by asking why the upgrade didn’t happen until “… a whole year…” after the work specifications had been issued!

Obviously the technicians were uncovering faults and problems with the Cape Bridgewater phone system at least as far back as 1990, probably as a result of my continual badgering of them, but I was being told one thing while Telstra knew another. Here I was, with a business ‘bleeding to death’ and without any treatment available to stop the ‘bleeding’. If the business wasn’t bleeding, it certainly felt as if I was.

The third of these four significant documents was titled “Portland — Cape Bridgewater — RCM System” (an RCM is one of Telstra’s various types of local telephone exchanges) and it reported that: “Initial reports were of a vocal customer at Cape Bridgewater complaining of … cutoffs in one direction. The customer had been transferred off system 1 onto system 2 and 3 on the 24th February ‘93 and had experienced no further problems.”

I must admit that my sense of humour did manage to fight to the surface for a moment when I read this — ‘vocal customer’ indeed! Maybe this is why my voice had lost its customary strength. The point is, of course, the reference to switching the ‘vocal customer’ from system one to systems two and three. Since Telstra were aware of this problem of eleven thousand errors per hour in one direction and two hundred and sixteen per hour in the other direction, when I complained, first in 1988 and again in 1990/91, why didn’t this changeover take place then?

As if this all wasn’t disturbing enough, a letter dated 12^th July 1993, refers to events of 2^nd March 1993, nineteen months after Telstra discovered the massive fault rates recorded above, including ‘error readings’ in the three systems at Cape Bridgewater and noting: “At this stage we had no idea over what period of time these errors had accumulated” and going to say that attempts to test part of the system were not successful, apparently because of missing records. Then, on the second page, is the amazing admission that: “The alarm system on all three RCM systems had not been programmed. This would have prevented any local alarms being extended back to Portland.”

In other words, they didn’t know how long these errors had been accumulating because, from 18^th August 1991, when the new exchange was installed at Cape Bridgewater, the fault alarm system had not been connected up. Since this was an un-manned exchange, this meant that no-one would know when a fault or faults occurred. Except, of course, the poor, defenceless customers. Other FOI documents show that thousands of errors continued to plague my service. It seemed nothing had changed - just more excuses from Telstra’s Corporate Management.

This ‘not connected’ alarm was not discovered until March 1993 but, in September / October of 1992, Telstra senior management had written to me stating that they believed the quality of my telephone service could be guaranteed as up to network standard when, just five kilometres down the road from my business, the exchange continued to accumulate errors with no alarms going off at the ‘manned’ Portland exchange. What a farce!

No wonder my ‘could-have-been-thriving’ business was sinking so fast. It seems like most of the local telephone technicians were oblivious to the continuing call loss due directly to this ‘not connected’ alarm system in the exchange.

Here I was, scratching the bottom of the financial barrel, selling off anything I had left that was saleable to keep going and buy food for the next group that had managed to get through to make a booking, because many schools and other groups do not pay up-front when they make their booking.

Meanwhile, until a group actually paid their bill, I had no money to pay my catering costs or wages. I was now borrowing from friends just to keep the camp running on a day-to-day basis. Karen, with three children to think about, was devastated by her financial losses and had lost all faith in my judgement. I had lost faith in my own judgement by this time too; I had now let down two different partners who had trusted me. Through all of this, of course, the phone faults continued and the useless ‘guarantees’ supplied by Telstra sat on my desk, a continual reminder that they had arrived too late.

The COT group continued to negotiate with the Regulator and Telstra, and this pressure finally produced results: Telstra approached me with a proposal for a compensation payout which was to include a confidentiality agreement to the effect that I would not disclose the value of any settlement which might be forthcoming as a result of this. I signed this agreement on 11^th December 1992 and I have honoured this agreement not to disclose the amount of the payout without prior approval by Telstra.

That same day, in Telstra offices, Telstra’s area general manager and I were involved in a long discussion regarding what Telstra believed I had lost, financially, over the preceding four and a half years since I first complained about the phones. This manager and I were the only people involved in this discussion. I provided her with copies of numerous letters I had received from clients and trades-people, describing their experiences with my phones. I clearly explained how much I had calculated my losses to be. On a number of occasions the manager left me alone to examine documents she had given me. As she left on the first occasion, she explained that she would close the door so I could read in private and she added that, if I needed to discuss anything with my advisors I was free to use the telephone; there was a direct outside line available at all times so I wouldn’t need to speak to an operator within the building. I made use of the phone a couple of times to ring Karen and talk over the offer and we calculated how much she needed to buy herself a relocatable house to set up as her home, thereby at least partly restoring her to a financial position similar to her position before she met me.

The documents provided by the manager were mostly hand-written and included copies of the so-called ‘guarantees’ that I had received. One of the hand-written documents stated that there had only been a single fault, lasting for three weeks, and causing the RVA message to be heard by incoming callers (this was the message stating that my number was not connected). This document also stated that the RVA message probably caused me to lose about 50% of all incoming calls over this three-week period. Other documents referred to one minor fault in the phone exchange at Heywood plus some other minor faults, which may have contributed to some call loss. Telstra agreed to accept responsibility for these ‘minor’ faults, without admitting to anything in writing, if I agreed to their offer.

Naturally I protested. Again I went over the continuing and constant complaints I was getting from customers, and I asked how a few ‘minor’ problems could possibly cause so many difficulties. I had nothing to bargain with however, and the manager simply took a ‘take it or leave it’ position, commenting that this was Telstra’s last offer and advising me that the only other avenue I could follow would be court proceedings. Her final comment was along the lines of ‘Telstra has more time than you have money to fund court proceedings.’ These wonderful customer relations, I believed, left with me no other option and so, finally, and with some regret, I accepted their ‘final offer’.

Later, during 1994, I was provided with a copy of a document which shows that, while out of the meeting room, this same area general manager had made notes regarding our discussions, including a reference to the fact that I had rung my advisors on a number of occasions while she was out of the room. If the phone line I was using was a direct line to the outside, how did she know whether I used it or not? And how could she know who I rang if I did use the phone? I have since, unsuccessfully, asked Telstra to explain this on a number of occasions. This issue has also been raised with the Senate and with the Telecommunications Industry Ombudsman (TIO). So far there has been no satisfactory answer. The questions remains: were my private phone discussions that day listened to by someone and is this how the manager knew exactly how much to offer me, because she had heard the discussions I had with Karen regarding the cost of buying her a relocatable house?

Telstra officials later provided the Australian Federal Police with documents which confirmed that Telstra had listened to my private and business phone conversations (called ‘voice monitoring’) for some time. Was this one of those occasions when Telstra people were listening in?

In 2001 I received some more FOI documents from the Regulator and discovered that the Regulator had written to Telstra during the later arbitration procedure, noting that Telstra had seriously misled me during this settlement because the Regulator believed that the faults had actually lasted a lot longer than I had been officially advised. The Regulator was also concerned that this would have led me to accept the settlement because I believed (falsely as it turned out) that the faults were not as severe as I had thought. Even after Telstra received this advice from the Regulator that they had misled me regarding the severity of two major faults (the RVA fault and the Heywood fault), they still – two years later – provided the arbitrator and the TIO-appointed arbitration technical unit with the same faulty information they had provided to me, with no mention of this letter from the Regulator. The technical unit then accepted Telstra’s word on both faults and included Telstra’s estimation of the ‘severity’ of the faults in the official findings for the arbitrator. So I was duped by Telstra twice – once during my settlement process in 1992 and again during the arbitration in 1994/95!

CHAPTER 7

As I collected FOI documents I began to discover that, over the years, Telstra issued many documents headed ‘Secret’, particularly in relation to the so-called ‘guarantees’ that I received from Telstra. Some of these documents refer to “RVA on congestion” which was, as previously mentioned, the message indicating that my phone had been disconnected and it is also alarming to find that, during 1993, the Regulator confirmed that Telstra’s ‘congestion’ tone was very similar to an engaged tone and, unless you were aware of the difference (and most ordinary people certainly wouldn’t be aware of the difference) callers would believe they were hearing an engaged signal when they were actually hearing a ‘congested’ signal. Because the local Cape Bridgewater exchange was such old technology with so few lines, of course it was congested — it was probably nearly always congested! This meant that it was quite likely that many prospective customers gave up trying to reach me because they believed I had ceased trading. No wonder I didn’t have many new bookings.

In another ‘Secret’ document, (C04007), there is a reference to “... — Mr Smith’s service problems” being “network related and spanned a period of 3 - 4 years.” and, on document C04008, there is another reference – “Overall, Mr Smith’s telephone service had suffered from poor grade of network performance over a period of several years; with some difficulty to detect exchange problems in the last 8 months.” According to the hand-written note at the bottom of C04008, signed by the area general manager I had dealt with before, “These are preparational notes recorded at the time of settlement. Alan Smith was not prepared to provide better substantiation of his claim.” This seems to me to indicate that the writer was quite clear, in her own mind, about the severity of the faults I had suffered and, since she obviously already knew of the “poor grade of network performance” spanning “a period of 3 - 4 years”, how could she possibly have provided the two guarantees that I received three months before this? This is even more astounding because document C04008 also states “with some difficulty to detect exchange problems in the last 8 months.” This means that the ‘difficulty to detect’ the problems dated back at least to April of 1992. As a responsible corporate senior manager, how did this person ever allow the two ‘guarantees’ to leave her office

CHAPTER 8

By this stage of the battle, with two partners lost and my health deteriorating, my business began to suffer even more.

The members of COT continued to draw strength from each other. We had many group discussions as we tried to find a satisfactory way to deal with the deception of Telstra management but we were, after all, simply five small-business people struggling against the might of a huge corporation. Not very good odds!

As we struggled from the end of 1992 to the New Year of 1993 I began to wonder if ‘settling’ with Telstra (via the area general manager) had been such a good idea after all. Nothing had changed. Phone faults continued to run rampant with my attempts to keep the business going. How could this be still continuing? The new telephone exchange was supposed to have rectified all the problems I was suffering.

By this stage my mortgage payments were causing a huge headache. I had been forced to re-finance, incurring more set-up fees, and because I couldn’t afford to maintain the camp buildings properly the place was beginning to look abandoned.

Ann Garms and Graham Schorer had, by now, become ‘comrades in arms’ in this war we were fighting. We wondered if we could ever be in a position to expose Telstra’s unethical corporate strategies and their continued and apparently deliberate mishandling of our complaints. Ann had also begun to suspect that, on the rare occasions that our phones actually worked properly, the lines were being bugged

CHAPTER 9

On 19^th August 1992, about the same time as the COT group was first formed, a Telstra document referred to Ann Garms’s business, The Tivoli Theatre Restaurant, noting, among other things: “Description: Line 1 NDT NRR suspect sabotage ?????” the ‘NRR’ stands to ‘not receiving ring’. At the bottom of the document, even more puzzling comments note that: “… maybe the bug has slipped off” and “Looks like a job for super sleuth Sherlock Kelly?????” These comments will be covered more fully in Chapter Eighteen.

Another document, B00474, also discusses Ann’s business and raises even more questions. It talks about “… 3 particular customers” and goes on to complain about the writer being “… continuously bombarded by these allegations from customers…” which the writer has “… shrugged off”. Who are these three people? Does a reference to “Compass Security” refer to Compass Airlines, who were linked to the same exchange as Ann, in Fortitude Valley? Compass Airlines was a small airline company that tried to break into the system in Australia and finally went bankrupt. The owner of the airline stated that one of the reasons for the company never ‘getting off the ground’ was continual problems with phones, and it was widely speculated in the media at the time that some form of sabotage had been involved. This document certainly doesn’t do anything to dispel that rumour.

Another question that this document raises is why a ‘bug scanning device’ was requested by someone in ‘protective services’?

After reading these two documents it is easy to understand how Ann Garms and I felt every time we used the telephone. Who was listening to us and why?

Graham Schorer was elected as spokesperson for COT and, early in 1993, he met with the chairman of the Regulator. By February/March of that same year, following that meeting, a number of politicians had become interested in our situation. The question remained, would these politicians actually take any action on behalf of small-business people, or would they protect the ‘milking cow’ of the Telstra Corporation?

So the COT group began their push to get the Australian Senate to pay attention to our plight, providing the finance from our already depleted own pockets for travel to and from Canberra, where the seat of power is located.

At this stage I was still suffering from major problems with the phone system although, through some fancy footwork with the banks I had at least managed to stave off a repossession order.

By now I had accumulated more than seventy separate letters of complaint from customers who had been unable to reach me by phone. One of these, dated 5^th February 1993, came from a Mrs Elsie Teer of the Werribee Outreach Centre in Victoria, writing to say that they would have to cancel their booking because of ‘poor membership response’. Mrs Teer also noted that she had tried to ring me over the last five days but that ‘it appears that you don’t answer your phone’.

Graham Schorer, now the official spokesperson for COT and, on one occasion, when I phoned Telstra’s 1100 number to report difficulty in getting through to him on the phone even though he has thirty-seven lines in to his courier business, the person I spoke to at Telstra advised that he would immediately have Mr Schorer’s lines tested. Some months later I came across FOI document K00045. In this document, the same Telstra person has made a hand-written note to the effect that, once it ‘clicked’ that this was a COT member, the service was not tested.

In a second, similar incident, I have an un-numbered FOI document regarding a complaint I lodged about my own phone service, this time to a different Telstra worker. In reference to the exchange his hand-written notes state: “Probably caused by ‘RCM’. No need to investigate, spoke with Bruce, he said not to investigate also.”

Either Telstra had decided that the members of COT were fools or their fault centre knew that the faults we were reporting were common faults which could not easily be rectified, so they had decided to ignore our complaints rather than attempt to fix the problems.

CHAPTER 10

In the first five months of 1993 I received another eleven written complaints. The faults had now plagued my business, unabated, from April 1988 to mid-1993.

Coming into June of 1993 things began to warm up for COT: the then-Shadow Minister for Communications was showing an interest in our claims and a National Party Senator, who obviously had no political gain in mind, became involved also. Even though the National Party Senator was based in Queensland and most of the remaining members of COT were in Victoria, at the other end of the country, he has continued to offer his support.

My local Member of Parliament was another who saw his ‘duty of care’ to his constituents and so answered our call for help. He has continued to go into battle on our behalf for more than fifteen years now.

During political campaigning through June of 1993 both the Opposition Senator and the Senator from the National Party pushed for a Senate Inquiry into our claims and, I have recently been told by an ex-Telstra employee, they were so close to pulling it off that it was not funny. If this Senate Inquiry had got off the ground, heads in Telstra would have rolled but, since this didn’t happen, those same ‘heads’ continue to control Telstra to this day.

While the politicians and Telstra conducted their deals behind closed doors, I continued to lobby the Regulator for assistance and, between February and June of 1993, I provided more and more evidence of incorrect charging on my 1800 free call service and all the other lines servicing my business. Finally the Regulator’s General Manager of Consumer Affairs asked me to record all the short duration calls and RVA’s that were still being charged to my 1800 account and which were also showing up on the testing machine Telstra had installed at the local exchange. Short duration calls were particularly irritating – the phone would ring once and stop or, if we picked it up, we would just find a dead line.

You will see as you get further into this story that there is clear proof of technology, even back in the late 1980s, which allows faxes to be diverted, printed off and redirected without the sender’s knowledge or permission. If faxes can be diverted in this way, then it is not a huge jump to assume that phone calls can also be secretly diverted, although phone calls would have to terminate at the phone they were diverted to, of course. Were all these short duration calls that I was continually receiving actually calls which began to ring at my business and were then caught and diverted to another number? In the early days, it didn’t even occur to me that this could be the explanation. Now that this saga is so much further ‘down the track’ however, it seems to be a very likely scenario. If I am right, what are the ramifications for other telephone subscribers? (This diversion of calls is discussed in more detail later.)

Not only was the Regulator involved in the saga by this time, but we were also dealing with the Commonwealth Ombudsman’s Office as well, so both these organisations were aware that I continued to ask Telstra, under the rules of FOI, to provide me with copies of the data from the testing equipment at the phone exchange that the camp was connected to, for the period of May to July 1993. It is now fifteen years since my first request for this data and all I have so far received is information covering a single six-day period during May of 1993, which I came by accidentally.

CHAPTER 11

As a result of my constant complaints to the Regulator regarding the many phone faults I had suffered, including the incorrect charging, Telstra’s ‘Network Investigations’ department were finally involved and, for the very first time in this saga, Telstra investigators were sent to Cape Bridgewater. At last, or so I thought, I would be able to speak directly to people who knew what they were talking about. At last, or so I thought, I was getting somewhere.

Two members of Telstra's National Network Investigation Division arrived at my office on 3 June 1993, with what later transpired to be a briefcase full of magic tricks. Over the ensuing years this incident has become to be referred to as ‘The Briefcase Saga’! We spent some considerable time ‘dancing around’ my summary of the phone problems, with little input from either of them and with more and more anger and frustration on my part. Finally they prepared to leave and head back to town. My own transport was, by this time, long gone: sold to pay some of my mounting debts, and I also needed to go into town. The Telstra people offered me a lift. Along the way they stopped briefly at the local exchange at Cape Bridgewater where one of them took a tape from one of Telstra’s machines and replaced it with a new tape which he threaded into place.

After spending some time in Portland I got a lift back to Cape Bridgewater with a neighbour. In my office I found that, lo and behold, Aladdin had produced one of his treasures: The Briefcase Saga was about to unfold.

When I found this unidentified briefcase in my office, and discovered it was not locked, I opened it to find out who it belonged to and discovered that it belonged to one of the Telstra technicians. There was no phone number in the case that I could contact him on directly so I was forced to wait until the next morning when I could ring my local exchange.

Imagine how I felt when the first thing I actually saw after opening the briefcase was a file titled “SMITH, CAPE BRIDGEWATER”. After five gruelling years fighting with Telstra and being told various lies along the way, here was possibly the truth, as seen from Telstra’s perspective. Some of the documents in this file were much too technical for me to understand or interpret. Some of those that I could decipher however dated back to the ex-gratia compensation payment I received on 11^th December 1992. Then I froze. I had turned the page to be confronted with the words “Problem 1”.

This document referred to Telstra being aware that the alleged three-week RVA fault in March of 1992 had actually lasted for ‘eight months’, not the three weeks I had been told on the day I accepted the compensation payment. By hiding this information from me Telstra deliberately misled me — this type of deception, under these conditions, is illegal.

Dated 24^th July 1992, and with my phone number in the top right corner, this document refers to my complaint that people ringing me get an RVA “service disconnected” message with the other faults listed, including one dated 22^nd July 1992 from Station Pier in Melbourne and a “similar fault reported” on 17^th March 1992. The final sentence read: “Network investigation should have been brought in as fault has gone on for 8 months.”

The next document in the case that I could decipher was a Telstra minute dated 2^nd July 1992. This document shows that the local Telstra technicians believed my complaints were correct regarding the ‘service disconnected’ RVA on my line. Further, they also believed that the problem “is occurring in increasing numbers as more and more customers are connected ...”

In November 1992, after I had received Telstra’s written guarantees stating that my service was up to network standard, and just before the settlement arranged by Telstra’s area general manager, Telstra again wrote to me insisting that the RVA fault had only lasted for three weeks and adding that it caused an average loss of 50% of calls during that time.

Now, on one hand we have Telstra reports that the RVA fault had only occurred for a single period of three weeks and we have other Telstra documents, including the report I found in this briefcase, reporting that the RVA fault had been in existence for eight months and that the technicians believed I was correct. Which are we to believe?

I sent off a number of Statutory Declarations explaining what I had seen in the briefcase. Later the Regulator was told that they had been given copies of all the information which was originally in the briefcase that was left at my office that day, however that was not correct. Late in 1994, among a late release of FOI documents, I learned that the Regulator had not been provided with some very sensitive material that had been in the briefcase.

After finding this document in 1994, I sent a copy to the TIO’s office with a covering letter explaining how important it was that Telstra had misled the Regulator into believing they had been given everything that had been in the briefcase.

Another letter, dated 27^th August 1993, from Telstra’s Corporate Secretary to me, referring to the briefcase documents states: “Although there is nothing in these documents to cause Telstra any concern in respect of your case, the documents remain Telstra’s property and therefore are confidential to us.

I would appreciate it if you could return any documents from the briefcase still in your possession as soon as possible.”

Telstra’s Corporate Secretary carefully omitted any reference to vital evidence that was withheld during their negotiations with me regarding compensation. The information in this briefcase proved that senior Telstra management had deceived and misled me during these negotiations and, at the same time, provided letters stating that the phone system to my business was up to network standard when the information in the briefcase clearly proved that it was certainly nowhere near ‘up to standard’.

On 17^th June 1993 the General Manager of Telstra Commercial, Victoria/Tasmania, wrote a confidential internal memo to the Manager of Network Investigations, clearly indicating that not only was Telstra’s area general manager fully aware, at the time of my settlement on 11^th December 1992, that she was providing me with incorrect information, but the General Manager, Commercial Victoria/Tasmania was also aware of this deception — a deception which seriously influenced my judgement of the situation.

Misleading and deceptive conduct such as this, in a commercial settlement such as mine, is a direct contravention of the Australian Trade Practices Act, but this issue is yet another which has never been addressed by Telstra. Even more alarming, the arbitrator handed down his award on 11^th May 1995 without questioning Telstra’s unethical behaviour, even though I raised this issue in my claim documents, pointing out that Telstra had knowingly deceived me at the previous settlement meeting, thereby placing me at a commercial disadvantage.

In another letter dated 8^th June 1993, the Regulator explained to Telstra that I had complained of continuing phone faults, even after the ‘settlement’. This letter goes on to say: “Further, he claims that the Telstra documents contain network investigation findings which are distinctly different from the advice which Telstra has given to the customers concerned.

In summary, these allegations, if true, would suggest that in the context of the settlement Mr Smith was provided with a misleading description of the situation as the basis for making his decision. They would also suggest that the other complainants identified in the folders have knowingly been provided with inaccurate information.

I ask for your urgent comment on these allegations. You are asked to immediately provide the Regulator with a copy of all the documentation which was apparently inadvertently left at Mr Smith’s premises for its inspection. This, together with your comment, will enable me to arrive at an appropriate recommendation for the Regulator’s consideration of any action it should take.

As to Mr Smith’s claimed continuing service difficulties, please provide a statement as to whether Telstra believes that Mr Smith has been provided with a telephone service of normal network standard since the settlement. If not, you are asked to detail the problems which Telstra knows to exist, indicate how far beyond network standards they are and identify the cause/causes of these problems.

In light of Mr Smith’s claims of continuing service difficulties, I will be seeking to determine with you a mechanism which will allow an objective measurement of any such difficulties to be made.”

It seems that the Regulator’s concerns regarding the sensitive information I had originally found in this briefcase was warranted!

CHAPTER 12

By April 1993, the number of articles that had appeared in my local newspaper and interstate gossip about the COT group was beginning to grow. As a result of this the Channel Nine ‘Sixty Minutes’ program attempted to contact me by fax. They had been battling with the phone system too! In fact, on my 1800 line they had only managed to reach a recorded message stating that 1800 “… was not available” and on my direct line, they got a continual engaged signal. A complaint to Telstra brought the announcement that the lines to Cape Bridgewater were congested. Surprise, surprise!

By June of 1993, the public were becoming interested in what they were hearing about our battle.

At the Camp in Cape Bridgewater, we acquired a logo especially for the over-forties singles club which we were calling “Country Get-A-Ways” and I hit the road with a vengeance, marketing a range of different weekend holidays. We had organised an outdoor canoe weekend, a walking and river cruise along the Glenelg River and a Saturday Dress-up Dinner Dance with a disco as well as a trip to the Coonawarra Wineries in South Australia and a Saturday morning shopping tour to Mt Gambier, also in South Australia. This meant we were able to market the holidays in both Victoria and South Australia.

A special feature in the Melbourne Age Newspaper gave the project a great write-up and I began to feel things were finally looking up for the camp. My spirits rose, at least temporarily. Then another plummet into despair: on 26^th October a fax arrived from a relative of the journalist who had written the Age feature, noting: “Alan, I have been trying to call you since midday. I have rung seven times to get an engaged signal. It is now 2.45 pm.”

These attempts had been made on my 1800 free-call line. My spirits sank right back down again.

Later in this saga I checked this fax against Telstra’s own data for that day. Telstra’s records show one call at 12:01, lasting for six minutes and another call at 12:18, lasting for eight minutes. There were no incoming calls at all between 12.30 and 2.44 that day. Where had these calls been going? I was devastated but I decided not to let the bastards get me down. Their continuing lies and assertions that they had found no faults on my service line must be exposed.

So, I stepped up the marketing of the camp and the singles-club weekends, calling on numerous recognised social clubs around the Melbourne metropolitan area and talking personally to the people in charge. Over the next few weeks I spoke to the Phoenix Social Club in Camberwell, the Australian Social Centre in Hartwell, Frenze-In-Deed in Mont Albert and Capers in Knox City. I also visited other singles organisations in Ballarat and Warrnambool, large country centres in Victoria.

Further newspaper advertising followed, with ads placed with the Leader Newspaper group in Melbourne. This local newspaper group covers twenty-three different metropolitan areas around Melbourne. Ads also went into the local newspapers for a number of large regional centres around Victoria and South Australia, including the Geelong Advertiser, the Warrnambool Standard, the Ballarat Courier News, the Horsham Wimmera Times, the Colac Local News, the Mt Gambier-Border Watch etc.

Complaints about the phones continued. People had enormous trouble getting through to the camp and, although some obviously persevered, God knows how many simply gave up trying.

I received two letters from the TIO, both indicating a less-than-enthusiastic response from Telstra when the Deputy TIO attempted to extract from them an explanation of entries missing from the White Pages telephone directory in 1993. These entries were specifically for my Country Get-a-way Singles Club holidays and I went ahead with an extensive advertising campaign, unaware that the entries were not in the telephone books. I now wonder if there is more to these missing entries than meets the eye because, if there was a simple, above-board reason for my advertisem*nts being left out of eighteen major phone directories, then why has Telstra never offered an explanation? As the Deputy TIO says in his letter of 29^th March 1996, he believed his office would simply “be flogging a dead horse trying to extract more” from Telstra on this matter.

One Saturday evening a couple of Scotches left me in tears of complete frustration. I knew I was easily capable of running the camp as I pictured it, but I was trapped, like a rabbit in car headlights, with no way to turn. It was a vicious merry-go-round. Without customers I would go broke quickly and the customers couldn’t reach me because the phones didn’t work. Right then Graham Schorer, the COT spokesperson, rang. He kept urging me to hang in there, convinced that we would win out in the end. Later, even Ann Garms, who is usually so strong and determined, broke down over the phone, crying that it was impossible to go on. This time it was my turn to be strong; “Hang in there, Ann.” I told her, “We’ll beat the bastards yet, you’ll see.”

The process became even more of a roller-coaster ride. My spirits rose once I had hosted a few successful Country-Get-Aways in the following few months but it was only a few, not nearly as many as I knew should have been responding to my advertising and marketing and, inevitably, my spirits sank again as bookings dwindled.

Finally, in desperation, I remembered a clinical psychologist the COT members had contacted back in 1992, when we were first formalising the group. At the time this psychologist had written a report regarding his opinion of our individual psychological conditions, noting the breakdown in our psychological defences and referring to the excessive and prolonged pressures we were being forced to endure and noting:

“All of these clients have been subjected to persistent environmental stress as a result of constant pressure in their business and erratic patterns of change in the functioning of their telephones which were essential to the success of their businesses.”

Now it was May 1993 and nothing had changed. I rang the psychologist’s office, looking for support. My conversation with his office was interrupted three times by phone faults. Later I received a letter from his office, saying: “I am writing to you to confirm details of telephone conversation difficulties experienced between this office and our residence mid-morning this day, 5 May 1993. At approximately 11.30 am today Mr Alan Smith telephoned this office requesting to speak with (the psychologist). (The psychologist) was not available to take his call. During this time the telephone cut out three times. Each time Mr Smith telephoned back to continue the call.”

Between May and October of 1993 I received many letters from schools, clubs and singles clubs, each one writing of the difficulties they had experienced trying to contact the camp by phone. The executive officer of the Camping Association of Victoria, wrote on 6^th May 1993 to say that ten thousand copies of their ‘Resource Guide’, in which I had advertised, had been direct mailed to schools and given away. Most of the other advertisers with ads similar to mine, he went on to say, had experienced an increase in inquiries and bookings after the distribution of these books and so it was clear to him that the “malfunction of your phone system effectively deprived you of similar gains in business.” He also noted that he had himself received complaints from people who had been unable to phone my camp. They were asking him why I was not answering my phone. All in all, during this period, I received thirty-six letters from different individuals as well more than forty other complaints from people who had tried, unsuccessfully, to respond to my advertisem*nts.

The Hadden & District Community House wrote in April 1993:

“… problems with contacting you by phone. Several times I have dialled (my phone number) and received no response — dead line. I have also experienced similar problems on your 008 number. Our youth worker, experienced similar problems while organising our last year’s family camp, over a six month period during 1991/1992.”

In August of 1993 the Chilean Social Club wrote:

“I tried to ring you in order to confirm our stay at your camp site. I found it impossible to get through. I tried to ring later but encountered the same signal on the 10th of August around 7 - 8.30 pm. I believe you have a problem with the exchange and strongly advise you contact Telstra.Do you remember the same problem happened in April and May of this year? I apologise but I have made arrangements with another camp.”

As more and more letters like this arrived in my office I became convinced that Telstra senior executives were hiding the true facts of the problems at the Cape Bridgewater exchange. Surely they must have been aware by now that I was not inventing the problems I was complaining about?

The Regulator’s General Manager of Consumer Affairs, was becoming more concerned at the evidence COT members were producing; evidence of continuing complaints like these, as well as evidence of incorrect charging. These two problems — people not being able to get through and calls being charged incorrectly, come together in a note from a lady in Croydon who wrote regarding her problems getting through on 22^nd May 1993 and explained how she continually reached a recorded voice announcement saying that my phone had been disconnected. She commented that she thought this message was ‘quite strange’. My Telstra 008 account for that day showed a number of very short calls. Apparently I was being charged for RVA messages, short duration and faults that Telstra calls ‘post dialling delay faults’!

I told the Regulator of my suspicions that COT members’ phone calls were being intercepted by Telstra and some of the short-duration calls I had been billed for, but which I had not answered, were actually incoming calls that were being diverted to an unknown location.

The Regulator did not agree with these suspicions and yet, in an in-confidence, internal Telstra memo dated 25^th November 1993, on the subject of short duration calls on my phone lines, Telstra stated: “Mr Smith is obviously well aware that customer premises equipment (CPE) is a significant source/cause of charging and billing disputes, particularly those involving short calls which the customer believes were unsuccessful and should not be charged. Telephone answering machines, facsimiles and call diverters typically are at the centre of these disputes.”

I have evidence which proves that neither my answering machine nor my fax machine could have answered many of these short duration calls. This leaves call diverters as the only ‘culprit’ possible and, since I had not authorised any call diversion on any of my lines, this raises the question: Who then had authorised the diversion of at least some of my incoming calls?

The true level of short duration and post dialling delay faults were well known to Telstra as early as October 1993 but they chose to hide the problems and continue to collect revenue from their customers (you and me), regardless of the level of customer complaints. In some cases Telstra forced customers to pay incorrect accounts by threatening to disconnect the customer’s phone lines, even though the customer complaints may well have been quite real.

A Telstra FOI document (H36291), dated 11^th October 1993, states

“I am receiving a disturbing number of instances where the 1800 prefix ‘does not work’ in the network. Given we are now part way through a major (direct mail) National campaign launching freecall 1800 statewide, I need to know the extent of the problem of missed areas across the country.”

Another FOI document dated 1^st November the same year, and also from Telstra (H36293), goes even further:

“All administration groups are being inundated with complaints from customers who have advertised their numbers as 1800 but their customers are simply unable to get through to them. I have spoken to our fault staff at Waverley who are also being inundated with the same complaints.”

An even more alarming Telstra FOI document (H36178) indicates that, even while being fully aware that they were promoting a faulty service which would not provide the service it was advertising as providing, Telstra continued to charge their customers for calls that Telstra knew were not connecting correctly, where the caller reached a dead line, thought they had dialled incorrectly and hung up, but the charge still registered at the other end – on the 1800 customer’s account. In this document, H36178, Telstra actually discusses concerns: “…that the matter requires fixing at a National level, not just on a fault by fault basis” and notes that someone: “… also raises the question whether we should be actively promoting 1800 in the circ*mstances.”

CHAPTER 13

Later in 1993 a lady from Daylesford Community House contacted me to let me know that she had tried unsuccessfully to phone me on 17^th August 1993; first at 5.17 pm and again at 5.18, 5.19 and 5.20. Each time she phoned she reached a dead line. After the fourth unsuccessful attempt she had reported the fault to Telstra’s Fault Centre in Bendigo on 1100. She spoke to an operator who identified herself as Tina. Tina then rang my 008 number and she couldn’t get through either.

Telstra’s hand-written memo, dated 17^th August 1993, reports Tina’s attempt to contact me and refers to the complaint from the Community House to 1100, recording the times they had tried to get through to my phone.

A copy of my itemised 1800 account (R11519) for 17^th August 1993 clearly shows that I was charged for all four of these calls, even though the customer never reached me. All this information was duly passed to the Regulator.

After the Community House had reported their experience to the fault centre, Telstra began to take a pro-active approach and arranged for tests to be carried out on my line from a number of different locations around Victoria and New South Wales. Telstra then notified the Regulator that some one hundred test calls would take place on 18^th August 1998 to my 1800 free-call service.

That morning I answered two calls from Telstra commercial, one lasting six minutes and another lasting eleven minutes — these two occurred first thing in the morning as they set up ready for more test calls throughout the day. Over the rest of that day however, I only answered eight or nine calls in all. Certainly I was stressed by then, possibly I wasn’t thinking entirely clearly, but even so I am sure I would remember if I had answered one hundred calls, or even twenty or thirty for that matter.

Some days later my 1800 phone account arrived and, lo and behold, something like sixty short duration calls had been charged to my service! I queried this with Telstra Commercial, asking how I could be charged for so many calls which did not connect and which I certainly did not answer. Telstra wrote to the Regulator on 8^th November 1993, noting that I had queried the accuracy of the data regarding sixty-seven calls made in a fifty-four minute period. The Regulator went on to say that I did not believe I had answered all the calls I was charged for. Finally they reported that all the evidence indicated that ‘someone at the premises answered the calls’. Although the Regulator asked for the name of the Telstra employee who made these so-called successful calls to my business, and I have also asked for this information, so far Telstra have refused to identify the employee.

The phone faults had started a snowball rolling down the mountain. The lack of customers of course meant a lack of income, my financial situation became worse and worse and, with my marriage over as well, my health suffered more and more. Friends began to notice the change in my personality and those few clients who did manage to make contact were also commenting on my apparent ill-health.

The group from the Daylesford Neighbourhood House finally arrived for their holiday in January 1994. Later, two letters arrived from members of this group, complaining that my customer coin-operated gold phone service was most unsatisfactory. They wrote that the phone was taking money ‘under false pretences’ and not connecting long enough for the caller to properly complete their calls. Both wrote that the line kept ‘going dead’ and they both supplied their names and addresses.

Late in 1994 I was supplied with some documents in response to one of my FOI requests. This batch included two documents which are of particular interest in relation to the Telstra test calls of 18^th August 1993. These documents, numbered K03433 and K03434, showed forty-four test calls, numbered from eight to sixty-three, to the Cape Bridgewater exchange, with some numbers missing. Since, as I have previously said, I believe I only answered eight or nine of the test calls, and only nine of the calls recorded on these two documents had tick or arrow marks beside them, I have continually asked Telstra what the marked calls represent but I have not received any response to my questions. Surely this can’t be only coincidence?

Document K03434 includes a note stating:

“Test calls unsuccessful. Did not hear STD pips on any calls to test no. The TCTDI would not work correctly on the CWBEX (Cape Bridgewater Exchange). I gave up tests.”

It seems obvious that this remark refers to the test calls that were to have been made to my phone on that day.

Later on in this story I explain how these 1800 post-dialling, short-duration calls were never investigated or addressed in the report supplied to my arbitrator by the TIO-appointed technical unit, even though the Regulator continued to ask Telstra about these same faults throughout my arbitration in 1994. In August of 1996 – three years later – the Regulator was still asking Telstra what they were doing about short duration faults. Meanwhile Telstra continued to charge me for calls they knew were not getting through.

Another FOI document received in this batch, numbered A03254, was a copy of a Telstra e-mail dated 28^th September 1993. This e-mail referred, in part, to a recognition of the

“... duress that the COT members are suffering” and goes on to say: “... perhaps I am getting too legalistic and defensive but we can’t afford to let anything get away. However, our best option is still to force these cases down a legal structured path.”

Also curious is FOI document C04094. This indicates further that Telstra’s management team was trying to force the COT members into a court situation, even though they were fully aware that their highly paid lawyers would eat us alive. The aim seemed to be to ‘hang us out to dry’ as an example to others who might complain about Telstra services in the future.

On 21^st April 1993, a document headed “COT cases latest” was forwarded from one worker to another within Telstra. This document confirms the COT members’ growing belief that Telstra was planning to use our claims and possible court case to stop any further claims against Telstra, ever. The author of this document stated:

“…thank you for your swift and eloquent reply. I disagree with raising the issue of the courts. That carries an implied threat not only to COT cases but to all customers that they’ll end up as lawyer fodder. Certainly that can be a message to give face to face with customers and to hold in reserve if the complainants remain vexatious.....”

Clearly, Telstra management intended to decide when claimants were becoming ‘vexatious’ and that this would be the time they would threaten the claimants with legal action. And this decision comes from a corporation which is continually held up to be a benevolent organisation, acting for the good of the Australian public while, behind closed doors, Telstra management intended to turn legitimate claimants into ‘lawyer fodder’ if they persisted with their claims.

During September or October of 1993 I had advised the Regulator’s General Manager for Consumer Affairs, that Telstra’s General Manager (Commercial) had instructed me to direct all my future phone complaints, in writing, to their outside solicitors.

Much, much later I was told that this strategy was intended to wear me out or force me to hire my own legal practitioner to deal with Telstra’s solicitors. Sometimes I waited up to two weeks for a response from Telstra’s solicitors and the time and effort involved in documenting all the on-going faults, while still trying to run a failing business, certainly worked in Telstra’s favour. Somehow I struggled to keep focussed on what the COT group were pushing for: a Senate inquiry into Telstra’s unethical treatment of our small group of legitimate claimants.

A letter of support from a worker at D Madden & Co of Warrnambool (Lawyers), dated 10^th November 1993, helped me feel less alone and confirmed my decision to fight on. Telstra had to respond regarding their treatment of customers’ complaints: they must be stopped from continuing their bullying tactics. This letter from Madden’s says, in part: “I am writing in reference to the proposed Senate Committee Investigation into Telstra.

As you are aware, I am employed as a telephonist with a large legal firm in Warrnambool. In the course of my employment, and particularly during the months of July and August this year, numerous service faults have been brought to my attention. These problems include:

1. Calls being disconnected during conversation.

2. Recorded messages informing Melbourne clients and callers that the number has been disconnected when the correct number was dialled.

3. An engaged signal received by callers despite a number of lines being available.

4. Complaints from callers that the line has rung out when no ringing tone has been received at the number dialled.

Our firm duly contacted Telstra on a number of occasions in an effort to have these fault rectified. However, Telstra technicians were constantly unable to identify the numerous problems and subsequently remedy our complaints.”

The letter goes on to confirm support for the call for a Senate Inquiry into problems within Telstra’s network and to advise that my name and address had been passed to Madden’s by my local Member of Parliament, with regard to a public meeting we were then organising.

Like previous documents relating to phone problems in the area, I passed this on to Telstra’s solicitors, together with more information showing incorrect charging on phone accounts. I then wrote to the solicitors on 12^th November1993:

“On trying to fax you the information you received this morning I had quite some difficulty in getting all the pages through at a given time. Note the page errors which I have enclosed.”

By this stage the Regulator was becoming more than a little concerned at Telstra’s approach to our complaints, particularly their continual use of outside solicitors. In fact, during October 1993, while the Regulator was negotiating with Telstra for a commercial settlement proposal to be put in place for the COT members, the Regulator’s chairman made it clear to Telstra’s Commercial division that the Regulator would not be happy if Telstra’s solicitors were to be used in future COT matters. This request fell on deaf ears however and, through to 28^th January 1994, Telstra continued to insist that I register my complaints through their Solicitors.

Later, when Telstra submitted their defence of my arbitration, I learned that Telstra’s solicitors also acted as Telstra’s defence counsel. By this time I was able to provide the arbitrator with clear proof that Telstra had provided incorrect written statements to the Regulator and to me, regarding incidents that occurred between January and August of 1993.

On 28^th January 1994, during my arbitration, I received a letter from Telstra’s solicitors in response to a letter I had written, challenging Telstra for incorrectly charging me for non-connected short duration calls. Telstra’s solicitors wrote, in response to one part of my letter, that “…customers will be charged only for calls which are answered” and “… unanswered calls are not charged”.

In the next paragraph they refer to the malicious-call-trace equipment which Telstra placed on my service, without my knowledge, and which caused a lock-up on my line after each successful call was answered. This lock-up occurred after I had hung up the phone and meant that no further call could come in to my phone for the following ninety seconds.

At the beginning of this chapter, I relate an incident with the Daylesford Community House and explain how the line was continually dead when they rang my 1800 number four times on 17^th August 1993, and how, even so, I was charged for these four calls, all in the space of a single twenty-eight-second period. Since the malicious-call tracing equipment was not removed from my phone line until 19^th August 1993, how could the Community House have been connected four times in such a short period of time? It is clear from other FOI documents, and has been supported by Telstra technical consultants, that no call could have connected under these circ*mstances at any time between 26^th May and 19^th August 1993, while the call tracing equipment was still connected. So, where were these calls diverted to?

Another incident, described previously, and related to test calls supposedly carried out by Telstra, raises more, similar questions. How could sixty-seven test calls all be answered in a fifty-four minute period when my 1800 account shows that some of these test calls connected within a single thirty-second period? In fact, some calls came through at the rate of as many as three in a single sixty-second period. Again, where were these calls diverted to? If they weren’t diverted, were they the same post-dialling and short duration faults that were still being diverted at my business as late as December 1997, four years after Telstra first acknowledged that the fault actually existed? Whatever the cause of these faults, I was still being charged for calls that never reached my business.

CHAPTER 14

My local Member of Parliament, part of the Liberal Coalition, wrote on 9^th December 1993, to congratulate me for my “persistence to bring about improvements to Telstra’s country services” and went on to say that he regretted “that it was at such a high personal cost” and, the then-Minister for Communications in the Labor Government, also wrote, saying:

“Let me say that the Government is most concerned at allegations that Telstra has not been maintaining telecommunications service quality at appropriate levels. I accept that in a number of cases, including Mr Smith’s there has been great personal and financial distress. This is of great concern to me and a full investigation of the facts is clearly warranted.”

Negotiations continued as we lobbied for a commercial assessment (a binding agreement, decided without legal intervention) for the members of COT, an assessment that we hoped would look at the financial losses we had all suffered because of the faulty phone systems that we had to put up with. At the same time it seemed that there was a strong possibility that a Senate Inquiry would be set up. Our hopes began to rise again.

Two Senators in particular were pushing hard for a Senate Inquiry at this time, the then-Shadow Minister for Communications, (who went on to become the Minister for Communications) and the National Party Senator mentioned earlier. Senate Hansard (the daily verbatim printed reports of Australian parliamentary debates) records show that these Senators were assured by Telstra that the four main COT members would have their claims assessed commercially, in a specially designed, non-legalistic settlement proposal, to be called the Fast Track Settlement Proposal (FTSP).

The decision for this FTSP was reached because all four main members of COT, Maureen Gillen, Ann Garms, Graham Schorer and I, had suffered considerable consequential and resultant losses because of our many years of ongoing attempts to bring the matters to the attention of the Government and because of our ongoing attempts and constant work aimed at finding natural justice through Telstra, on top of the losses caused directly by faulty phones.

With the sanction of the then-Labor Government, the Regulator arranged for an international expert to be brought to Australia to have a look at our claims. Bell Canada International Inc (BCI), technical telecommunications specialists from Ottawa, Canada, arrived to run tests on a number of the phones connected to the businesses belonging to various COT members.

These tests were allegedly carried out on my phone service between 4^th and 9^th November 1993, a period when my phone faults were particularly troublesome, as the Regulator was well aware.

At the conclusion of these tests, BCI produced a report. Unfortunately this report was not acceptable to the Australian Regulator, since the BCI technicians had not tested the actual line between my business and the nearest connection to the local exchange (called the Customer Access Network or CAN). FOI documents numbered A00404 to A00407 show that Telstra’s Commercial General Manager for Australia responded by letter to the Regulator on 15^th December 1993, saying:

“The conclusion to be reasonably made from these events is that the Regulator publicly judges the BCI report “Fails to live up to the expectations raised by the terms of reference.”

Reasonable inferences might be drawn about deficiencies in the competence, professional standing and integrity of BCI, and the competence and integrity of Telstra and myself in the conduct of the study and representation of the findings.”

In this letter, Telstra goes on to discuss the COT Settlement Proposal (FTSP), saying: “Considering the above circ*mstances, Telstra cannot agree to attach a copy of the Regulator’s letter of 9 December to the BCI report if the latter is made available to the assessor’s nominated for the COT cases.”

A hand-written note at the bottom of the last page of this letter states: “There is a multitude of inaccuracies”. This note is linked by an arrow to a reference to a letter dated 9^th December 1993, from the Regulator to Telstra. Some time later I received a copy of this 9^th December letter, under FOI (numbered K47052 to K47054). The summary, at the end of this letter, stated:

“Having regard to the above, I am of the opinion that the BCI report should not be made available to the Assessor(s) nominated for the COT cases without a copy of this letter being attached to it.

It is quite clear however, from information I received in response to my FOI request of 18^th October 1995, that Telstra did not supply a copy of the Regulator’s letter to my arbitrator. This issue has not been investigated either by the Minister for Communication or by the TIO, even though they are both fully aware that Telstra used the BCI report to support their defence of my claims and even though the arbitrator acknowledged in his 11^th May 1995 award that he had accepted the BCI report into my arbitration.

One week after Telstra wrote this letter to the Regulator, a Telstra e-mail (FOI document A00354), discusses a new tariff filing that was to be lodged on the 20^th December 1993. This new tariff was to include new performance parameters, one of which committed Telstra to a 98% call completion at the individual customer level. This e-mail also referred to experiences with customer disputes and the Bell Canada International Study, commenting that: “ ... this is a cause for concern - Telstra will not meet this 98% figure in many exchanges around Australia, particularly in country areas.”

Apparently Telstra were quite aware that their rural subscribers were not being properly looked after.

FOI document A09392 raises even more concerns regarding problems with rural exchanges. The writer of this document states:

“Parameters for Cape Bridgewater RCM have been obtained but I don’t believe them — I am attempting to check them — some of the people supplying this information live in “old Telecom”.

Clearly the parameters for Cape Bridgewater exchange posed some sort of problem for Telstra: could this have been the reason for Telstra not supplying this information in response to my FOI requests?

It is difficult to describe the anguish suffered by the four COT complainants as we continued to do battle with Telstra. This was a corporation entirely government owned at the time, an organisation that Australians were being exhorted to trust, with radio and television advertisem*nts bombarding us night and day. How could we have been treated so badly?

At about this same time, Telstra commissioned the international audit company of Coopers and Lybrand to report on Telstra’s fault handling procedures, particularly when they were called on to deal with complaints like the issues raised by the COT members. Coopers & Lybrand’s report indicates that they were shocked, to say the least, at the evidence supplied by the COT cases. Telstra’s unethical management of our complaints, over so many years, caused some serious concern to Coopers. What followed Telstra’s first reading of the Coopers report was indicative of Telstra management’s attitude to their subscribers.

On 9^th November 1993, the Group Managing Director of Telstra wrote to another Telstra manager, saying:

“I believe that it should be pointed out to Coopers and Lybrand that unless this report is withdrawn and revised, their future in relation to Telstra may be irreparably damaged.”

These are strong words from the most senior manager below the CEO of the largest telecommunications corporation in the country; a corporation which, at that time, had a monopoly hold on the industry in Australia. This was not an empty threat but it seemed not to have the desired effect because Coopers tabled their report in the Senate and released it into the public domain with, as far as I can tell, no significant changes.

The following points have been taken directly from Coopers report.

2.20 Some customers were put under a degree of pressure to agree to sign settlements which, in our view, goes beyond normal accepted fair commercial practices.

2.22 Telstra placed an unreasonable burden on difficult network fault cases to provide evidence to substantiate claims where all telephone fault information that could reasonably determine loss should have been held by Telstra.

(2) Fault handling procedures were deficient in terms of escalation criteria and procedures, and there is evidence that in some cases at least, this delayed resolution of these cases.

3.5 We could find no evidence that faults discovered by Telstra staff which could affect customers are communicated to the staff at business service centres who have responsibility for responding to customers’ fault reports.”

With Bell Canada International and Coopers & Lybrand busy producing their individual reports on the COT allegations we four at last felt vindicated; we were not paranoid after all. Telstra really did have a case to answer.

As a result of their own investigation, the Regulator had come to the conclusion that there were problems in the Telstra Network and that the COT four had, for all the right reasons, been diligent in bringing these issues into the public domain. It looked like four Australian citizens, without any financial backing (and now all close to being totally broke) had won a significant battle. Sometimes, we thought, David wins over Goliath, even in the twentieth century.

Because we were all in such difficult financial positions however, because our phone services were still not up to network standard and because I had certainly proved that my phones were not working properly, the Chairman of the Regulator pressured Telstra into appointing a commercial loss assessor to arrive at a value for our claims. This was to be the non-legal Fast Track Settlement Process and it was to be set up so the COT four would have prompt and speedy access to any discovery documents we might need to enable us to complete our claims as quickly as possible.

Telstra agreed to rectify any on-going phone faults before the assessor handed down any decision regarding payouts. After all, what good would a commercial settlement be, if the phone faults continued? Again our spirits rose and we began to feel we were getting somewhere at last. We had discussions with the Regulator’s Chairman and he verbally assured us that any preparational costs we might incur would be considered as part of our losses, so long as we proved our claims.

This same Chairman would not confirm this assurance in writing because, he explained, it could set a precedent. Telstra’s Corporate Secretary had written to him on 18^th November 1993 (FOI document number R10799), pointing out that:

“... only the COT four are to be commercially assessed by an assessor.

For the sake of convenience I have enclosed an amended copy of the Fast Track Proposal which includes all amendments.

To facilitate its acceptance by all or any of the COT members I have signed it on behalf of the company. Please note that the offer of settlement by this means is open for acceptance until 5 pm Tuesday 23 November 1993 at which time it will lapse and be replaced by the arbitration process we expect to apply to all carriers following the Regulator’s recommendations flowing from this and other reviews.”

COT want your advice whether or not COT should demand that clause 2(c) include a broader definition of losses to include consequential losses.

COT was hoping for your advice by tomorrow.”

CHAPTER 15

Graham, Ann, Maureen and I signed the FTSP the following day, 23^rd November 1993, trusting in the Regulator’s verbal assurances that consequential losses would be included. The agreement was forwarded to Telstra’s corporate secretary. I included a letter with the agreement, clearly putting my expectations of the process:

“In signing and returning this proposal to you I am relying on the assurances of …, Chairman of the Regulator, and …, General Manager of the Regulator’s Consumer Affairs Department, that this is a fair document. I was disappointed that … was unwilling to put his assurances in writing, but am nevertheless prepared to accept what he said.

I would not sign this agreement if I thought it prevented me from continuing my efforts to have a satisfactory service for my business. It is a clear understanding that nothing in this agreement prevents me from continuing to seek a satisfactory telephone service.”

The four COT members felt some sense of achievement, although Maureen’s health was beginning to fail. The rest of us tried to ring her as often as we could because she was not getting much support from her business partner, who often seemed a bit put out when we rang Maureen to ask how she was.

The pressure on all four of us had been immense, with TV and newspaper interviews as well as our continuing canvassing of the Senate. The stress was telling by now but I continued to hammer for a change in rural telephone services.

A number of other small businesses in rural Australia had begun to write to me regarding their experiences of a poor standard of service from Telstra. Other ordinary subscribers were also writing of problems they had had with their phones, including a number of different billing issues. I contacted Telstra management myself on a number of occasions, putting on record my requests for these matters to be resolved. I believed then, and I still believe, that this was a responsible reaction to the letters I was receiving. Telstra didn’t even offer a ‘thank you’ however, leaving me with only one option: to continue to canvas the media for publicity about our fight.

Other rural subscribers wrote to various TV stations and newspapers supporting my allegations that, with regard to telephone services, rural small-business people, as well as the general public, were not being supplied with a level playing field when compared to our city cousins. One of these letters is particularly interesting. It came from a company of Insurance Loss Adjusters in Ballarat, a rural city in Victoria, and was sent to the producer of “Real Life”, a TV current affairs program then being broadcast on Channel 7. They wrote: “Re Problems with Telstra"

I have watched with interest the shorts leading up to tonight’s program as I have similar problems to the man at Cape Bridgewater.

Our office is located in Ballarat and due to Telstra structure the majority of our local calls are STD-fee based. (STD calls are charged by time)

On many occasions we have been unable to get through to numbers we have dialled, often receiving the message “This number is not connected” or similar messages which we know to be untrue.

Clients report that they often receive the engaged signal when calling us and a review of the office reveals that at least one of our lines was free at the relevant time.

We have just received our latest Telstra bill which in total is up about 25-30% on the last bill. This is odd because our work load in the billing period was down by about 25% and we have one staff member less than the previous billing period.”

Another letter sent in April 1993 to the Editor of the Herald-Sun Newspaper in Victoria, read in part:

“I am writing in reference to your article in last Friday’s Herald-Sun (2nd April 1993) about phone difficulties experienced by businesses.

I wish to confirm that I have had problems trying to contact Cape Bridgewater Holiday Camp over the past 2 years.

I have also experienced problems while trying to organise our family camp for September this year. On numerous occasions I have rung from both this business number 053 424 675 and also my home number and received no response - a dead line.

I also rang around the end of February (1993) and twice was subjected to a piercing noise similar to a fax. I reported this incident to Telstra who also got the same noise when testing.”

Because of a number of reports regarding this ‘piercing noise’, a worker from Telstra’s Country Division arranged to have my service switched to another system. Unfortunately this did not seem to help.

Various TV stations reported that their phones had run hot whenever they aired stories about phone faults. People rang from all over the country with complaints about Telstra’s service. This support from the media and from the general public boosted our morale and gave us a bit more energy to keep going as a group. We continued to push to have all these matters addressed in the Senate.

FOI documents show that, at about this same time, a number of Labor Party Senators were becoming more and more concerned at what COT members were uncovering. Other FOI documents show that Telstra were not correctly reporting the true facts of the situation at the end of 1993. It is also clear from still more FOI documents that it is highly likely that some newspaper journalists were approached by Telstra and asked to ‘kill’ a story about our problems with phone faults.

FOI document number C04054, entitled “Cot Wrap-Up”, states, in part:

“I think it should be acknowledged these customers are not going to become delighted. We are dealing with the long-term aggrieved and they will not lie down.

Further, I propose that we consider immediately targeting key reporters in the major papers and turn them on to some sexy “Look at superbly built and maintained network” stories.

I advise that Clinton be targeted for some decent Telstra exclusive stories to get his mind out of the gutter.”

We are left to wonder just who ‘Clinton’ was and why his mind was considered to be ‘in the gutter’!

One of the TV news programs was clearly also a target in this attempt to muzzle the media. FOI document A04646 reports:

"Good news re Channel (Australian TV station ID deleted) News. Haven’t checked all outlets but as it didn’t run on the main bulletin last night, we can be pretty certain that the story died the death. I wish I could figure which phrase it was that convinced (reporter’s name deleted) not to proceed. Might have been one of (name omitted) pearls.”

The last person referred to in this e-mail was then Telstra’s Corporate Secretary; the reporter worked for the TV station referred to at the beginning of the e-mail. The identity of the TV station and reporter, clearly shown in the original e-mail, have deliberately been omitted from this book.

Again we can only wonder what it was that could convince a respected journalist to drop a story. Furthermore, if Telstra had met with the members of COT at the very beginning, listened to our complaints and then done something about them, there may never have been a need to interfere with media stories because there never would have been a Casualties of Telstra group in the first place. After all, we were only asking that Telstra rectify our phones so we could each get on with the running of our businesses in the same way that other small businesses operated.

Many other Telstra documents have been censored before being released under FOI with some names blacked out but other documents show that Telstra’s area general manager is clearly referred to as one of the Telstra people appointed to ‘deal with the media/politicians’ regarding COT issues. I have previously recounted one of the stories related to this same area general manager. As I explained then, it seems quite clear that this manager had deliberately misinformed me during a settlement process in 1992/93. Now we discover that she was to be one of only two people who were appointed to speak to the media about the COTs. Would she have misinformed the media the way she misinformed me, I wonder? And, just as worrying, why was the author of this memo so worried about ‘tripping up’?

CHAPTER 16

On the 17^th January 1994, the then-TIO distributed a media release. An ‘assessor’, had been commissioned to process the four COT Fast Track Settlement Proposals. What the TIO did not say was that Telstra were already not abiding by the original FTSP agreement: they were not supplying us with the discovery documents (documents relating to compulsory disclosure of facts) we were requesting under FOI.

By this stage we had lost any chance we might have had for a Senate Inquiry into what the COT members believed was the unethical way Telstra was continuing to treat us. By late January 1994, it appeared that not only was Telstra treating us with sheer contempt, but they were doing this in full view of the Senate. The COT members were beginning to believe that no single person, and no organisation, anywhere in Australia, had the courage to instigate a Judicial Inquiry into the way Telstra continued to thumb their noses at the Government.

Imagine having to write to Telstra’s solicitors, to lodge my phone complaints! Was this Telstra’s way of breaking my morale? Imagine having to report a telephone fault, in writing, to a solicitor!

We learnt from the TIO that the commercial ‘assessor’ had drawn up a set of rules within which to work on our cases. Then, to add insult to injury yet again, we learned that Telstra had badgered him into converting the commercial assessment into an ‘arbitration’ procedure (a legal hearing to settle a civil dispute). COT members registered our disagreement with this through the TIO who had been appointed as an independent administrator of the Fast Track Settlement Process. We made it very clear to the TIO that the four of us were already involved in a signed and agreed commercial process and we saw no clear reason for changing that situation. We believed an arbitration process would certainly never be ‘fast-tracked’. It was bound to become legalistic and drawn out and we knew none of us had the finances to go up against Telstra’s high-powered legal team in such a process. We believed the whole idea of an arbitration had been raised simply to suit Telstra’s agenda.

Somewhere between the 6^th and 8^th of February that same year, Graham Schorer had a telephone conversation with the TIO. Graham wanted to discuss the reasons the COT four were rejecting the arbitration process. Our reasons were immediately dismissed. The TIO used words to the effect that his prime role was as Telecommunications Ombudsman and that he had been spending much too much time focussing on his secondary role as administrator of our FTSP. He was concerned that his office had already incurred considerable expense because of this administrator role and he made it clear to Graham that Telstra had refused to reimburse those expenses. He also indicated that his office had no intention of continuing to incur expenses on our behalf. Further, he told Graham that if the COT four did not abandon their commercial agreement with Telstra then Telstra would pull out all stops with the aim of forcing us into a position where we would have to take Telstra to court to resolve our commercial losses. Telstra, the new arbitrator and the TIO were all aware that none of us had the financial resources to enter into a court case.

As if all this wasn’t shattering enough, the TIO went on to say that, if we did decide to take legal action in an attempt to compel Telstra to honour their original commercial assessment agreement then he (the TIO) would resign as administrator of the procedure. This action would have forced the conclusion of the FTSP and left us with no other alternative but to each take conventional legal action to resolve our claims.

Simply put, it seemed that the TIO had sold us out. The new assessor also seemed to be selling us out before he even got properly started. We asked to see Telstra’s preferred rules of arbitration, which had already been supplied to the TIO’s office, but the TIO refused our request. We had been reassured that these rules had been drawn up independently of Telstra, by the arbitrator and Minter Ellison, the legal counsel to the TIO’s office. We were also told that a one of the partners in Minter Ellison had consulted with the arbitrator over these rules. This partner was also the president of the Institute of Arbitrators Australia which, we were told, would give the arbitration extra credit. This same man later went on to become a County Court judge.

Whenever we asked to see a copy of these rules we were told that we should trust the arbitrator. And so we did. In retrospect we were fools to accept such a compromise but, after struggling through the nightmare of the years leading up to this point, we were all exhausted, stressed and clutching at straws. Singly and as a group we were vulnerable to the trickery of Telstra’s corporate power.

Even so, we continued to implore the TIO to reconsider and let us continue with the original FTSP agreement. On 16^th April 1994 we faxed him once again, stressing our request. Again this fell on deaf ears. By the following Thursday, 21^st April 1994, we had given up and abandoned the FTSP without seeing Telstra’s preferred rules of arbitration. Later we discovered that the copy of these rules that had been supplied to the TIO’s office was actually headed “Telstra’s preferred rules of arbitration.” We simply wanted to make sure that the rules we were signing were different to Telstra’s ‘preferred rules’: why should Telstra be allowed to dictate to us?

On 17^th February Graham Schorer and Ann Garms met with the arbitrator and legal counsel for both Telstra and the TIO. The TIO had previously advised me that I wasn’t needed at this meeting and so I reluctantly agreed not to attend. Graham and Ann stressed our alarm at Telstra’s continuing delays in supplying FOI document and Telstra’s minutes clearly show that the arbitrator was adamant that he would not conclude the process or hand down his decision on ‘incomplete’ information: he reassured Graham and Ann that, once the arbitration got underway he would be in a position to force Telstra to supply all the documents we needed because he would be backed by the official Arbitration Act. Further ahead in this book you will find that the arbitrator never once followed up on his promise to ‘force’ Telstra to supply our documentation.

After this meeting it was agreed that a set of rules would be drawn up and provided for both sides to assess. The COTs were still reluctant to abandon the previous settlement process but the TIO continued to assure us that all the important clauses in the original agreement would be included in the new arbitration rules. We explained that we were mainly concerned that one particular clause, 2(f), from the original agreement be included in the new rules and the TIO again told us that we didn’t have to worry, clause 2(f) would certainly remain in the new agreement: this was what finally won us over, and we reluctantly agreed to assess the new rules.

When this document was provided to us, sure enough, the important clause 2(f) was safely included, word for word as promised. The only change was that it was now called clause 10.2.2. We relaxed a little and then got legal advice to make sure that the rules were truly fair. We were assured by the arbitrator that no other changes would be made in fact the arbitrator even wrote to the arbitration project manager on 27^th February insisting that there should be no changes, particularly to clause 10.2.2.

What we didn’t know then was that, on 24^th March 1994, after our legal advisors reassured us that the rules were truly fair, and Ann, Graham and I had therefore signed to agree to the rules, (but before we signed for the actual arbitration procedure in full) the arbitrator, the TIO, people from Telstra’s Legal directorate department and Telstra’s lawyer held a secret meeting to discuss more alterations the already agreed to rules. This meeting was held without the knowledge or consent of anyone from COT. Telstra’s minutes of the meeting show clearly that the TIO was adamant that he would not agree to any changes to clause 10.2.2, even going so far as to say that he wouldn’t endorse the process if clause 10.2.2 was not an exact duplicate of the old clause 2(f). Some time later, again without the knowledge of the COT claimants, five very important words were removed however. These words “… each of the Claimants claims…” had been included in the first place because the COTs were each making multiple claims against Telstra, for many different types of faults, and for a number of illegal events that we had each experienced, once we had begun to lodge our individual complaints against the telecommunications giant. Removal of these important words meant that the arbitrator would no longer have to prepare a written finding on each of these individual claims – he could pick and choose which claims he wanted to ignore. And so he chose to ignore my 1800 billing fault claims; and he chose to ignore my claims in regard to Telstra’s illegal bugging of my phone calls. We wonder who had the power to persuade the TIO to agree to this change that he had so strenuously fought against initially. And, when I finally signed the arbitration agreement on 21^st April 1994, why wasn’t I alerted to this change? As you will discover, the plot continued to thicken.

CHAPTER 17

On 22^nd April, the day after I signed for arbitration, the Regulator received three blank fax sheets from my office. These documents didn’t even have my fax identification across the top, as they would have if the pages had been put in my fax machine upside down. If I hadn’t immediately followed up the fax with a phone call to the Regulator to discuss the information they contained, the Regulator would never have known where the pages came from. Another aspect of this event is the discovery, on each of the otherwise blank pages, of a small icon in one corner. I suggested that the Regulator check their fax journal to make sure that they were pages I had sent and I was correct, their journal showed three pages from my fax number at the same time as these three ‘blank’ pages arrived at their end. Now tests have proved that a blank faxed page takes about thirty seconds to send but transmission time varies if the document has information on it – the more information, the longer the page takes to travel to its destination. According to the Regulator’s fax journal, these ‘blank’ pages took between one minute and forty seconds and two minutes and twenty-two seconds to transmit – and arrived without the information they started out with. Where had the information disappeared to in the interim? Nothing had changed, and we were now into the first day of my arbitration.

On 26^th April my son attempted to phone me from his mother’s, where he was living at the time. According to my billing records he first tried at 12.55 in the afternoon and, because he only reached an engaged signal he tried again and again. Document K37932, Telstra’s fault report for that day, confirms fifteen calls from his mother’s number, all of which he insists found the phone engaged at my end or just reached a dead line, yet Telstra charged me for each of those calls on my 1800 line. Were these some of the 1800 calls that Telstra had labelled post-dialling delay and short duration faults?

When copies of my Telstra accounts are compared to Telstra’s own data, it is clear that I was charged for all fifteen calls which didn’t connect. Over the years I have accumulated many, many documents which prove conclusively that Telstra people were aware of the many problems my phone line suffered. For instance, in August 1993 I complained to Telstra that customers and friends alike were commenting on the peculiar behaviour of my direct out-going line, which was also a fax line. People often had remarked that, after I had hung up they could still hear me moving around the office. Because of all the other problems I was dealing with at the time I didn’t pay much attention to this small fault until 26^th April 1994, the same day that my son had tried so hard to reach me by phone.

This day I phoned one of the Regulator’s senior engineers, to talk about this ‘hang up’ fault. The engineer suggested that he and I carry out a series of tests on that phone line. His plan was that after we had connected, I would hang up and count out loud, say from one to ten, while he listened at his end. This first test proved that he could hear me right through to the number ten and so he suggested we try it again, but count even further this time. Still the same situation: he could hear me right through the range as I counted. Then he suggested that I take the phone off that line and switch it with the phone which was connected to my other line (they were both exactly the same Telstra phones, model T200). I did this and we repeated the ‘counting’ test, with exactly the same results. According to the engineer (and it was also apparent to me) this proved that the fault was not in the phone itself, but somewhere in the Telstra network. The engineer’s next suggestion was that I ring Telstra, which I duly did.

I explained carefully what was happening, adding that I had experimented and found that I could count for quite a long time, up to fifteen or more, and the person at the other end could still hear quite clearly. I didn’t mention that I had tested two different phones because I was well aware that Telstra had a strong inclination to blame the customer’s equipment first. I was interested to see what they would come up with this time.

So, again, I performed the same tests for this Telstra person, who then advised that he would send a technician to collect the phone the very next day. Documents K00940 and K00941, which I acquired later, show that he was fully aware, before the phone was even tested, that it was not a problem with the phone that was causing the fault, but heat in the Cape Bridgewater exchange. In these email documents, Telstra personnel discuss the likelihood that it was heat that was causing the problem and relate a similar situation at an exchange in another State which was definitely proved to have been caused by heat inside the exchange.

Meanwhile, on 27^th April, when Telstra phoned at around nine in the morning, to arrange pick-up of the faulty phone, I had just arrived back in my office after spending the previous twelve hours on our local CFA (Country Fire Authority) fire truck fighting a large bush fire (as our local CFA records will show). I explained to the Telstra caller that I had been out from seven o’clock the night before and had only just arrived back, and I asked if the pick-up could be arranged for some time after one o’clock that afternoon, so I could get some sleep. Later, in an FOI document, I found that the most important part of this conversation had been omitted from Telstra’s records: they simply stated that ‘Mr Smith was tired, and wanted to go to bed’ and went on to say that I had asked that they not disturb me until after lunch. The omission of any reference to why I was tired is just another example of how some Telstra personnel twist words to suit their own perspective.

By now I was trying to assess my situation and collate my own claim to submit to arbitration, using much of the Regulator’s ‘COT report’ which had just been released (in April of 1994). Even this report had needed to be revised by the Regulator’s chairman because Telstra threatened to enforce an injunction, thereby tying the report up for years in a legalistic manoeuvre. The chairman had agreed to the amendments required by Telstra just so that the COT four could at least have access to some of the information in the report.

The Regulator had found a number of my claims to be proven, however they were basing their conclusions on information supplied only by Telstra and it later turned out that Telstra had not given the Regulator the true facts regarding the age of the first exchange at Cape Bridgewater. I had hired as technical advisor, a telecommunications expert based in Queensland, and he based his findings on the Regulator’s report. This meant, of course, that he also based his findings on incorrect information. According to the Regulator’s report, the first exchange in Cape Bridgewater was called an ARK exchange. What transpired later was that it was, in fact, an RAX exchange. The RAX was designed in the late 1940s or early 1950s, specifically for low-call-rate areas. The ARK was newer technology and was designed some 20 years later.

The first part of my claim covered the first three and a half years after I took over the camp at Cape Bridgewater (the whole claim covered a period of six and a half years in all). I later discovered that this ancient exchange had been in operation for years, but my technical advisor and I both believed, as did the Regulator, according to their report, that the newer exchange was in place throughout all those years. So my technical advisor assessed my situation, unknowingly working from a false base. This incorrect information downplayed the true fault loss suffered by my business. Was this incorrect information, given to the Regulator by Telstra, just another deceptive move aimed at hiding the true extent of my continuing phone faults?

This was beginning to look like a repeat of the Tobacco companies and their deceptive conduct over a twenty-year period, hiding their true knowledge about the addictive effects of nicotine and then hiding their knowledge about the smoker’s health risks as well. Telstra was (and still is) no different really. They were fully aware that a number of their exchanges around Australia were outdated and were therefore causing enormous difficulties for their subscribers, small-business people and the general public alike. Still they hid these facts and did nothing to improve the system. For years Telstra continued to charge me for calls that never connected, for RVA calls and for short duration (and therefore useless) calls. Why hasn’t the TIO’s office investigated my irrefutable evidence? After all, this evidence is supported by Telstra’s own data.

Some nine months earlier, in August of 1993, having been to Melbourne for a COT meeting, I arrived back home to be confronted by a Sheriff from the Justice Department. He had a warrant requiring payment of an overdue account with one of my suppliers, or seizure of goods in lieu of payment. I asked if he would wait fifteen minutes while I tried to talk to the people I owed money to but he would not. A fight ensued and I threw him out of my office. Later I was charged, in the Magistrate’s Court, with assault: I appealed the court action, defended the charge successfully and saved the day (there was no conviction). It would appear that Telstra’s FOI Unit was also interested in this situation since a copy of a newspaper article about the incident later came from Telstra’s records, included in documents supplied in response to one of my FOI requests. What this had to do with my phone problems is anyone’s guess although I have since learned that Telstra were accumulating a lot of personal information about me in a file containing details of who rang me, when they rang and from where, as well as when my staff left my business at the end of their working day. Apparently they were not only interested in my complaints about phone faults.

And so I battled on. A law student to assist would have been a Godsend! The mountain of documents continued to grow and threatened to engulf me entirely, while Telstra’s multiplying legal team stood by, waiting to pounce on the slightest crack they could manufacture in the claim documents I submitted. The knowledge that every document I sent would be poured over by highly qualified legal experts didn’t exactly help to keep my confidence up. Finally I sought out the TIO and his legal counsel, explaining my lack of confidence and re-iterating their chairman’s reason for first asking for a non-legalistic hearing for us – he had always believed this would be the best and fairest way for us to present our cases.

The TIO could only console me by telling me to ‘do the best you can’. The TIO’s legal counsel re-assured me that the new process was fair and advised me to ‘give it a go’. And so I had no choice but to seek help from professionals in the field. I began by approaching a local firm of loss assessors in nearby Mt Gambier, just over the border in South Australia, about one hundred and ten kilometres away. This firm was headed by an agent for NZ Insurance. When I first phoned I spoke to him and explained who I was, gave my location and what I hoped to have help with, there was quite a long pause before he asked me if I had suffered some storm damage at the camp about four or five years earlier. I remembered that I had. It turned out that he had acted as loss assessor back then and remembered that he had had a lot of trouble contacting me by phone and had finally resorted to writing to me to let me know they were coming to assess the storm damage.

After discussing my current position in more detail the agent decided that my problems were outside their area of expertise. Imagine, Telstra and the TIO expected me to prepare my claim alone and a professional loss assessor believed the case was too complicated for him to take on. Here I was, a marine cook, a chef, and the TIO and his legal counsel could only tell me to ‘do the best you can’!

I continued my search for assistance in the Melbourne metropolitan area, approaching four different companies specialising in communications. Three didn’t even respond in writing and the fourth simply wished me luck in finding someone who would be brave enough to go up against Telstra.

It was at this stage that I approached the technical advisor in Queensland, who finally came on board. He was already working on Ann Garms’s case and she had suggested I talk to him. It was just a shame that he was so far away from me geographically, as this, of course, complicated everything just that bit more. When Telstra discovered that we had secured this expert help, they approached him, offering work. It would seem that they were still trying to close off all avenues for the COTs. This man, however, at seventy years of age, was having none of that. He made it quite clear that, if he took up Telstra’s offer, it would create a definite conflict of interest and severely disadvantage the COT members and so, bless his beautiful heart, he declined their offer. It would seem that at least one Australian was prepared to put himself on the line and face up to Telstra’s bottomless financial public purse.

Finally, after more searching, I located a Loss Assessor company, Freemans, also twelve hundred kilometres away on the Sunshine Coast in Queensland, and then I spoke with an ex-National Crime Authority detective who agreed to help me on the understanding that he would only be paid if and when I won my claim. The only payment he expected along the way would be for re-imbursem*nt of out-of-pocket travel expenses so he could come to Cape Bridgewater from his base, also in Queensland.

Once all these professionals were in place I then had to work out how to raise the finances to bring the detective to the camp. With my business still in tatters I was caught like a butterfly in a web: the consequential losses resulting from the poor phone service meant that my finances were getting worse and worse but I badly needed money to keep up the fight. The only alternative was bankruptcy and I was determined not to lose the camp because of Telstra’s skulduggery.

Government Ministers, Coopers & Lybrand and the Regulator were all agreeing that the COT-cases were right and Telstra was wrong. Even Telstra themselves, in a letter to the Minister for Communication, admitted that my assumptions were correct, but we still had our backs against the wall. We were still not getting any financial assistance from anywhere and were left to scratch around to raise the funds to organise our claims, claims that most loss assessors would not even attempt to touch.

At about this time, nine hundred to a thousand discovery documents arrived from Telstra, in response to one of my FOI requests. “Wonderful,” I thought, “now we are getting somewhere.” But, of course, I was wrong. Telstra may well have supplied the documents but, according to the FOI act, they were required to supply them in some sort of order, preferably chronological and definitely with some sort of numbering system in place. Not only were all these documents supplied without any numbering system, they were also not even supplied in chronological order of any sort. Further, there was no explanation of what the documents actually represented. Many were unreadable with so much information blanked out that they were totally worthless. This would have driven even the most hardened lawyer to the wall with frustration. One particularly exasperating document began with the words: “Mr Smith has recently reported further faults which have all been investigated, with some confirmed and corrected. Investigation into others continues.” The entire rest of the A4 page has been blanked out, with a wide black marker pen. How could I support my claim with material like this?

CHAPTER 18

Finally I managed to raise enough cash to bring the detective to the camp for a couple of days to observe what was going on with the phones. During his stay he noted short duration calls, dead lines and problems trying to send faxes to Queensland. His previous experience also led him to believe I was being watched. He was sure I was being kept under some sort of surveillance and documents later received under FOI (including document K01006) show that Telstra were aware of my movements at this time, and the movements of my staff.

Telstra email K01006, dated Thursday 7^th April 1994, at 2.05 pm raises two issues. Firstly this date falls during the time I was involved in the Regulator-designed commercial agreement with Telstra and secret observations would surely seem to be inappropriate, at the very least. Secondly, this document refers to a time when I would be away from my business. The author of the email states (note that NRR in this memo refers to ‘Not Receiving Rings’):

“Mr Alan Smith is absent from his premises from 5/8/94 - 8/8/94. On other occasions when he has been absent there have been documented complaints received (usually months later) involving NRR etc. I called the premises at approx 4:55 pm 6/4/94. The answer time was 41 secs.

I intend on this occasion to document his absence and file all data I can collect for the period. That way we should be prepared for anything that follows.”

Clearly the writer knew, in April of 1994, that I planned to be away later that year, in the August. In other words he knew of my movements, four months in advance. Telstra have never been able to explain how he came by this information. At other times, this same person has also stated that he knew I had spoken to a former Australian Prime Minister on the phone and when that conversation took place. He insists I told him about this conversation but this is not true, I told him no such thing. Again, Telstra have never been able to find a convincing explanation for their employee having this information. Obviously Telstra were still listening to my private calls, even though I was then involved in litigation with them and their lawyers. Another FOI document, not numbered, clearly shows that the writer knew where one of my regular callers usually rang from even though, on the documented occasion, the caller was phoning from a different number, “somewhere near Adelaide”. How could the writer have this information, if someone hadn’t listened to this call to find out who the caller was?

The then-Minister for Communications, the TIO and the Federal Police were all supplied with this document, along with a number of other documents indicating that my private calls were being ‘bugged’. I have had no response from any of them, and I have now been waiting for many years.

Listening to private calls is appalling enough, but the following information is even more damning. Page A133 of the official Senate Hansard records dated 25^th February 1994 states that the then-Shadow Minister for Communications questioned the Regulator’s Chairman, asking:

“Why did not (the Regulator) immediately refer the COT’s allegations of voice recording to the Federal Police instead of waiting for the Minister to refer the matter to the Attorney General and then on to the Federal Police?”

FOI document K00701, dated 14^th January 1994 and titled “Voice Monitoring of Priority, Investigation Services” states: “Described below are the details of any voice monitoring which has been carried out on the 3 Priority Case Investigation services in Country Vic/Tas”.

This document goes on to say that calls to the Cape Bridgewater Holiday Camp had been voice monitored at the Portland exchange where an alarm bell rang when calls came through for the Camp. Further proof that Telstra personnel listened to my calls over a long period.

FOI document A10148, is a copy of a letter dated 10^th February 1994 from the Regulator’s General Manager of Customer Affairs to Telstra’s Group General Manager in charge of the COT arbitrations. It confirms a visit by the Federal Police. In this letter the Regulator notes: “Yesterday we were called upon by officers of the Australian Federal Police in relation to the taping of the telephone services of COT cases.”

Another intriguing letter, which I received under FOI, was dated 28^th January 1994 (within the COT litigation period) and was from none other than the Chairman of the Board of Telstra, writing to the then-Minister for Communications, and acknowledging that the Board were aware that Telstra technicians had listened to customers’ conversations. He wrote: “Thank you for your letter of 20 January 1994 requesting a report on allegations regarding voice monitoring.

"I have attached for your consideration a full report on Telstra’s inquiries into this matter and the actions proposed to prevent its recurrence.”

Other documents received by various members of COT also confirm this ‘voice monitoring’. These documents include one titled “Corporate & Govt. Major Customer Group 19/8/92” (also referred to in Chapter 9) which includes information showing that the document relates to the Tivoli Theatre Restaurant (which was owned and run by Ann Garms in Brisbane) and, in relation to ‘voice monitoring’, there appears a comment asking if there could have possibly been some sort of “sabotage”, and others suggesting that this could be a “…job for super sleuth Sherlock Kelly” I found myself wondering; was this an internal memo from Australia’s largest telecommunications company I was reading, or was it a page torn from a spy novel?

FOI document B00474, a copy of a Telstra minute, also refers to Ann Garms and the Tivoli Restaurant. In this paper, the Federal Police’s investigation had Telstra asking why a named Federal Police Officer

“… initially stated a particular person was paying money for 3 people + others in Telstra to manipulate some services......... Why was Federal police stopped from investigating the Tivoli Case ........... Why did (name deleted) start to deny everything and then volunteer for service in New Guinea for 2 years. Why was AA of Protective Services investigated? And investigation stopped short of his bank account.

Why did AA of Protective Services initially accede to my request to borrow a Bug scanning device for the 12^th Night and Tivoli, then suddenly change heart ............”

CHAPTER 19

Telstra have acknowledged that, during May of 1994, I continued to report what is commonly referred to in communication circles as R00 faults, i.e. the phone only rings once or twice, then stops. Telstra officials tried to play down these faults as me not understanding the operation of my new fax machine (in other words, they continued to blame the customer’s equipment, referred to as CPE or customer premises equipment), even after Coopers & Lybrand’s report of November 1993 had advised that it was not acceptable to simply blame the customer without any proper investigation.

The Regulator also found that the R00 faults were continuing. In their COT report, under the heading “Telstra’s fault reporting/recording & monitoring/testing system & procedures”, they said: “Network investigations had been working on the problem for an extended period of time with little success. This involvement has been escalated in the past three months — this fault was in connection to cut-offs which had also happened in the past.”

In the same report is the comment:

“It may be concluded from the above extracts from internal Telstra documents that Telstra knew for quite some time of general problems in its network which were affecting customers and was unable to identify the cause of those problems” and again:

“AXE network fault — this is Portland’s main telephone exchange (AXE).

In the period February to April 1993 Telstra staff responding to complaints lodged by Mr Smith of the Cape Bridgewater Holiday Camp recorded in their notes that there was a fault known to exist in AXE (digital) Switching equipment which could give rise to a single burst of ring, followed by a busy tone to a caller and dial tone to the called party — for example:

“I spoke to Alan Smith ..... he received one burst of ring at 1.15 pm and 5.05 pm yesterday. When he picked up the receiver he heard dial tone. This problem occurs intermittently through-out the network and although it is recognised as a problem there appears to be no one person or group involved in resolving it.”

And again, in Chapter 7, in a document titled “Customer Complaint Form 25^th March 1993”: “Visited Mr Smith 6/04 to do end to end test calls. The first call in prior to me starting testing gave two bursts of ring and when the phone was lifted there was only dial tone. The receptionist said it was the 2nd call that morning with the same result. She also stated several people had commented they receive busy tone when they rang the previous evening when she knew the phone was free.”

These statements are even more alarming when you realise they were collected from Telstra’s own archives and records, by the Regulator, paid by the Australian Government, and yet still some Telstra officials were prepared to later sign Statutory Declarations covering information they knew to be untrue. This corporate culture at the management level of Telstra was what put the members of COT in the positions they found themselves in: fighting an unfair arbitration simply because we challenged the misleading and deceptive conduct of Telstra managers. Simply because we were seeking the truth. Simply because we were prepared to stand up for our rights as Australian citizens; our rights to a telephone system which was comparable to that of our competitors.

During May 1994 the Queensland detective and I spent five nights toiling over the pile of Telstra discovery documents in an attempt to decipher what they all meant. By this time the detective was also experiencing phone problems similar to those I had been suffering from, for all these years. I found some comfort in having someone of his standing staying with me, even if it was for only a short time. His background in the police force and the NCA was quietly reassuring. When he left to return to his office in Queensland he took some of the FOI documents with him for further examination.

While he had been staying with me, I discovered I could not locate a number of important camp documents. Missing were exercise books in which I kept official booking records, books which I needed to support those few bookings that were still managing to get through; a number of bank statements and my bank pay-in books for 1992/93. Also missing were two diaries that were keepsakes because they were in my ex-wife’s handwriting (from the two years she spent at Cape Bridgewater before our marriage broke up). These diaries covered the period of 1988 to 1989 and they have never been seen since. I was left with my rough diaries, and the wall planners I used to register bookings as they came in and before they were registered in the official exercise books. This information is covered in more detail in the description of an oral arbitration hearing which occurred later, on 11^th October 1994.

Because all these records went missing, I was hard pressed to produce full and correct financial statements for my financial advisor. In fact, I had to resort almost to guesswork, based on information from my wall planners and diary, which I compared to those bank statements I still had. Where these missing records really went is anybody’s guess.

Graham Schorer found himself in a similar position. A concrete pillar at the side of his office was smashed so thieves could gain access to his business. Interestingly, the only things stolen were documents.

My stress levels rose enormously over this period. Trying to produce a claim in some readable form when the story was so very complex, and without much actual technical knowledge was extremely difficult. My phone and fax lines became lifelines to the detective in Queensland. By this time I was not only relying on the phone lines, I was also, unfortunately, relying more and more on the Scotch bottle, consuming up to three or four scotches a night in a vain attempt to calm my nerves. My private life was a mess with my partner in Ballarat and I turned, for a time, to another fine lady for comfort. Soon after she befriended me, she also began to experience problems with her business phones and her customers started complaining that her phone was continually engaged. FOI documents indicate that Telstra investigated this.

Often I was aware of a particular car sitting on the road above my house. Were they admiring the picturesque view of Cape Bridgewater Bay, I wondered, or were they watching me? Even though I was aware that my mind may well have been playing tricks on me, this was certainly a worry.

Even the local Telstra technicians seemed to be involved in this process: in one FOI document (K03273), an internal Telstra memo, the unidentified writer offers to supply a list of phone numbers which I had rung (I believe this was around the time of the ‘briefcase saga’ incident which is described in Chapter 11). Why were Telstra employees happy to distribute this private information so freely?

Other FOI documents show that other Telstra officials were checking up on who I rang, and were keeping records including the names of other organisations, clients and friends. Even my ex-wife did not escape — her name was listed also. As I uncovered more and more of this ‘spying’ I became more and more agitated. By May/June of 1994, as I battled on with the preparation of my claim, I was sinking deeper and deeper into depression.

Much of this information was forwarded to the TIO, who was, after all, supposed to be the independent administration of the arbitration. Not once did I receive a reply from the TIO’s office regarding this particular matter. And still the phone and fax problems continued. Since the problems were still occurring I was in somewhat of a bind. Legally, Telstra had thirty days to respond to any FOI request I lodged so how could I provide evidence to the arbitration regarding faults that only happened the day before? The whole process was getting out of hand and, although I raised this issue with both the TIO and the arbitrator, I didn’t get much help. The TIO would only reiterate that I should lodge my claim to the best of my ability.

The Queensland detective attempted to ring me on 27^th May 1994, using my 1800 freecall service (this can be confirmed from Telstra’s own records). Finally he got through at 7.59 pm. I was at screaming point when I discovered he had tried at 7.51 pm and again at 7.55 pm, reaching a recorded voice announcement both times. On both occasions he was told that my number was not connected. When he rang the Telstra fault centre to complain about these voice messages the operator told him she could not register the fault because the complaint had to come from the customer. The detective’s response was understandably rather abrupt. “How” he asked, “can the customer complain if he doesn’t even know that I’m trying to reach him? How can he complain if he is not aware that his incoming callers believe he’s no longer trading?”

When my telephone account for this period arrived I was again stunned to see that I had been charged for both the detective’s calls. The 7.51 pm call was charged at seventy-six cents and the 7.55 pm call was charged at thirty cents.

By this stage I had been fighting for six and a half years to have these matters addressed and still I was caught in a game of ‘catch up tennis’. As each new fault appeared I had to lodge an FOI request and each request would take thirty days to bring results. No sooner had I faxed information to the arbitrator detailing yesterday’s faults than more occurred and I had to wait, again, for another thirty days to get copies of Telstra’s records. Many times I sobbed in frustration. No-one would listen or, if they did hear me, they apparently didn’t care. Or was Telstra playing some sort of cat and mouse game with me?

On a number of occasions during 1994 I was interviewed by the Australian Federal Police in relation to my problems with Telstra and my arbitration. During these interviews I answered, in all, more than ninety-six different questions. It was clear that the Federal Police were very concerned at the documentation I had provided for them. They were alarmed by one document in particular (referred to in Chapter 18), and kept asking: How could a caller, who usually called from one number, be identified if he called from another number, apparently somewhere in Adelaide?

If the Federal Police, Telstra or the Government had provided me with answers to these mounting questions as they arose, I would not still be searching for those answers today.

CHAPTER 20

During one of my more severe bouts of depression I re-read the Regulator’s COT report and stumbled on information I had missed before. This information related to the Bell Canada International testing and Telstra NEAT testing that had been carried out in November of 1993. In particular it related to Bell Canada’s testing procedures. Page 157 of the Regulator’s report shows that the NEAT testing was carried out by Telstra between eight a.m. and ten p.m. (0800 hours and 2200 hours) between 28^th October and 8^th November of 1993, to the exchange test number at Cape Bridgewater. The BCI test report, dated 10^th November 1993, shows that their testing took place on the same dates and at the same times, except for 9^th November when there was apparently no NEAT testing, but when BCI stated that they carried out some of their tests.

Now, each NEAT test takes up to one hundred seconds and, while it is occurring, no other test of any kind can take place. Obviously the BCI testing could not and did not take place between 28^th October and 8^th November, as it appears in the BCI Addendum Report on Cape Bridgewater however, just for fun, let us assume that somehow all these tests could have been performed at the same time. The BCI tests needed fifteen seconds between each call to reset the system, otherwise the second call would get a false engaged signal and, at the same time the NEAT tests took up to one hundred seconds each. When I examined the test reports from both Telstra and BCI, it was glaringly apparent that there wasn’t enough time between eight a.m. and ten p.m. to fit in anywhere near all the calls that were listed.

The BCI report shows calls made to the same number as the Telstra tests. These two reports indicate that a total of sixteen hundred and seventy-five calls were made from Richmond and three hundred and twenty-eight calls were made from South Yarra, over approximately the same time period without clashing. This, of course is impossible.

Telstra later used parts of the BCI report to prove that their network was operating up to expected standards. The BCI report was even released to the media, as well as being given to Parliament. But it was obviously falsified because the test calls simply couldn’t possibly have been made in the time frame recorded.

Around June 1994 I challenged Telstra to prove that I was wrong in my allegations about the inaccuracies of the BCI report. I had found a copy of a Telstra e-mail (FOI document number A05254), which had been sent to a number of different Telstra officials including a one whose name often popped up in documents I was finding. This e-mail was very significant in relation to the BCI report debacle. It said that the writer had been involved in the preparation of a draft news release and was now raising the

“merits/demerits of holding back the BCI info for a “cleansing” program immediately after the mess of Coopers.”

Then I came across an un-dated Telstra minute titled

“Grade of Service Complaint: Mr Alan Smith …” and it reported, in part: “Congestion between Cape Bridgewater and Portland had been prevalent as only five junctions available. This situation was to be upgraded with the cutover of Cape Bridgewater RAX to an RCM parented back to Portland RAX 104.”

PLEASE NOTE: The RAX and RCM refer to different types of Telstra exchanges.

Once I had these two documents in front of me I reached for the Regulator’s COT report and there, on page 165, at point 7.33, I found:

“Telstra’s more recent assessment of the effect of the Cape Bridgewater RCM fault on Mr Smith’s service not only conflicts with the contemporaneous report quoted in paragraph 7.31 above, but also does not accord with Telstra’s contemporaneous GAPS record for September 1992 which shows a significantly higher complaint rate of ‘call drop out’ and ‘no ring received’ for customers who were reliant on the defective plant than those dependent on the remainder of the Cape Bridgewater RCM.”

It was no wonder I was confused. Even the experts were obviously confused. Was FOI document A05254 from one Telstra worker to another proof of an attempt to ‘cleanse’ an international test report? I struggled to understand. And still my fax line gave trouble. And still the phones played up. I sat and wrote and hoped some of the information I was sending to my advisors and to the arbitrator was actually getting through. The following quotes from two separate government documents demonstrate the problems the fax line was creating. The first document, dated 26^th February 1994, was from the Telecommunication Policy Division of the office of the one of our Members of Parliament, and said, in part:

“Attached are copies of correspondence received by the Hon. … MP, from Alan Smith, outlining FURTHER (my emphasis) difficulties he is having with his telephone and facsimile service.”

The other document, dated 10^th June 1994, was from the Regulator to Telstra’s Group Manager. This document said, in part: “Mr Smith at Cape Bridgewater continues to express concern about his ability to receive and send facsimiles.”

The Regulator continued to be concerned because I was regularly contacting their people with ongoing evidence of incorrect charging to my 1800 account. When I compared my 1800 accounts to Telstra’s printed data records, it was easy to see that I was being incorrectly charged for calls that never connected. I was also forwarding to the Regulator evidence of numerous pages of my faxes which came out at the receiver’s end as blank sheets. And, of course, Telstra charged me for these as if the recipient had received all the information that was NOT on the pages.

As just one example of these problems, we could simply look at what happened the day after I had agreed to abandon the original commercial agreement and sign for arbitration. By this stage in the process I had already discovered this ‘blank fax page’ problem and I had also become aware that these blank pages often had a small, strange symbol at the top of each page; sometimes on the left, sometimes on the right. Each of these pages appeared on my Telstra account as taking minutes to transmit so I decided to time the sending of a blank page. When I finally got the fax to work properly, a blank page took only ten to fifteen seconds to go through. What was even more alarming was that these ‘lost’ faxes were being sent either to my legal advisors or my accountant, or to someone else involved in my commercial assessment process. What did this strange little symbols mean, I wondered?

On 22^nd April 1994 I sent three separate faxes to the Regulator. These were copies of my billing records for the 1800 service, showing comparisons with customers’ statements regarding the calls they had made to my number and proving that the account was incorrect. Now, I had run my own tests with sending a complex document like a Telstra account and I knew that each page would take about anything from one and three-quarters of a minute to two and three-quarters of a minute to go through.

In 2003 the Commonwealth Ombudsman’s office officially handed all my evidence to the TIO’s office. Some of this evidence confirmed this problem with my faxes and also showed that other faxes, which left my premises and arrived as blanks at the other end, looked as if they had arrived with my fax identification in place across the top of each otherwise blank page (as you would expect). The problem was that I discovered that the phone/fax number was one that had been discontinued long before. More puzzling, when the exact same document is faxed to another number immediately after, it arrived with the correct number across the top – so it wasn’t for lack of programming my fax machine with the new number. The TIO has not been able to explain this phenomenon, even though I have been providing him with supporting evidence since 1994.

I would also like to know why the Regulator would write to a Government Minister, during my arbitration, and INCORRECTLY advise him that: “… all six of the telephone services subjected to the verification tests have met or exceeded the requirements established” when they had already informed Telstra’s arbitration liaison officer that the verification tests had not met the required standards? Why didn’t the Regulator advise the Minister of the “… potential existence of 120,000 COT-type customers (complaints)” and, instead, tell him that there were only fifty or so COT-type customers? Could Telstra’s COT liaison officer have forced the Regulator to alter his own findings? As it happens, this Telstra liaison officer is the same worker referred to by a Telstra whistleblower as having influenced and manipulated the release of FOI documents to COT customers by removing or changing clear information on the position of Telstra’s liability. This must raise questions about how much influence Telstra has over the Government Regulator.

Although I have asked again and again, in writing and through various legal processes, I have never received an answer to my questions regarding why these pages should arrive at the other end as blank pages, except for the unexplained symbol. In one instance I sent similar documents to my accountant. When his fax journal print-out was checked against my Telstra accounts they both showed the same amount of excessive time to send and receive the documents, even though they arrived blank.

I told my arbitrator I believed that I was losing faxes in the system somewhere and that he was therefore not receiving everything I was sending to him. In particular I raised one instance, on 23^rd May 1994. In this case Telstra told the arbitrator that the problem had occurred because his fax was busy when my fax was attempting to get through and so my fax simply didn’t go. Whatever happened to my fax hearing a busy signal and trying again? And if my fax reached a busy signal more than once and so gave up trying to send, why was I charged for the call and why didn’t the documents stay in the out tray of the fax? In fact, even though my phone account showed that, on this day, I was charged for seven non-connected calls to the arbitrator’s office, and even though Telstra has since acknowledged this (in camera), still the arbitrator was not interested enough to investigate.

By this stage I began to believe that the whole arbitration had been orchestrated by Telstra simply to thwart an investigation into their questionable corporate conduct. Those discovery documents that did reach me were coming in bits and pieces, small numbers at a time. I was being drip-fed information in a further attempt to disadvantage the preparation of my claim.

Among the material that was being drip-fed to me I found FOI document K01489. This Telstra fax indicates quite clearly that Telstra was well aware of the ‘blank fax’ problem and records their experience with unexplained oddities when testing, particularly the receipt of blank pages which did not even have the sending identification stamp across the top. How many of these unidentified pages did the arbitrator’s office receive when I was attempting to send important claim documents to the arbitrator? And, what would the arbitrator’s office have done with blank sheets? They would have had no way of knowing where the fax had originated, so there would have been no way they could let the sender (whoever that might be) know of the problem. Over the space of three years I had three different fax machines which all apparently ‘suffered’ from this same fault. It seems quite clear that the fault must have been in Telstra’s network and yet still the TIO will not investigate.

Because of the need to be in constant contact with my claim advisors in Queensland, my Telstra account for this period reached more than $16,000 by 11^th May 1995. My home account was another $2,000. What a way for an Australian citizen to have to work in an attempt to prepare a claim against a corporation with armies of lawyers and staff at their finger-tips. In fact, by now, Telstra had set up a special office in their solicitor’s building, just to deal with the COT arbitrations, while the claimants struggled to run the day to day affairs of their respective businesses at the same time that they struggled to prepare their claims, mostly without legal support.

During all this, Telstra knew their 1800 billing and short duration faults were causing problems for the whole country, and still they denied that the faults existed, regardless of the trauma their cover-up was causing me – and many other Australians.

Back in June of 1994 however, I asked the arbitrator for extra time to prepare my claim. He allowed only one extra week and yet, as the records show, Telstra were allowed an extra seventy-two days on top of the original extra six months time already given to them by the arbitrator. Did Telstra deliberately delay supply of discovery documents to gain more time to prepare their defence? Or did they delay supply to give their defence unit more time to go over the discovery documents before my advisors saw them? By this time, why hadn’t the TIO contacted the Minister for Communications and had Telstra pulled into line? How, in the name of justice, were the members of COT ever going to be able to support the claims they were making if Telstra would not provide the discovery documents the COTs were asking for under FOI?

These delays were severely disadvantaging all the COT members: the longer we were kept waiting, the longer our advisors and researchers were kept waiting and the more it cost us to participate in this so-called ‘fast tracked’ procedure. Personally, I began to wonder if Telstra wasn’t working to a plan — a plan to simply send me broke before the arbitration was ever settled.

CHAPTER 21

Just by chance, the American movie “Class Action” was released on video while I was preparing my claim. This was a story about a pharmaceutical company that knew about side effects caused by one of its drugs, but continued to sell the drug anyway. A report had been commissioned by the company and the chemist preparing the report found a flaw in the production of the drug. Now, if my memory serves me right, the parent company chose to ‘lose’ the report rather than spend the money to correct the flaw. What attracted me to this story at the time was the long and drawn out process undertaken by the pharmaceutical company when they released discovery documents to the lawyer representing a group of suffering patients. In the end, the company swamped the lawyer with thousands and thousands of documents at the very last minute so that the lawyer had only a short time to find the missing report. According to the movie, this process of burying important documents amongst numerous irrelevant papers is called ‘dumping’. Shades of Telstra versus COT here!

In my case, another COT member located, among her FOI documents, one of the reports I needed to support my claims regarding rural phone faults: this report had not been forwarded to me by Telstra during my preparation time, when it would have been very useful. It was a report titled “Can We Fix The CAN”. ‘CAN’ stands for ‘Customer Access Network’, which is the line from the exchange to the customer’s premises. This report highlighted numerous alarming facts that had to come to Telstra’s attention during their testing of the CAN. This is the last contact point where a call can be lost but calls can be lost at this point without any faults registering at the exchange end. Even so, when Bell Canada International carried out their original tests in my case, they didn’t test the CAN at all. If I had received this report when I first began to prepare my claim, or even towards the end of the preparation of my claim, I could have raised with the arbitrator many more issues which were never addressed — including instances where a number of other rural Telstra customers were severely disadvantaged due to the ‘poor’ CAN lines.

The very first page of this ‘CAN’ report seems to indicate that Telstra certainly weren’t playing fair with the members of COT in any way and, like the movie “Class Action”, Telstra elected to ‘dump’ approximately twenty-two thousand discovery documents on me (yes, twenty-two thousand!), eleven days after they had submitted their defence, even though they were well aware that I had only one month after the lodgement of their defence in which to reply. This meant I had only just over two weeks to sort through thousands and thousands of pages of information to find the ‘missing link’ which would support my case — evidence which would also prove that Bell Canada didn’t test my phone service as they stated they had in their report; a report which was then used by Telstra to support their defence of my claim. It was Christmas Eve, the busiest period for my business and, with all these documents in front of me, I was lost to know where to even start looking.

The “Can we fix the CAN?” report is so important that I am including here it in its entirety.

“A selected group of staff in New South Wales South and West Region (Consumer and Country Division) have recently conducted an intensive examination and testing process of cables feeding out of eight rural exchanges. The initial aim was to gather information about the real level of transmission related faults, however, the findings create great concern over the degree of DC faults.

With over 350 working services, and as many spare cable pairs tested to date, it can be said that:

25.Any customer beyond the 6.5 dB limit, and thus needing either loading or conditioning is seriously out of transmission specification. Not a single service has been found which is even remotely close to correct.

26.Any service operating on loaded pairs, and terminating in a T200 handset, has serious deficiencies in the sidetone level.

27.Any service connected via a rural distribution cable method has a 70% chance of having a DC fault (earth, foreign battery or, loss between) sufficient enough to significantly degrade the level of service. An additional 20% have DC faults of a less serious degree. That is, 90% of services exhibit either a foreign battery, earth, or loss between fault.

28.Almost 100% of rural elevated Joints (EJ) exhibit a multitude of DC faults caused by poor work standards.

29.Unless a new customer is within a few hundred metres from the exchange, it is impossible to find a totally fault free spare pair to use. That is, the fault rate on spare pairs is even higher than on working services.

30.Many lengths of cable are being replaced without justification.

31.Faults are not being repaired at all – the service restoration method is to transpose around the problem. This applies to faults in joints as well as cable lengths.

32.There is a zero level of field staff understanding of transmission testing techniques and operating principles.

33.Modern testing equipment, whilst being adequately supplied, is only being used by a minority of staff. And even then, in limited variety and circ*mstance.

34.Lightning strikes are being encouraged by our own actions. Our focus is on quickly getting to the fault rather than preventing the fault. As a result we are ensuring that we get hit by lightning far more often.

(This document was hand numbered as 101043)

Clearly Telstra was fully aware of the many problems encountered by their rural customers!

Over Christmas, twelve months after I had originally asked for documents from Telstra, I ploughed through what I could of this latest batch of papers, uncovering (too late) a number of documents which would have been most useful to my technical advisor, and to me, when we were preparing my interim claim. Again I asked myself, did Telstra deliberately withhold this information? The arbitrator had a charter, as the ‘judge’ in this matter, to facilitate provision of requested documents, but even though I continually asked him to do this for me, none of my requests were fulfilled. I believe he never passed on any of my requests but, at the same time, he directed me to provide some forty extra documents and numerous pages of attachments and further particulars which Telstra had requested through him. These requests to me were made under the same discovery process I had used to request documents from Telstra. I complied on every single occasion, incurring costs that ran into thousands of dollars but, in return, I received nothing from the arbitrator or Telstra. At the same time I began to feel more and more concerned that something was very wrong with this whole process. Were Telstra and their highly paid lawyers deliberately setting out to destroy me financially before I had even finished my submission?

An oral hearing had been convened for 11^th October 1994, under the rules of the arbitration. These rules allowed me to have legal representation if Telstra had legal representation, but where would I find the money to pay a lawyer, particularly a lawyer who wouldn’t buckle under the power of a corporation as huge as Telstra? By this stage I had discovered that at least forty-three of Australia’s largest legal firms were, at that time, on the payroll of Telstra in one way or another. This meant that all forty-three of those companies were not available to me or to any of the COT members because they would be caught in a conflict of interest situation if they took up our cases. In the August before this oral hearing, already five months into the arbitration process, I had also been informed by the TIO, who was acting as administrator to the arbitration, that the arbitrator himself was a senior partner in a legal firm which was also working for Telstra at the same time. Although I raised the issue of conflict of interest, the TIO disagreed, saying that I should just confirm, in writing, that I had been informed of this situation. What could I do? By this time I had run up bills with advisors and secretarial assistants to the tune of $150,000. How could I then demand a new arbitrator be appointed, only to have to start the whole process over again? Obviously the administrator’s approach was months too late since I had already submitted my interim claim two months before he made his announcement about the arbitrator.

At that stage, I felt I had no choice but to continue with the arbitration procedure and no choice but to participate in the oral hearing. Now, the arbitration rules stated that there were to be no lawyers at oral hearings unless both parties had legal representation. The arbitrator advised me that Telstra would not have a lawyer with them, so I went to the meeting believing that this would, more or less, be a meeting of equals. I could not know in advance how wrong I was — obviously the rules can be flaunted if you have enough power.

The drive from Cape Bridgewater to Melbourne took five hours and, since the meeting was set to start at ten in the morning, I set out at four a.m. to allow for unforseen delays along the way, so, by the time the meeting actually started, I was already exhausted. What I was not ready for was the sight of two of Telstra’s top executives on Telstra’s side of the table, both men with legal training. And, not only did Telstra have these two legal minds on their side, they also had two representatives from Ferrier Hodgson Corporate Advisory, the independent financial advisors to the arbitration. Again I was in the position of a David up against the Goliath of Telstra, with no-one at all to support me.

During this hearing I produced four exercise books of records and asked to have them accepted into the procedure. These exercise books contained the names and contact information of clients who had not been able to reach my business by phone. This was important information, proving as it did that I had not been able to set up the over-forties singles club I had advertised, because of the phone problems. I had not submitted these books before, as part of my claim, because, as I explained to the arbitrator, the information had been given to me in confidence. I hoped that, by submitting them directly into the care of the arbitrator, the sensitive information contained in them would be secure.

On the day, however, Telstra insisted that the information was not relevant and should therefore not be accepted into evidence. The arbitrator went with Telstra’s suggestion and I was not allowed to submit the four books, even though the information they contained proved conclusively that not only had I lost business calls as a direct result of a faulty phone service, but I had also missed out on the opportunity to set up a singles club which would have been another business to augment my income and keep the camp going. It was at this point that I finally admitted to myself that the arbitrator was not acting impartially.

By the time Telstra lodged their defence of my claim, on 12^th December 1994, I had been fighting for justice for six and a half years. Fighting a losing battle, not because of anything I had done, but simply because I chose to set up business in a rural hamlet which Telstra’s senior board members saw no benefit in upgrading. In this time I had lost a wife of twenty years, who had trusted my judgement that I could create a successful business at Cape Bridgewater, and my next partner had finished up in hospital after also trusting my judgement. The oral hearing made me realise I was truly on my own in this: even the arbitrator couldn’t be relied on to be independent. The other COT members had not been at the oral hearing and so I warned them of what I had discovered, but they couldn’t really comprehend the gravity of the situation for us all. As it turned out, my gut feelings were correct: we had been conned by the TIO’s office. The Senate had also been conned by the TIO’s office as it turned out: the TIO’s office had also assured them that this would be a non-legalistic process.

Between 11^th October 1994, the day of the oral hearing, and 12^th December 1994, the day Telstra lodged their defence of my claim, I continued to search through all the claim material I now had, looking for something to help me improve my position, hoping to find the illusive discovery documents I needed. At the same time I became even more aware of what an enormous toll this was having on my life as well as my business. I was suffering from frequent dizzy spells and stress-related pains; I couldn’t swallow comfortably and continually felt as if there was a lump in my chest.

From the very beginning Telstra denied there was anything wrong with my phone lines. But now, although logically I was sure I was right, I began to have moments where I doubted my own sanity. Not only was my health suffering but so was the health of all those in the small group who continued to support me.

It was at this low point when a letter of support arrived from a local farmer and businessman, stating that it was quite clear to him that the phone system was a disaster area. He referred to problems he had with the system going back six years. He had written this letter in June of 1994 and six years before took me back to the time I first moved into the area. So here was someone else agreeing that the phones were not always reliable and that they were certainly not up to network standard.

Another incident which spurred me to keep fighting concerns a neighbour who had taken over the next door property after I moved to Cape Bridgewater and, when my claim advisor was researching the phones in the areas, my neighbour wrote of his experiences with the phones:

“I reported the faults many times to Telstra”, he wrote, “to no avail. I telephoned Alan Smith and obtained the Melbourne telephone number to ring. Having rung that number I was informed that my number … was not a business number.

I have questioned my telephone account on several occasions but have no option but to pay as no further account was provided.”

He went on to say:

“Telstra service is extremely poor at time of reporting this fault to Melbourne. Shearers were engaged and I could not inform them whether sheep were dry - nobody can run a business where phone only works intermittently or is supposedly fixed on many occasions.”

With regard to the shearing incident that is referred to, my neighbour was forced to drive some considerable distance from another property to speak to his son who was at the homestead, because he could not reach him on the phone.

On a number of occasions during this period I continued to question Telstra. How, I asked, did they make their calculations for my phone account? My bills were like a yoyo - up one month and down another. My only tool was to refuse to pay the disputed account until they had been investigated but when I didn’t pay, Telstra disconnected my service!

CHAPTER 22

These letters from various locals, along with many similar letters, were all submitted into arbitration for assessment and yet the report produced by the so-called ‘independent’ technical unit clearly stated that “...a comprehensive log of Mr Smith’s complaints does not appear to exist.” The fact that I had also submitted a list of one hundred and eighty-three separate faults, which had occurred between late 1989 and early 1994, seemed to be of no consequence. Most of the entries on this list included the names and addresses of the people who had registered complaints with me. I also submitted copies of another forty-two examples of faults that had been logged by Telstra’s own three fault centres in one eight-month period alone, from January to August in 1993. As an added bonus, I included more than seventy letters that I had received from people over the years, letters describing difficulties in reaching me by phone. Some of these letters were even written by Telstra’s own employees who had felt compelled to tell the truth about what they knew of my phone problems. This made no difference because the arbitration’s technical resource unit indicated later that these documents were not given to them by the arbitrator for assessment.

The letters from Telstra employees prompted me to contact Telstra union officials and explain that my complaint was not with individual, everyday technicians but was rather with the corporate management level. It was obviously senior people in the organisation who were creating problems by refusing to correctly address the constant complaints from the Cape Bridgewater area. Apparently they believed that, by ignoring these complaints, they would save money. And these complaints weren’t only coming from Cape Bridgewater and other rural areas; many complaints were being lodged from metropolitan exchange areas too. Clearly, until Telstra management addressed the corporate culture of their own organisation, the list of complaints would continue to grow.

During his time as Minister for Communications, a Labor Party Senator showed his concern with the way Telstra’s Protective Services Unit spied on their own technicians and other employees, documenting their movements while they were on sick leave, so it was not surprising that the COT members believed they also were being spied on. The Protective Services Unit has still not provided any explanation of some of the information they appeared to pluck from thin air: they have never explained how they knew in advance what my movements were, and they have never explained how they knew when my staff left my office.

One instance of Telstra’s apparent ability to read ‘between the lines’ relates to a bus company I was planning to tender to. I had written to Telstra asking for a guarantee that the phone network would work correctly, so I could assure the bus company that they would be able to reach me to place bookings. I wrote this letter to Telstra without ever mentioning the name of the bus company I was tendering to but, in 1994, among documents sent in response to one of my FOI requests, I found a copy of my own letter with the company name scrawled across the top of it. Were Telstra intercepting my mail? Or were they listening to my phone conversations? Or both? Whatever devious method they used to acquire this information, the issue is that this was spying, way back in 1992, long before the arbitration process began in April 1994. And this is only one example of the spying that took place, others will unfold as my story continues, but the issue of spying on customers was a major factor in my decision to publish this story. Someone has to expose Telstra’s power and alert the Australian public to the way Telstra manipulated the legal system. These issues of an individual’s right to privacy and a corporation’s manipulation of the system go to the very core of Australian democracy.

Documents later acquired under FOI, and then provided to the Australian Federal Police, show that Telstra officers also made a habit of documenting private and business calls I received. This documentation included the names of the people who called me: my wife, my son, the Regulator and the TIO’s office. Was nothing ever private during this saga?

CHAPTER 23

Earlier I related the story of how one of the Regulator’s engineers helped me test two different model T200 phones on the one line, in an effort to find out if the ‘lock-up’ fault I had been experiencing was being caused by the phone or the phone line. These ‘lock-ups’ had meant that people on the other end of the phone could hear what was going on in my office after I had hung up. When we had completed these tests, the engineer was quite adamant that we had proved that the fault was in the line because it occurred with both phones. Documents which I later acquired also showed that Telstra was aware that this fault often occurred in moisture-prone areas like Cape Bridgewater, and that they were also aware that the local exchange suffered from ‘heat problems’. Now, when I received my copy of Telstra’s defence of my claims, I found that it included a twenty-nine-page report titled “T200”. This document reported that, as a result of testing in Telstra’s laboratories, it was clear that the ‘lock-up’ problem with my T200 phone had been caused by beer that had been found inside the casing of the phone.

My phone was removed on 27^th April 1994, but did not arrive at Telstra’s laboratories until 10^th May 1994, some twelve days later and, according to photographs included in this report, the outside of the phone was very dirty when it arrived. According to the technicians, when they opened the phone up, the inside was wet and sticky. Analysis of the ‘wet and sticky’ substance showed that it was beer and the conclusion was that the ‘beer’ had caused the ‘hookswitch’ to lock up. The natural inference here was, of course, that my drinking habits were the cause of all my phone problems. The technicians didn’t know of course that I had tested two different phones on that line and still found the same fault.

A number of questions were immediately raised by this report. When the phone left my office it was quite clean — why did it arrive at the laboratories in such a filthy state? How did the ‘beer’ get inside the phone? Who would have a reason to pour ‘beer’ into the phone and why? If the addition of ‘beer’ was not deliberate, how did it get inside the phone? It certainly wasn’t even accidentally spilt there by me since I only rarely drink beer, and then only when I am out socially. I usually only drink Scotch or wine because of a medical problem which means gassy drinks, like beer, create acute discomfort for me.

As soon as I read this ‘beer-in-the-phone’ report I put in a request to the arbitrator, asking to see a copy of all the laboratory technician’s hand-written notes so I could see how they actually arrived at their conclusion. I had appointed my own forensic document researcher to look over the documents when I received them and he had provided me with his credentials, as well as signing a confidentiality agreement, stating that he would not disclose his findings to anyone else. Although I passed all this on to the arbitrator, the only response I received was another copy of the original report.

This lack of assistance from the arbitrator is even more shocking because, only a few weeks before, he had allowed Telstra’s forensic document researcher to have access to my personal diaries. It seems there was one rule for Telstra and a different rule for the COT claimants. My gut feeling after the oral hearing in October 1994 was looking more and more to be correct. The arbitrator was definitely favouring Telstra; allowing them access to whatever information they requested but denying me the same access to information I needed.

I cannot begin to explain the anger that simmered inside me. If only I could expose the lengths Telstra had gone to with this ‘beer-in-the-phone’ episode. I knew they had faked the evidence but I couldn’t prove it. What else would they do to defend their faulty phone network? It didn’t seem to matter who I contacted about this fax line — Senators, the arbitrator himself, the arbitrator’s secretary, no-one cared about the truth. It seemed that Telstra management would do anything in their power to prove that there was nothing wrong with the phone lines into my business.

As explained in Chapter 20, during the period when I was having the most trouble with sending and receiving faxes I actually alerted the arbitrator to the problems I was having and the arbitrator’s secretary later acknowledged that she did not receive a number of faxes from me during my arbitration. Still I was charged by Telstra for all the faxes that left my office, hopefully heading for the arbitrator’s office even though, on a number of occasions, they never arrived there. Telstra’s own records show, in fact, that some of these faxes never arrived at their intended destination. Where had they vanished to? My frustration increased when I then found that all these fax faults were supposed to have been caused by ‘beer’ which I knew, without any doubt, could not have been spilt inside the phone before the Telstra technician removed it from my office for testing.

I set about accessing Telstra’s technical analysis data covering particular times when the fax problem was at its worst. These documents showed that the ‘lock-up’ fault had been occurring in the network system since at least August 1993. This led me to ask the arbitrator to ask Telstra how ‘beer’ could stay wet and sticky inside my phone not only for the twelve days between when the phone left me and when the technicians opened it up, but also from August 1993 to May 1994.

Telstra had supplied a new phone to replace the ‘drunken’ one they took away and, surprise, surprise, according to their own data, the same ten to fifteen second lock-up problem was still apparent right through to June 1994, five weeks after the ‘drunken’ phone was removed and replaced. Perhaps the phone line itself was ‘under the influence’? What a sad episode for a company of such standing in the community. How desperate must they have been to resort to such skulduggery when they were only defending themselves against one broken-down cook and camp operator. Sad indeed.

In Telstra’s defence of my arbitration they also state that this telephone was received at their laboratories in a very dirty condition. Of course, this is not the truth either. The phone was certainly not ‘in a very dirty condition’ when it left my premises. Before the technician took the phone away for testing, we both used a nail to scratch our names in the (clean) cradle where the receiver sits. Much later, in a copy of Telstra’s report on this phone, I came across a photo that was supposed to be of my phone as it was when it arrived at Telstra’s laboratory – with a thick layer of dirt OVER the inscribed signatures. It certainly makes me wonder what lengths Telstra will go to, in order to discredit me.

Neither Telstra nor the TIO have explained how all this dirt and grease appeared OVER our signatures. When the technician collected this phone from my business, if it was as dirty and greasy as it is in this photo, then our signatures would be indented INTO the dirt rather than covered BY the dirt. I also have to ask, if the phone was that dirty, wouldn’t both the technician and I have automatically wiped away the dirt BEFORE we engraved our names on the phone?

These are just some of many unanswered questions I have raised with the Government over the years. How can they continue to protect Telstra when they have this evidence of such unlawful conduct? The Government is fully aware that tampering with evidence in a legal process is a criminal act. First we have dirt and grease splattered on a clean telephone and then we have beer poured into the phone: how sad this has all become.

Six months after my arbitration I received Telstra FOI documents A64535 and A64559. These documents show that testing was conducted on my telephone on 26^th May 1994, not 10^th and 12^th May 1994 as is stated in the report, and include handwritten notes, made by someone inside Telstra, reporting that beer residue dried overnight on 26^th May, when they tested it in Telstra laboratories. I believe this confirms my suspicions that the beer was put inside the phone by someone inside Telstra, after the phone had been removed from my premises.

Other Telstra FOI documents show that the local Telstra technician who collected the phone tested it eighteen times before he sent it on to the laboratory – but found nothing wrong with it.

CHAPTER 24

There were many, many other misleading statements made under oath by Telstra’s defence unit and their technicians which are too numerous to bother with here but most disturbing were the signed Statutory Declarations made by some of the local technicians. Even though they knew at the time that Telstra’s network system into the local exchange was not up to standard, they signed these legal documents, blatantly ignoring the problems and insisting that everything had been all right during the period covered by my claim, except for some minor, every-day type faults.

Some of these signed statements would almost have been laughable, if the situation hadn’t been so serious. One local technician even went so far as to say he knew of no other business in the Cape Bridgewater area who had experienced the type and number of phone problems that I had reported. This statement included the comment that the technician had a friend, a stock farm agent, who lived at Cape Bridgewater, and he had never had phone problems when he lived in Cape Bridgewater. When I checked Telstra’s own fault data, however, lo and behold, this very friend had, in fact, complained seven times in a matter of weeks during early 1994, including complaints about his fax line.

Further, between 1988 and 1993, I was the only tourist operator in Cape Bridgewater: the other residents were fisherman and farmers who did not generate any tourist activity in the area and so were not so reliant on the telephone as I was, particularly for calls outside the local area.

Another set of incorrect statements was lodged by three local technicians who were in charge of my service complaints. These men stated under oath that the original (old) exchange at Cape Bridgewater, back in 1988 when I moved to the area, had five incoming and five outgoing lines when, it was later proved, this old exchange actually only had four incoming and four outgoing lines. One of these technicians went so far as to state that any congestion caused by this ‘five in and five out’ situation would not have affected my service much during business hours. All my calls pass through the Portland exchange before travelling on to their destination and, as we now know from Telstra’s own archival documents, Telstra secretly knew that congestion was prevalent between the Cape Bridgewater and Portland exchanges.

The saddest thing about the statements from these three technicians is that, if they truly believed that this old exchange had five lines in and five lines out then surely they were not doing their jobs properly. Surely one of them would have noticed that there were only eight lines in all, not ten. In real technical terms ten lines will carry 41% more traffic than eight lines.

The Federal Police were showing more interest in the many issues I had raised with the Regulator and finally they came to interview me again. My friend, Cathy, operated the phones in the office for five hours while the police taped their interview with me. During this five hour period Cathy experienced a number of incoming phone faults — with the phone alarm bell ringing (two rings, stop, one ring, stop — then a dead line). The visiting Federal police could see for themselves what was happening. Cathy then made her own Statutory Declaration, telling the police about a survey I had distributed some months before, back in late 1993, through the Ballarat Courier Newspaper. I had experienced an enormous number of complaints from the Ballarat region after I advertised my singles club project and this survey was taken to prompt people to write to me with their own experiences with phone faults in their area. I asked newspaper readers to send their complaints to me, care of the newspaper, and Cathy (who was living in the area at the time) had agreed to collect the mail for me. The issue with this survey, which Cathy thought important enough to include in her Statutory Declaration, relates to collection of this mail. On two separate occasions Cathy phoned the paper and was told that, yes, there was mail waiting for her to collect for me but, when she arrived at the newspaper’s office, that mail had mysteriously vanished. Who had collected our mail and why would the results of this survey be so interesting to someone else? What did they intend to do with the survey results?

CHAPTER 25

When I originally signed for arbitration, the TIO had confirmed that all the rules and regulations included in the original commercial agreement would remain in place. These rules had included a confidentiality agreement stating that none of the claimants could ever disclose the value of their award, if an award was made. Remember, the COT four signed for arbitration under severe duress, believing that we had no other alternative and because we were all running out of money to finance our fight for justice.

Once I had read Telstra’s defence documents I realised Telstra had not addressed the billing faults I had included in my written claim and raised at the oral hearing. At the oral hearing, the arbitrator had actually said that, if I left the phone interception (bugging) in my claim it would definitely be addressed and yet Telstra hadn’t defended the phone bugging issue either. What was going on?

I had already provided the TIO and the arbitrator with evidence of the way Telstra had altered FOI documents and re-arranged information on faxes in an attempt to minimise their liability but, unbeknown to me at the time, a Telstra whistle-blower had written to the Government on 13^th October 1994, alerting them to the altering of COT FOI documents he had witnessed. He actually accused Telstra management of taking an “… unprofessional adversarial approach towards customers …” and deceiving and lying to other customers. He listed what he called “… three main areas where senior executive have sought to influence and manipulate…” These were removing or changing clear information on the position of Telstra’s liability; diminishing the level of compensation payable to COT customers; and being dismissive of breaches of customers’ privacy.

Under the rules of the arbitration, the COT claimants should have been given a copy of this letter. Why was this rule ignored? Once the Commonwealth Ombudsman’s office had written to Telstra’s CEO about documents that Telstra had provided with so much information blacked out that they were practically useless (with a copy of the letter sent to the arbitrator and the TIO) why wasn’t my arbitration halted immediately?

Because of the unlawful conduct of the arbitrator and Telstra, and the conspiracy between them, I have now broken my silence because I believe strongly in the legal rights of all Australians. I also believe strongly that we should all respect the law but, after everything I have suffered over these past years, I no longer believe that our Australian legal system will necessarily ensure justice for all. The COT arbitrations have been a farce and therefore the rules, drawn up ostensibly to ensure justice, are also a farce.

Christmas 1994 slid past in a blur and I found myself into the new year of 1995 with only two weeks left in which to submit my reply to Telstra’s defence, and thousands and thousands of discovery documents to sort through. Once again the stress was getting to me and my health was deteriorating fast. Not only was this affecting the preparation of my response, it was seriously damaging the running of my business. The festive season is always the busiest for bookings of course, but I was then averaging debilitating giddiness attacks about twice a week. Fortunately Cathy had, by this time, moved into the camp house. Without her assistance I would never have survived through this time.

The Queensland detective came back to Cape Bridgewater for a brief stopover and together we worked through New Year’s Eve while Cathy went with her sister and brother-in-law to see in the New Year in Portland. Some time after 1.30 on the morning of the first of January, while the detective and I were still labouring over my reply, the troops arrived back from their celebrations, armed with a bottle of Scotch and a bottle of Port. After all the hard work and long hours we had put in over the past two days, a couple of drinks saw the detective and me out like lights. The following day he flew back home.

February saw the camp fairly heavily booked, thank goodness. The year seven co-ordinator for Hamilton High School (now Bainbridge College) brought his group along, as he had every year from 1990 until 2003. Even with major problems contacting me on many occasions, he is still a regular customer. His support, and that of many other regular customers, has played a big part in keeping me going through the worst times.

After being here in the February, and because he had experienced problems reaching me by phone from his very first contact, back in 1990, when he returned to school the co-ordinator wrote, describing his continuing concerns about not being able to contact the camp by phone. In part of this letter he states: “I wish to acknowledge in writing the repeated difficulty I have had contacting Alan Smith at the Cape Bridgewater convention centre by telephone. In the week March 1st to 5th I made 5 or 6 attempted phone calls to Alan but I was unable to get through, indeed the line was ‘dead’. This was extremely frustrating and had I not been aware of Alan’s phone problems, I would have used another camp site.”

This group had stayed for a full five days, following closely on the heels of a group from the Birchip Community Centre, who have come regularly since 1988. My records from this month show that members of the Birchip group continually complained that my coin-operated gold phone, installed for the campers use, was ‘always on the blink’.

The group left on a Friday and Lake Bolac Secondary College were due the following Monday and now I was even closer to running out of time to send in any further supporting claim material. I felt like everything was conspiring against me. In 2002 I received a document from the TIO which confirms that the arbitration project manager wrote to the TIO on 18^th April 1995, noting that: “It is unfortunate that there have been forces at work collectively beyond our reasonable control that have delayed us in undertaking our work.” This letter was copied on to the arbitrator and the TIO’s Legal Counsel. Again we must ask, why wasn’t the arbitration stopped immediately? Why did no-one ask who the ‘forces’ were who were stopping the project manager from properly doing his work? Did this have something to do with the allegations made by the Telstra whistleblower regarding Telstra officials altering documents to minimise Telstra’s liability?

Of course, the main part of the problem, and the part that the TIO’s office never seemed to grasp, was that I wasn’t just ‘running’ my business; I was also working in my business, supported only by part-time staff. How could I successfully prepare such a complicated claim and response during the busiest period of the year for my business (November to May)?

If I had only had a reliable phone service from the very beginning I would, by now, have been in a position to hire at least three full-time staff, supported by daily, part-time waitresses. But since I was not in this position I had very little time available to even think about my claim against Telstra. I certainly had very little time available to prepare the claim and the consequential losses continued to mount: all because Telstra would not admit that the phone service was totally outdated and not coping with the volume of calls. I could not believe the position the COTs now found themselves in, through no fault of their own: a handful of small-business people pitting their wits against the legal minds of some of the largest corporations in the country.

Again and again I was faced with the same tactics. Every request I made of the arbitrator continued to bring a roar of silence — certainly no documentation appeared. Worn out and frustrated, my irritation with the arbitrator grew more intense each day.

On 23^rd January 1995, in response to an earlier letter which I had sent on 13^th January 1995 to the arbitrator, asking for information about the Bell Canada report and how they arrived at their findings, I finally received a response in which the arbitrator noted that “Telstra does not consider it has any further information of relevance in its possession.” The arbitrator goes on to ask me to respond to this comment within twenty-four hours in order to “be certain that there is no confusion between the parties as to the documentation which is being sought.” As requested, I responded the following day. My fax account shows that this two-page response left my office and took two minutes and nineteen seconds to travel to the arbitrator’s fax. This length of time indicates that there were indeed two pages as most faxes take about a minute per page to transmit successfully.

According to the rules of the arbitration, all documents sent to the arbitrator must be copied on to the other party by the arbitrator (in this case, of course, that other party is Telstra).

Twelve months after my arbitration procedure was completed, through the persistence and support of the Commonwealth Ombudsman’s Office and under FOI, I was provided with information that showed that Telstra did not receive my response of 24^th January 1995, which had been faxed to the arbitrator. There were also another forty-two claim documents, which had been sent via fax at other times, which, according to their records, never reached Telstra’s defence unit, even though my fax account indicates that they reached the arbitrator’s office.

In further relation to the Bell Canada report and the tests they allegedly carried out at Cape Bridgewater, another similar FOI document, N00040, indicates the importance of my persistent requests for data proving that the Bell Canada tests were done on the days shown in their report.

This document, dated 20^th June 1994, clearly shows that there is an error in the tests from Richmond to the Cape Bridgewater exchange as detailed in the BCI original report. Unfortunately, I did not receive this document until three years after my arbitration had been completed. It was supplied at that time by another COT member.

Three weeks after my arbitration had been completed and my appeal time had totally expired I received three more FOI documents (N00005, N00006 and N00037). Document N00005, dated 6^th September 1994, from Telstra to Bell Canada, states, in the second paragraph:

“Specifically, the start and finish times for the test run from Richmond digital exchange (RCMX), test line 03 428 8974, to Portland exchange, Cape Bridgewater RCM (CBWR) number range, test line 055 267 211, (detailed in section 15.23 of the report) are impracticable. The number of calls made during the test run could not have been completed within the time span shown and the test run would have clashed with other test runs performed within those times”

and document N00037, an internal Telstra e-mail headed

“Smith’s Query on BCI Tests”, states, in part: “Mr Smith is correct in the suggestion implied in his query that the test results recorded in the ‘Addendum - Additional Tests’ part of the BCI report to Telecom, 1 November 1993, are impracticable.”

Further information relating to the BCI report came to hand much later. A copy of a report from Hansard, detailing discussions which took place in the Senate on 26^th September 1997 was forwarded to me late in August of 1999. This report indicates quite clearly that Telstra misled the Senate in regard to the BCI report.

At this time I was seriously concerned that, since my phone faults continued even after my settlement in December 1992, the same thing would happen again and I raised the issue with the Regulator. I had already refuted the results of the Bell Canada tests with the Regulator and finally Telstra visited my premises to conduct what they called ‘verification testing’ and provide the results to the arbitrator and the Regulator.

On the day that Telstra began their testing process both Cathy and I sent Statutory Declarations to the arbitrator because we believed the tests had not been conducted correctly. In early October 1994, also wrote to Telstra’s arbitration defence counsel (twice) regarding these concerns. The arbitrator did not reply but Telstra stated in their later defence that all the tests they conducted at my business that day not only met the Regulator’s specifications – they exceeded them. This Telstra report (B004) was covered by a Statutory Declaration signed by one of the officers who had previously been advised by the Regulator that the tests carried out at my business were deficient. This worker who conducted the tests had also been advised of the deficiencies by the Regulator but was apparently still happy to sign a Witness Statement, under oath and in front of a Solicitor, stating that the tests HAD met the required standards.

An even more serious result of this cover-up plot became obvious when the TIO-appointed technical resource unit advised the arbitrator, in their technical report of 20^th April 1995, that they stopped their investigation of my claim documents at the end of August 1994 – I believe because they believed the two signed and sworn statements provided by Telstra which claimed that my phone service was fault free.

In February 1995, two arbitration project advisors visited my business, along with a representative from Telstra, to assess my financial losses resulting from the phone difficulties I had been suffering. Under the rules of the arbitration, neither the resource unit, the technical advisory unit or FHCA were allowed to be alone with either Telstra or with me but there was not much we could do about the two hour delay between the time FHCA arrived and the time Telstra arrived, except for FHCA’s solitary inspection of the general area. When the Telstra representative finally arrived we first visited a number of locations around Cape Bridgewater and it was then that I began to recognise FHCA’s true colours: everything I said was ignored or negated. FHCA, it seems, already had fixed ideas about this case.

Perhaps it was my early years at sea as a fifteen-year-old, perhaps I was just being ‘streetwise’, but whatever you like to call it, I was not going to ignore my feelings again. FHCA’s attitude, and the way they played down my business in front of the Telstra representative, was a clear indication of what was to come.

Bearing in mind that FHCA and Telstra were not supposed to spend time together without including me, and being aware that I couldn’t leave the camp site because a group were in residence and besides, this being the holiday period, there was always the chance that passing tourists might want a bed for the night, I had arranged lunch at the camp. Cathy had brought fresh bread rolls in town and I provided fresh pasta and salad with three different cold meats. My offer of lunch was, however, declined and the others all adjourned to the Kiosk by the beach, totally in opposition to the rules of the arbitration. And what I could I do?

They all returned later, but then stayed only another fifteen minutes before leaving for Melbourne. I tried to introduce evidence which supported my position but what I was not aware of was an arbitration procedure rule which means that late information, if not considered relevant, will usually not be accepted into evidence by the arbitrator. In my case, much of the information I was receiving from Telstra under the discovery process (in the form of FOI documents) was arriving months after my original requests were lodged. Part of the information I attempted to introduce a this stage included copies of brochures and other information obtained from businesses similar to the business I had hoped to build here; businesses which provided a guest-house set-up for weekend getaways. A number of professionals in the tourist industry are convinced that my situation, right by the sea, would be ideal for this kind of business but, after all the energy I had spent just fighting for a decent phone system, I didn’t have the energy and enthusiasm I once had, nor did I have the will to struggle any more, particularly when I looked back at the ruined lives scattered along the road behind me.

Anyway, although the brochures and other documents that I gave to FHCA on this day were not accepted into the arbitration process, I have never set eyes on this information again, not even when some of my claim material was finally returned to me after the arbitrator had handed down his findings.

It wasn’t until 2002 that I discovered that FHCA had written to the arbitrator eighteen months after the so-called ‘completion’ of my arbitration, admitting that they had withheld from the Regulator a number of letters from Telstra to the arbitrator regarding the 1800 faults. These letters show that Telstra intended to address the 1800 short duration calls as part of their defence of my claims. FHCA knowingly disadvantaged my claim by withholding these documents from the arbitrator and me – I had no opportunity to ask why Telstra didn’t address the faults after all. By avoiding these faults, Telstra could continue to wrongly charge me for another two years.

CHAPTER 26

With most of my days taken up with camp duties during this holiday period, I only had the evenings to work on my final claim material. Before I had come anywhere near completion of the collation of the first twenty thousand documents that had arrived after Telstra lodged their defence, more had been delivered. With all this paperwork where was I to find enough space to sort them out so I could refer back and forth among them? The Australian public purse might well have been paying Telstra’s legal bill but I wasn’t getting any support at all: I couldn’t even afford to hire a law student to help. And all any of us in the COT group were trying to do was achieve simple justice for ourselves and, at the same time, alert the Australian public to the cover-up being orchestrated by Telstra. Telstra just seemed to be doing anything they could to stop us.

Now, well into 1995, I was still struggling with the enormous task of attempting to collate all the FOI documents I was receiving, so late into the process, into some sort of sensible order. Because it seemed to me, with my lack of experience in legal matters, that the arbitrator was not accepting any more material in support of my claim, I believed I could not lodge these documents as further evidence, even though Telstra’s technical data sheets, when compared to my Telstra accounts, showed clearly that I was still being charged for calls which never connected. Instead I phoned the arbitrator to ask for another oral hearing. I wanted to ask the technical resource unit how best to lay out all this evidence; I was concerned that, because of my lack of technical expertise, they might not understand what I was trying to show. During this phone conversation with the arbitrator I explained that I now owed my technical advisor $25,000 and could not afford to continue to run up any more expense.

The arbitrator advised me to continue working as I had been because the technical resource unit would be visiting Cape Bridgewater shortly and they could discuss the presentation of my material with me then. Before that visit occurred however, the technical resource unit, an Australian company with a high reputation in the telecommunications industry, pulled out of the process because Telstra offered them valuable contracts and they saw a conflict of interest. This situation raises two questions: Did Telstra deliberately set up this ‘conflict of interest’ situation? And, how could the Australian company pull out of a signed contract?

A new technical unit, run by a man who had previously worked for Telstra for twenty years, was commissioned by the TIO’s office. Eleven months down the track and now we are told there’s a whole new ball-game, a new resource unit is to assess our claims and, to add insult to injury, an ex-Telstra employee is to be the main player. Ann, Graham and I made it quite clear to the TIO that we were not happy about this and so a Canadian Telecommunications Company was brought in to the process to alleviate our fears.

The TIO advised, in writing, that the new ex-Telstra run Australian company would only assist the Canadians but, as it turned out, the Australians actually did most of the assessments. This was not according to the written agreement forwarded to me by the TIO: once more it seems that the TIO had misled me before I signed for arbitration. All this on top of having to cope with an arbitrator who was a partner in a law firm which was doing contract work for Telstra. It was almost too much to bear. I felt as if the whole world was ganging up on me, as if the whole world supported Telstra and no-one cared what happened to the COT four. Surely it couldn’t get any worse? But it did.

As April 1995 rolled around, even more tricks of the justice trade were unearthed. On the 6^th April a Telstra official arrived at the camp and we then collected a representative from the new technical unit from the airport. Together the three of us inspected the exchanges at Cape Bridgewater and Portland and had discussions with the local technician (the one with the stock farm agent friend who apparently never had problems with his phone - until I uncovered the agent’s complaint records).

By this stage in the process I had found a number of documents pertaining to congestion at the local exchanges. One of these FOI documents, numbered K01003 and dated 7^th April 1994, twelve months earlier, stated: “At 4.55 pm on 6/4/94 I was informed by Network Ops that the route into the Portland exchange would be increased by 30%. The work was to be completed prior to midnight that day. This should alleviate any problems Mr Smith or anyone else in the area has been experiencing with congestion into the area for some time.”

Another, titled

“Cape Bridgewater COT”, and dated April 6^th 1994, stated: “Following previous lost call analysis of the Z route between Warrnambool node and Portland AXE - R (PORX) it was decided to increment this route from 30 to 60 CCTS.

I have reiterated to all parties concerned the importance of getting this project done ASAP.

Could you please ‘fast track’ this project due to the sensitivity of the current COT case at Cape Bridgewater (off PORX).”

The reference to an increase from “30 to 60 CCTS” refers to an extra thirty circuits into Portland. This was a 100% increase in the phone route (which therefore would create a decrease in congestion) into Portland exchange, not 30% as reported in Telstra’s FOI document K01003. To the credit of the people from the new technical unit, when we arrived at the Portland exchange, it was clear to them that Telstra had under-estimated this decrease in congestion by 70%. The Telstra officers on duty at the Portland exchange at the time seemed a touch embarrassed at the error uncovered. These technicians were not aware of a phone call that I had received the previous month, from Telstra’s CEO. Why would the top man in such a large organisation take the time to phone a small holiday camp at the far end of the State, particularly if everything I had been saying to the Regulator and to the politicians was not considered to be relevant? The fact is, he did ring me, and I took the opportunity to point out my belief that both Portland and Cape Bridgewater exchanges had been suffering from congestion for some years. He gave me his word that he would investigate my theory.

FOI documents show that he was a man of his word. What is more, his investigation proved that I was right. The congestion was clearly confirmed in a Telstra internal memo dated 30^th March 1994 (FOI document K01007) which states:

“On 27th March Mr Smith complained that he did not receive two calls on Sunday night from Melbourne. The customers calling Mr Smith received “Busy Tone”. During the period 20:00 to 21:00, Telstra’s traffic monitoring equipment indicated that the amount of calls being made into Portland exceeded the available junctions. It is probable that the callers to Mr Smith in fact received tone indicating congestion in the telephone network into the Portland area.”

This memo raises another question, quite aside from the fact that it recognises problems with congestion into the Portland exchange: would ordinary callers actually recognise the difference between a ‘busy tone’ and a ‘congested tone’ which sound very similar to the untrained ear? It also indicates the technician’s acceptance of congestion at the Portland exchange. In the case of my business, this situation was compounded by the fact that, after first negotiating the minefield of congestion at Portland, calls were then switched through to the local exchange at Cape Bridgewater where they encountered even more difficulties created by heat and other problems. No wonder my customer’s complaints continued to mount, even while my arbitration was in progress — each call had to cross two separate hurdles before there was any chance of actually connecting to my phone!

On 6^th April, while the new technical team were in Cape Bridgewater, I again attempted to raise the incorrect billing issues. According to the technical unit people, the arbitrator had instructed them not to assess any new claim material. Naturally I was most irate. This was a complete turn-around by the arbitrator who had assured me that, if I discovered any new information among FOI documents which I received late, that information could be presented to the technical resource unit when they came to the camp. I had burned the midnight oil night after night to have my evidence prepared before the technical team arrived and it was clear that all this new information would have further supported my allegations. I was so angry, in fact, that I managed to have him at least look at one document while the Telstra official was still there. This was a copy of part of my 1800 call account. How, I asked, could I be charged for a 9.49 minute call on 13^th January 1995 at 11.50 am, and then for a 42 second call at 11.57 am? It is certainly not possible to have two calls overlapping on the same line at the same time.

This caught the attention of the technical people and I was able to offer further examples of incorrect charging on this 1800 account, both on 10^th and 11^th January. This account showed calls from my home number to the camp number. According to my diary notes, both those calls registered an engaged signal, but both were charged as having connected. And again, on 13^th January, there were similar examples of more incorrect charging. Clearly incorrect charging had been running rampant through Telstra, just as my account showed. This document was included in my claim.

Neither the Telstra official nor the technical unit people were prepared to comment on this evidence at the time, although I was assured that the matter would be taken up and addressed as part of the arbitration. The Telstra and technical representatives left shortly after this — together. Together, and without me, was, of course, in direct breach of the rules of the arbitration. What private conversations took place between these two? The answer to that question is probably only known to the participants themselves (and perhaps the arbitrator?).

Both the resource units were now preparing their reports and I had a gut feeling (which turned out to be correct) that the COT members had been sold more than a pup. I felt as if I had been crucified by the very person who was supposed to be delivering justice, my arbitrator. By this stage he had not once investigated my questions regarding why my fax and my phones continued to create problems. I was now convinced that the arbitration was just a sham, instigated with the single aim of ‘shutting me up’ by providing some sort of minimum award payment.

If the new technical unit had known about the deficient verification testing and the way Telstra was relying on false BCI test results to support the efficiency of their network into Cape Bridgewater, they may well have demanded that the arbitrator ask Telstra the true extend of the faults in the network.

If the arbitrator had been aware at this point that Telstra was relying on deficient test results and an impracticable BCI test report to support their defence of my claims, he would have been legally duty-bound to ask Telstra for an explanation. The saga just goes on, and on, and on ……

CHAPTER 27

Cathy was now involved in the business as a partner but I had only been able to pay her very minimum wages from early 1994. After the technicians and the Telstra people left, we had quite a disagreement about my next move. I believed I had a great idea (Cathy disagreed). The Commonwealth Ombudsman’s Office had been very supportive of my allegations concerning Telstra’s defective supply of the discovery documents I had requested under the FOI act. Throughout this whole awful saga they had, again and again, proved themselves to be truly impartial. What a breath of fresh, clean air!

It was perfectly clear that this was one government department that operated strictly according to the principals of natural justice. Based on my knowledge that this office was involved in the preparation of a report on Telstra’s failure to provide the COT’s discovery documents under the FOI Act, I guessed that this office would keep a copy of every document I had faxed them, as well as all the documents they had faxed to me. I was sure I was onto a winner here. I asked the Commonwealth Ombudsman’s Office to use my 1800 free call number for all future calls because I knew they would document the number of calls they made in relation to my complaints. I was convinced that the Commonwealth Ombudsman’s Office’s tally of those calls would not match up with my 1800 account.

Two years later, on the 28^th February 1997, the Commonwealth Ombudsman’s Office presented a document to Telstra, covering all the communications between my office and theirs. This document formed part of their report to Telstra’s Corporate Customer Affairs Office. This report showed that they had received three hundred and fifteen faxes from me, with thirteen hundred and sixty-nine attachments, and they had sent twenty-one faxes to me with two hundred and nine attachments. And it also recorded one hundred and sixty-three calls from my office to theirs with forty-three from their office to my 1800 account. Bingo! Telstra, however, had charged me for ninety-two calls from the Ombudsman on my 1800 account over this same period. I have lost another three pages of 1800 accounts for the same period but have not bothered to have them replaced until Telstra explains the difference in these figures. Forty-three calls registered by the Commonwealth Ombudsman’s Office against ninety-two calls actually charged by Telstra needs some explaining. By December 1998 Telstra had still not provided me with a rebate for these incorrectly charged calls, nor had they made any attempt to explain such a high margin of discrepancy. This matter has not been investigated by the TIO’s office either.

The TIO’s office and the Minister for Communications have been shown clearly that this incorrect charging, both on my 1800 line and on my fax line, continued for at least two years after the arbitrator handed down my ‘award’. Since neither Telstra nor the arbitrator ever addressed this issue during my arbitration, I have never been awarded anything in relation to this particular matter, even though the Commonwealth Ombudsman’s information helped me prove, beyond any doubt, that there were considerable problems with Telstra’s billing system as much as twenty months AFTER my ‘award’ had been handed down. Obviously this means that the problem continued right through the arbitration itself.

How could the arbitrator hand down an ‘award’ when it was clear that incorrect charging, one of the main reasons I was in arbitration in the first place, was still occurring on a regular basis, and had occurred right through the time I was in arbitration? Since this incorrect charging was one of the issues raised in the arbitration, and it was never addressed or included in the ‘award’, how can this procedure be complete?

I have written numerous letters to both the TIO’s office and to Telstra about this matter but still neither has offered any explanation and still the incorrect charging over the Commonwealth Ombudsman’s calls has not been addressed in any way.

May 11^th 1995 was D-day, the day the arbitrator was due to hand down his award. I had previously been sent a copy of the technical report on the losses attributed to the phone faults my business had suffered over the previous six and a half years that my claim covered. I had found, to my horror, that this report had only addressed twenty-six of the points I had raised in my claim leaving many very relevant claim documents un-addressed. In fact calculations now show that the technical unit assessed less than half the claim documents I submitted. This effectively gave Telstra a major advantage since they therefore did not have to respond to the documents that were not covered in the technical report. The TIO has still not investigated why both the arbitrator and the technical unit allowed so much of my claim material to be ignored.

None of the incorrect charging issues had been addressed at all and neither had my questions about claim documents that had been lost between my fax and their intended destination. Nor had the continuing phone faults been addressed. Bile rose from my stomach. I had no money left to employ my technical advisor again. What could I do? This was clearly an attempt to ‘wipe the slate clean’ for Telstra. Obviously the arbitrator thought he could get away with awarding me a minimum payment, without any compensation to cover all the consequential and resultant costs that had accumulated as I prepared my claim and then as I worked to bring all these matters to the attention of the Regulator and the Government.

The technical report found that a number of my claims were proven and, sure, they did find against Telstra on a few issues, but not anywhere near the extent of the problems which had been shown by my claim documents.

CHAPTER 28

The following fault assessments are taken from the technical report, specifically from a section covering the local telephone exchange, referred to as RCM 1, which my coin-operated gold phone was connected to for most of the time. The technical report was compiled from Telstra’s own data and records.

“2.2 There were consistent problems with the RCM system. Mr Smith’s services were carried on RCM No 1 until February 1994. This system had a track record of problems, and the RCM system components were the subject of several design corrections (Work Specifications). These issues were likely to cause a range of problems (as reported) over the period August 1991 to February 1993 (a period of 18 months) when Mr Smith’s services were transferred off RCM 1 and service improved. Specific problems caused are covered in later paragraphs (ref: 2.8, 2.9, 2.21).

ASSESSMENT - Service was less than reasonable.

2.8 RCM1 failure due to lightning damage. Lightning damage to communications equipment would be expected from time to time in this area. Reasonable service relates to the time taken to return the service to normal. A reasonable expectation would be repair within less than the 4 days actually taken.

ASSESSMENT - Service was less than reasonable.

2.9 Evidence of problems with services on RCM 1 had been sufficient to cause Telstra to move the CBHC services away from RCM 1 to RCM 2 and 3. Later when the RCM equipment was examined by Melbourne staff, evidence of severe error levels had accumulated on the counters in the transmission equipment (particularly RCM1). After corrective action these severe error levels were no longer accumulating.

ASSESSMENT - Service was less than reasonable.

This report then goes on to summarise the situation regarding the gold phone:

“Intermittent effects on the gold phone resulted in it being removed from RCM 1 11 days after potential cause (lightening strike damage to RCM 1). At the time of removal the actual equipment fault had not been found, although testing was continuing. This seems to have been a reasonable action and timescale under the circ*mstances.

ASSESSMENT: A reasonable level of service was provided.”

So, in their report, the technical unit stated that four days was a “less than reasonable” timeframe for repair of a fault but, in the summing up of this section of the report, they state that eleven days was a reasonable time-frame for repair of a fault.

Also in their summing up they gave the gold phone a clean bill of health, but the gold phone was connected to RCM 1 for most of its existence so how could it possibly have been working well when the exchange (the RCM 1 referred to in point 2.2 above) “had a track record of problems”?

Bearing in mind that this report was compiled seven years after my first complaint was lodged with Telstra, isn’t it just a bit of a worry that the technical unit made no reference to the numerous diary notes and letters from customers which I lodged with the arbitration, many referring to continual problems with this gold phone? How could they possibly prepare a secret document for the arbitrator (which I was never intended to see), giving the system a clean bill of health, with all these complaints piling up? Mind you, it must be noted that the technical unit did state that they did not assess all my claim documents when they were assessing the phone faults at Cape Bridgewater. This, of course, raises the question of why they didn’t assess all these claim documents. Who in Australia had the power to instruct an independent technical resource unit that they were not to address issues raised in claim documents which had been presented to a legal procedure? Clearly, if you have enough resources and enough power to influence the judge (in my case the arbitrator), you can hijack the system whenever you want to.

The ‘lighting strike’ referred to in the technical report raises more questions. According to FOI documents which I included in my claim, the exchange had received a lightning strike some time in November of 1992. This lightning strike apparently damaged a ‘bearer’ at the exchange. This document also reports that it ‘appeared that the fault was rectified by late January 1993’. According to my calculations, even if the ‘some time in November’ was actually late in November, this is still two months, not eleven days as the technical unit had stated in their findings. To have a phone out of order for two months is certainly not a reasonable level of service.

Other information that came to light while the Regulator was researching their COT report shows that at one stage the Telstra technicians forgot to connect a fault alarm at the Cape Bridgewater exchange. Since Cape Bridgewater was an un-manned exchange, this alarm was vital as it was the only way the technicians at Portland would know if there was a problem or a fault at the exchange. This alarm was not connected for eighteen months — from August 1991 through to March 1993. Why hadn’t the technical unit highlighted this error in their technical report? Obviously many of the phone faults my business experienced during these eighteen months would have gone undetected by the local technicians simply because the alarm wasn’t connected.

I challenged the technical unit’s assessment of my gold phone and supplied both Telstra and the TIO’s office with conclusive evidence, using Telstra’s own documentation, that there had been continuing problems with the gold phone over a period of years. These problems were supported by many letters from my customers. In December 1995, some time after receiving the technical report (dated 30^th April 1995), I had finally had enough, and I refused to pay the gold phone account until the gold phone faults were acknowledged by Telstra. Telstra’s response was to cut the phone off. This phone remained disconnected right up until I finally sold the business in 2001, with the TIO’s office continually stating that they were ‘looking into the matter’.

As if it wasn’t hard enough to respond to the technical report, the financial report, prepared by FHCA, was even more of a nightmare. On 9^th May 1995, my forensic accountant actually wrote a thirty-nine-page report to the arbitrator explaining the failings he had found in the financial report. Some of the points he raised in that letter were:

“1. The FHCA report does not include any detailed workings so we have endeavoured to recalculate the FHCA figures given their assumptions and the base figures which were included in our report dated 21 June 1994.

Our recalculated figures are still higher than the FHCA figures and we are unable to determine the reason for this.

2. We believe that the FHCA report contains many inaccuracies and in the main area of loss quantification is simply wrong. THE MAIN CALCULATION OF LOSS HAS BEEN CONSIDERABLY UNDERSTATED BY AN ERROR OF LOGIC.

The error of logic appears to arise from the fact that FHCA reduce the total bed capacity by the night utilisation of 48% (to give available bed capacity) and FHCA then apply the bed occupancy rates to the available bed capacity. It is incorrect to reduce the total bed capacity by both of these factors.”

My accountant has never received a response from the arbitrator. Two days after this letter was sent, on 11^th May 1995, the arbitrator handed down his award. Compared to my accountant’s calculations of the losses my business had suffered because of the phone problems, this award gave only ten cents in the dollar. After I had taken into account all the expenses I accumulated just to bring the phone problems to the attention of the Regulator and the Senate, and all the expenses associated with submitting my claim to the arbitrator, I was left with only four cents in the dollar. By this stage I had been fighting for justice for seven years and I was left to ask — what about my failing health?

I was not aware of my accountant’s disgust at the handling of the arbitration procedure and, unbeknown to me, he contacted the project manager of my claim and asked him how he had arrived at his findings. The project manager advised my accountant that, under instructions from the arbitrator, he had been forced to exclude a large section of information from his final report, meaning that the final report was actually incomplete. My accountant was so incensed that he promptly wrote to the Minister for Communications and the new TIO, clearly expressing his disappointment with FHCA. He considered that their conduct was detrimental to my claim because, since their report was incomplete, he had no firm base on which to formulate his response or, indeed, to challenge the report.

Finally the project manager phoned me direct. He had rung, he said, to let me know that he was aware that things hadn’t turned out quite as I had hoped but he believed I now had to put it all behind me, get on with my life and show them what I could do. I am still wondering who ‘them’ was.

As if it isn’t bad enough that the so-called independent arbitrator forced the so-called independent financial assessors to ‘doctor’ their report, it is even more disappointing that the project manager for the financial assessors would wait until after my appeal time had elapsed before speaking out. And, why did he ring then anyway? I had only ever spoken to him once through this whole process and that was back on 11^th October 1994, during the oral hearing. This phone call seemed totally out of character; or had he heard about my collapse and had an attack of conscience?

Even stranger, during this conversation, the project manager informed me that the Canadian executive manager of my case was also going to ring me; and so he did.

The Canadian manager said something like: ‘This has been the worst process I have ever been a party to. This sort of situation would never have happened in North America.’

It was not until 2001/2002 that I received a copy of a letter dated 13^th February 1996, from the project manager to the new TIO regarding the removal of part of the project manager’s findings, and notifying the TIO that he had told my accountant that: “… the final report did not cover all material and working papers”.

CHAPTER 29

And, unbelievably, still the plot continued to thicken .....

On the 23^rd May 1995 another seven hundred or so FOI discovery documents arrived. I couldn’t even begin to imagine what on earth Telstra thought they were going to achieve by this. Why now? Why not twelve months before when I could have used the material to support my claim? Why not even ten DAYS before — because two of the documents included in this latest batch proved to be particularly important and, if I had only had them ten days before I could have used them to support an appeal against the arbitrator’s award. Even better, if I had had them a month before, I could have amended the claim itself. By the time I had these documents in my possession the only way I could have used them was to take the matter to the Supreme Court, an alternative that was entirely beyond my financial means at the time, as Telstra well knew.

The two documents in question were copies of letters exchanged between Telstra and Bell Canada International in August and September of 1994. These letters acknowledged that the BCI tests, as reported in the addendum to their Cape Bridgewater report of 10^th November 1993, were impracticable.

When, some three years later, I received yet another document (N00040) from another COT member, the deception was totally uncovered. Document N00040, dated 20^th June 1994, and under the heading “Smith Query — BCI tests to Cape Bridgewater”, clearly states:

“It would appear that there is an error of some sort in the report of the testing from Richmond on the afternoon of the 5/11/93.” This internal Telstra email then goes on to ask if “… anyone can provide any clarification…”

Clearly Telstra was aware that something was not right with the BCI report they had provided to the Senate in 1993, allegedly to support their assertions that their network into the Cape Bridgewater exchange was up to world standard. We now know, of course, that Telstra has continued to mislead the Senate for many years about the true standard of this network.

On the 6^th September 1994, in Telstra’s letter to Bell Canada (the FOI document numbered N00005 and 6), Telstra specifically referred to the start and finish times for the tests run from the Richmond exchange, to the Portland exchange test line. These tests were detailed in the BCI report and Telstra referred to these tests as being impracticable although they did not disclose that this was partly because Telstra were themselves conducting Neat testing to the same number in Cape Bridgewater, at the same time, on the same day.

This letter to BCI is not the only document to refer to the impracticability of these tests; a number of inter-departmental documents within Telstra also refer to this problem.

FOI document L68979 is a copy of a letter from Telstra to my arbitrator on 13^th September 1994. Telstra acknowledges in this letter that the arbitrator has not given them any directions relating to the raw data from the BCI tests, which I had asked the arbitrator to request from them. I asked to see this raw test data so I could prove to the arbitrator that my telephone service was so poor at the time that these tests could not possibly have been carried out as shown in the BCI report. I have not yet sighted any documentation in relation to this testing; certainly none of the raw data has been passed to me by either the arbitrator (under the discovery process), during the arbitration, or by anyone else since. I have not received any documentation showing how BCI arrived at the figures in their report.

Even though Telstra knew this BCI report was impracticable and flawed, they still used the BCI test results in their defence of my claims, to support their assertions that the network was working correctly. I know that at least one copy of this report was passed on to Telstra’s defence unit because a clinical psychologist, who was commissioned by Telstra to assess my mental health, wrote that he had read the BCI report before he met me.

Of course, any ordinary person would believe that Telstra’s phone system was working properly if they read BCI’s report because BCI is an international, highly regarded and qualified communications company and because they clearly stated that thousands and thousands of test calls were made to the exchange that my phone was connected to, with a 99.5% positive result. The first conclusion would then have to be that my claims were unsubstantiated and, following this, that I must be out of my mind in some way. The fact still remains that Telstra knowingly provided a flawed document to support their defence. This is illegal in this country and is classified as perjury in a legal process. Why hasn’t Telstra been made accountable for their actions by the Government?

For years I have canvassed the Communications Minister and the TIO to have the BCI report withdrawn from Telstra’s defence but my requests have fallen on deaf ears. It is clear from Telstra’s own FOI documents that, for some six months before they lodged their defence, they knew this report was impracticable. The TIO and the various Government Ministers who have been notified of the problems with this report have so far failed in their duty of care — they should have ensured that this report was withdrawn from the Public Domain when they were first alerted to the impracticability of it and the flaws it contained. As it stood then, and still stands now (because I don’t have the finances to continue the fight), there is no way I can take my case to the Supreme Court.

In a letter to the Commonwealth Ombudsman, Telstra has written:

“The reference to documents relating to Mr Smith being lost or destroyed refers to a discussion I had with Mr Smith. Apparently Telstra had previously informed Mr Smith that specific documents had been lost or destroyed. I am not aware of the circ*mstances in which this occurred and will arrange for my staff to ascertain the details from Mr Smith and advise you of the circ*mstances.”

Telstra’s Commercial General Manager for Victoria and Tasmania has added a hand-written note to another document, asking, in relation to one of my FOI requests: “Should we make Alan pay, even if we can’t provide everything he wants? Please prepare the letter as suggested.”

Does this note indicate that Telstra were acting in good faith at all times? I think not. Imagine even contemplating taking my money for something they knew they could not possibly supply!

CHAPTER 30

At this stage the daily running of the camp was almost beyond me, and my partner, Cathy, was handling the work almost entirely on her own. My self-esteem continued to sink lower and all the marketing and promotional expertise I had built up over the years was of no help: I had no reserves of energy to call on, I couldn’t even think straight any more, let alone compose advertisem*nts or talk to people about the camp.

Again and again I found myself stewing on my situation. How could this happen in Australia in the 1990’s? Wasn’t this supposed to be a democracy? How could the Government continue to ignore me? How could the lawyers get away with hiding the truth in order to prop Telstra up? I couldn’t work out which way to turn next.

Finally I decided to ask for all my claim documents to be returned to me (this was covered in the rules of the arbitration). I waited patiently for weeks before deciding to drive to Melbourne and collect them myself. I thought I had been as angry as it was possible to be but no, by the time Cathy and I arrived in Melbourne I was ready to explode. I controlled my anger though, as I walked into the arbitrator’s reception area and spoke to the arbitrator’s secretary. Looking back now I wonder why I expected to have my request met this time: certainly none of my previous requests had been met but I suppose we can always hope. It was not to be however. My documents were not ready, the arbitrator’s secretary informed me, and the arbitrator was not available.

My emotions, already on a short fuse, finally took over and I shouted at her, demanding that she get my documents at once and reminding her that I had put in my request three months before and had now driven for five hours to collect them. “I am not leaving this office without those documents.” I told her, “Call the police if you want to, I don’t care. You have my property and I want it back now.” At last a young lad appeared from the lifts wheeling a trolley loaded with boxes of documents. He asked me to sort out which were my claim documents; I simply took the lot.

It took Cathy some time to find a parking spot near this busy city office but finally I loaded them into the car and we headed off, unaware that, among my own documents, there were some that I had never seen before. These proved to be documents that should have been forwarded to me under the rules of arbitration. And they were very, very interesting, to say the least.

Of course, in any dispute which is settled by an umpire (like an arbitration) it is almost mandatory that any information supplied by one party must be automatically circulated to the other party and this was certainly so according to the rules of my arbitration. In fact, in my case, the information had to also be supplied to the TIO’s legal counsel. Among the documents I took with me from the arbitrator’s office this day, however, I found a brown envelope full of documents and loose papers, none of which had ever been forwarded to me. This envelope contained copies of a number of letters from Telstra to the arbitrator, including one letter dated 16^th December 1994, which indicated that it had been sent with three attachments:

1.Letter dated 4 October 1994 from the Regulator to Telstra

2.Letter dated 11 November 1994 from Telstra to the Regulator

3.Letter dated 1 December 1994 from the Regulator to Telstra

In the first paragraph of this 16^th December letter, Telstra stated:

“You will note from the correspondence that the Regulator has requested Telstra to provide information relating to charging discrepancies reported by Mr Smith for short duration calls on his 008 service. These issues form part of the subject matter of Mr Smith’s claim under the Fast Track Arbitration Procedure.”

Clearly, at that time anyway, the Regulator was most concerned regarding this incorrect charging and, on page two, Telstra go on to state:

“The simplest way forward may be for Mr Smith and Telstra and yourself to all confirm in writing that this information can be provided to the Regulator if this meets with your approval.”

Now, if this was the way to go, why didn’t I receive some indication of this from the arbitrator? Certainly I did not receive any correspondence from him referring to this arrangement, but the Regulator apparently later wrote to the arbitrator acknowledging receipt of Telstra’s letter of 11^th November 1994 and noting that Telstra had agreed to answer, in their defence of my claims, each of the questions put by the Regulator on 4^th October 1994.

In their earlier letter of 1^st December, the Regulator had indicated that a number of other Telstra customers in the Portland area had also complained about incorrect charging on their 1800 services and so it is not surprising to find them indicating their concern about this in their letter of 8^th December:

“A major consideration in the Regulator’s pursuit of the issue raised by Mr Smith was the likelihood that these problems, if proved to exist, would almost certainly affect a number of other Telstra customers.”

In direct breach of the rules of the arbitration, the arbitrator did not forward these letters on to me during the arbitration.

Even more amazing, the arbitrator made no written finding in his award regarding the massive incorrect charging as shown in my claim documents. In fact, even though Telstra had notified both the arbitrator and the Regulator (in their letter of 11^th November 1994) that they would address these incorrect charging issues in their defence, they failed to do so, and even though the arbitrator obviously knew of this promise, the arbitrator still allowed Telstra to ignore the issue completely. I believe that this constitutes a conspiracy between the arbitrator and Telstra in my arbitration but I was to uncover even more when I turned to the loose documents I had come by inadvertently. These would surely convince the devil himself that there was a conspiracy afoot. These documents relate back to the day the COT four signed for arbitration, on 21^st April 1994.

As I have already explained, one of the main reasons for signing for arbitration, as opposed to the existing commercial agreement, was that Telstra’s billing system would be brought under scrutiny. The members of COT believed this was a major issue that needed to be brought to the attention of all Telstra’s customers, in the public interest.

I had been directed, you will recall, to lodge written details of any phone complaints with Telstra’s solicitors. In particular, in one of my letters to the solicitors I had shown them that I was being charged incorrectly for short duration calls on my 1800 account.

On 18^th June 1993, the Regulator wrote to Telstra regarding these billing issues. Their letter, one of many written by the Regulator to Telstra regarding this particular issue, refers to the many instances in my accounts where the time between calls is less than one minute according to the start time of the calls and asks for an explanation of the apparent discrepancies in my account.

On the same issue, in an internal Telstra letter dated 25^th November 1993, to the Corporate Billing Directorate in Brisbane, regarding my short duration call problems, the writer states:

“Telstra does have clearly defined policies and principles for call charging and billing.

• Customers will be charged only for calls which are answered
• Unanswered calls are not charged

Unanswered calls include calls encountering engaged numbers (busy), various Telstra tones and recorded voice announcements as well as calls which ‘ring out’ or are terminated before or during ringing.”

When speaking with the General Manager for Consumer Affairs at Telstra, I referred to this document, telling him that this was certainly not the case on my phone line.

Over the years leading up to my arbitration, I continually proved to the Regulator that Telstra were incorrectly charging RVA calls. In one instance I used my claim advisor as just one example, and provided my 1800 account and Telstra’s matching data records to prove my point. Finally, because these issues were not addressed in my arbitration, the Regulator visited Cape Bridgewater late in 1995 to look at a further six bound volumes of new evidence I had accumulated to support my case. Three of these volumes, which had been submitted into arbitration, had resulted in Telstra writing to the Regulator on 11^th November 1994 to say they would address these issues in their defence.

The Regulator’s people looked over the six volumes I had and commented that they had never seen so much evidence, presented in such detail. They appeared to actually be quite stunned. Finally they left, taking the volumes of evidence with them. Although all this evidence was returned to me some weeks later I have never had any formal recognition of my effort from the Regulator.

In a letter dated 6^th December 1995, the Regulator wrote to me:

“I refer to my recent correspondence advising you that the Regulator had again written to Telstra regarding the issues relating to charging discrepancies concerning its 008/1800 service originally raised by you in 1994. I write to request additional information from you to assist the Regulator in its investigation of charging discrepancies associated with Telstra’s 008/1800 service.

Your assistance in this matter would be appreciated.”

Among the ‘loose documents’ inadvertently provided to me by the arbitrator’s secretary I found three technical reports which had been compiled from my claim documents. One, dated 7^th April 1995, was headed “Draft for Discussion Purposes Only” and written by the Australian component of the technical resource unit; the other two documents were duplicate copies of a report compiled by both the Canadian and Australian companies and dated 30 April 1995. Or were they duplicates? They certainly looked the same; they certainly both had identical covers; they certainly both had the same date and neither of them was signed, but .... ?

Back in May of 1995, when I received my copy of this technical report, and needed to respond to it in writing according to the rules of the FTAP, I had asked why it had not been signed off as a complete document. The arbitrator did not respond to my question. When I found these ‘duplicates’ of the report, I dug out my copy and compared all three. Lo and behold, a number of differences showed up, all in Telstra’s favour.

Some of these differences were not apparent at first glance but one was quite clear from the start: the page numbering on one of the forty-page documents which I had not seen before, sailed along sensibly up to page twenty-seven but after that, with the exception of a page numbered thirty-one, all the rest of the pages were also numbered twenty-seven. What on earth did this indicate? I had no idea. And there were other differences, the most alarming relating to a part of the report headed “Scope of Report” in the early draft version, dated 7^th April 1995. Part of this section states: “The report covers incidents and events potentially affecting the telephone service provided to the Cape Bridgewater Holiday Camp during the period February 1988 to August 1994” and goes on to provide a list of documents which provided the information in the report.

When I compared my version of the technical report with an apparently ‘secret’ version of the same report which I had collected with my documents from the arbitrator, I first noticed that they were both dated 30^th April 1995 so one would assume they would turn out to be identical. Not so! A comparison of the documents listed show that only 20% of my claim documents had been provided to the technical unit for their assessment.

Among the many documents I later received from the TIO, in 2001/2002, I found that the arbitrator had prepared a draft of his award before the technical unit had even been provided with my claim documents, so the technical findings included in the arbitrator’s final award were not based solely on the report prepared by the official technical unit. Who, I wonder, provided the arbitrator with the technical information he needed to prepare his draft?

Not only was the arbitrator clearly prepare to deceive me into believing that he based his technical findings on the technical unit’s report, I also discovered that the project manager was prepared to deceive me as well. The project manager wrote to the TIO on 18^th April 1995, advising the TIO that the director of the Canadian company “… arrived in Australia on 13th April 1995 and worked over the Easter Holiday period, particularly on the Smith claim.” He went on to say that “Any technical report prepared in draft by (the Australian company) will be signed off and will appear on the letterhead of (the Canadian company)”. Since the Australian company prepared their draft on 7^th April, and there were only cosmetic differences between this report and the final one dated 30^th April, but the Canadian expert didn’t even arrive in the country until the 13^th, it is obvious that the Australian company, with its ex-Telstra owner, carried out all the investigations and prepared the final report which was then put on the Canadian letterhead to make it appear that the Canadian company had handled the investigation. And the Canadian expert never even visited Cape Bridgewater.

The difference in numbers of documents assessed before August 1994 proves that not all my claim documents were passed to the technical unit for evaluation. How could they possibly have correctly assessed all the faults prior to August 1994 if they only saw half my claim? Was this a conspiracy, this apparent attempt to cover up on behalf of Telstra and defraud me of a proper assessment?

Another problem with these two conflicting versions of the technical report appears on the page numbered as one in my version and titled “Resource Unit Technical Evaluation Report. Mr Alan Smith. CBHC. 30 April 1995.” The second paragraph on this page consists of only one short sentence “It is complete and final as it is.” The second paragraph on the equivalent page of the arbitrator’s report (numbered as page two), however, goes on to say “There is, however, an addendum which we may find it necessary to add during the next few weeks on billing, i.e. possible discrepancies in Smith’s Telstra bills.”

Once more there is more information in the arbitrator’s version than there is in mine. And, again, this refers to billing problems.

Again, in the arbitrator’s copy (on the page numbered as three), the fourth and fifth paragraphs state:

“One issue in the Cape Bridgewater case remains open, and we shall attempt to resolve it in the next few weeks, namely Mr Smith’s complaints about billing problems” and “Otherwise, the Technical Report on Cape Bridgewater is complete.”

This information is simply missing from my version of the report (page numbered as two). Did the arbitrator and the technical unit all think that I would forget about the billing issues if they didn’t remind me?

It was serious enough to discover that Telstra had not addressed the billing issues, even though they said they would; it is even more serious to discover that letters discussing this matter had been sent by Telstra to the arbitrator and the Regulator without being copied on to me. If, as it seemed to me, the arbitrator actually had favoured Telstra so this billing issue would never be addressed in my arbitration, then we must ask if the arbitrator was as impartial as he was supposed to be. All this greatly disadvantaged me, as a claimant in this matter. And then, to finally find that the technical resource team intended to address the billing issues but mysteriously omitted this from the final version of their report just proves my allegations that there was a conspiracy between various high-ranking people involved in this arbitration.

I returned again to the documents on pages 175 and 176, under the heading “Cape Bridgewater Documentation”, and found, in the second line on both pages, reference to more than four thousand pages of documents that had been presented by both parties and “examined by us”. In the arbitrator’s ‘award’, however, he states that he viewed more than six thousand documents. What happened to the other two thousand?

Let’s assume, generously, that there were, say, four hundred pages of documents (out of the arbitrator’s six thousand) which were only related to the financial side of the dispute, and which would therefore not need to be assessed by the technical team. This still leaves sixteen hundred not accounted for. Interestingly, this is approximately the number of claim documents referred to by the technical unit (in their two source information documents) as not being assessed. Could this mean that the technical unit didn’t see all my claim documents?

On the last two lines of this same paragraph I found the following amazing statement: “A comprehensive log of Mr Smith’s complaints does not appear to exist.”

This is further proof that the technical team were not provided with my list of one hundred and eighty-three logged faults from late 1989 to early 1994. Apparently they were not provided with a copy of the further forty-three logged faults which I submitted or the seventy or so letters of complaint which I also provided to support these two lists, totalling two hundred and twenty-six logged fault calls in all.

Looking back now it seems obvious that there was some sort of conspiracy going on here, a conspiracy to cover up at least some of the issues I had raised in my claim. I have evidence which supports my claims that Telstra ‘bugged’ my phone both before and during my arbitration: when this information is put together with what I now believe was happening with all the incorrectly charged short duration calls on my 1800 account, a conspiracy seems the only answer. Diversion of phone calls and faxes has been discussed in more detail earlier in this book.

Back in early 1993, as I have previously related, I was continuing to lodge complaints with the Regulator about the short duration and non-connected calls. An FOI document dated 23^rd September 1993, from someone inside Telstra to Telstra’s Corporate Secretary, discusses ‘long held’ and ‘incoming unanswered’ calls of ‘4 - 8 seconds’. According to this document there was some suspicion that these were ‘diverted’ calls. The writer commented that further investigation was to take place.

The following three incidents all relate to other situations where call diversion was highly likely to be the cause of the problem:

• A hairdresser in the outer suburbs of Adelaide, South Australia, who is known to the COT group, suspected that some of her incoming business calls were being diverted elsewhere. Her problem was investigated by both the Regulator and the police and the conclusion was that it seemed the calls were actually going to another hairdresser. The matter was settled by Telstra out of court.
• A massage parlour operator in Melbourne, who also contacted COT, suspected some of her incoming business calls were being diverted to her opposition. Her suspicions were later confirmed, after police intervention. Her calls were apparently being diverted to another massage parlour elsewhere in Melbourne.
• In my own case, on 3^rd June 1994, during my arbitration procedure, I called Telstra’s fault service to lodge a complaint in response to problems experienced earlier that day by some of my customers who had difficulty getting through to my business on the phone. At the time I had a bus charter operator in my office and he witnessed the following events.

I used my fax phone to phone Telstra. This equipment was on a separate line to my 1800 free call service, which was the line I was complaining about. I asked the Telstra 1100 fault operator if she would phone my free call number and see if she had problems getting through. Moments later, while I was still holding on the fax line, there was a faint, one ring burst on my free call line. Both the charter operator and I heard this short ring but when I picked up the receiver, the line was dead and so I didn’t bother to speak but simply hung up the phone. The bus charter operator has since confirmed this in a letter which was presented to the arbitrator.

A few moments after I had hung up the free call phone, the Telstra operator came back to my fax phone and quite innocently announced that she had heard some-one say something about a holiday camp on the free call line. I certainly didn’t say anything about a holiday camp, so who answered the call? The operator’s version of events certainly doesn’t match my version, nor does it match the description given by the witness, so where was her call answered? Later I had professional video made of my own version of the events and this five-minute video clip was accepted into arbitration, along with other documentation supporting my claims of illegal call diversion by persons with access to Telstra’s network. FOI documentation shows that all this information was passed on to Telstra by the arbitrator but, like so many of the issues I raised in my claim, the issue of illegal call diversion was never addressed by the arbitrator.

Further information relating to this illegal phone interception and to phone bugging, lost faxes and intrusion into the private lives of COT members, is detailed at the end of this book. You will be astonished at what the Telstra Corporation has resorted to in their efforts to conceal the truth.

CHAPTER 31

I wondered how much more confusion and deception I would uncover among the rest of the documents inadvertently supplied by the arbitrator’s secretary.

The unethical behaviour by the FHCA project manager, when he withdrew a large section of his financial report, was firmly fixed in my mind when I uncovered a document headed “Ferrier Hodgson Corporate Advisory Working Notes.” As I read this document I pictured yet another spear aimed at my heart. Had these people set out to drive me into the ground?

The FHCA draft report appears to find in my favour for once. It shows the how many tourists visited the Portland region between 1991 and 1994:

In 1991/92 this list shows 1,396,000 tourists, in 1992/93 this increased by 6.7% to 1,490,000 and in 1993/94 the number increased again, this time by 5%, to 1,565,000. This was the increase I had shown in my claim documents, supported by figures supplied by the Department of Conservation and the Environment (now called Parks Victoria) who control many tourist locations and national parks in our area. These figures were also supported by information supplied by the Victorian Tourism Domestic Monitor.

In his award document however, when the arbitrator referred to tourism, he stated that he ‘had to take into account the decrease in tourism’ in my area as possibly one of the factors contributing to lost business at the camp.

The figures supplied by FHCA, Parks Victoria and the domestic tourism monitor for the Great Ocean Road region are factual figures. What made the arbitrator decide that there had been a decrease in tourism in the area?

Now, with all this information finally available to me, I set about challenging the arbitrator through the Institute of Arbitrator’s president who, because he happened to live in Western Australia, thereby caused me to spend more money on faxes and phone calls in my search for natural justice. My impression, gained from letters from the Institute’s president, was that he was alarmed at the evidence I passed to him; evidence showing the unethical way my arbitrator had conducted himself. At the time however, I was still suffering from sleepless nights as I stewed on the questions — how could a legal person such as the arbitrator hide so much evidence? How could he allow Telstra to get away with ignoring so many issues? And why? All this deception and yet it seemed no-one with any power seemed at all concerned.

One person who was expressing concern however was my local Federal Member of Parliament, David Hawker. As far back as 1992 Mr Hawker had supported me by writing to Telstra expressing his concern about the RVA and other phone faults I was experiencing and the business I was losing as a result of these faults. The General Manager of Telstra’s Australian Commercial division responded to Mr Hawker on 23 August 1993, saying:

“Mr Smith has had ongoing complaints and service difficulties over some five years. His services were initially provided from an exchange of older technology which had some faults and suffered congestion.”

My own problems with the phone service were not the only problems I spoke to Mr Hawker about; I had also alerted him to other Telstra customers in our area who were telling me they were also having problems with the phone service, not only when trying to contact me, but with their own phones as well.

So concerned was Mr Hawker that, late in 1995, before the Liberal Government came into power, he arranged for some of the COT members to meet with the then-Shadow Minister for Communications, in his office in Canberra. The Senator seemed to be quite concerned about the way my arbitration had been conducted.

According to my record of this meeting, the Senator asked me to supply further documents. He was interested in my claims regarding the unethical conduct by various parties associated with the administration of my arbitration; he was also interested in my references to the way Telstra had ignored my claims of incorrect charging and problems with billing and my claims that Telstra had been listening in to my private phone calls during the arbitration seemed to particularly worry him. It also seemed that, when we signed for arbitration, the Senator had been under the same illusions as the COT four — he believed that the arbitration would be a non-legalistic and fast-tracked process. A National Party Senator who had supported us along the way had expressed the same beliefs.

During this period immediately following the handing down of my arbitration ‘award’, the Shadow Minister for Communications appeared to also be very concerned that FOI discovery documents had not only showed that Telstra knowingly used flawed and fabricated test results to support their defence of my claim, but that they had allowed the 10^th November 1993 flawed BCI Addendum Report on Cape Bridgewater to remain in the Public Domain. Telstra were, in fact, using this flawed report to publicly support their assertions regarding the high quality of their telephone network. One example of this public use of the report was the Channel Nine program “A Current Affair”.

Following a request from the Senator’s office, I sent more documents showing that Telstra technicians had been listening to my private calls during the arbitration process. The Senator’s office showed even more concern when they discovered, again through my FOI discovery documents, that Telstra continued to listen to my private phone calls for months after they had reassured the Australian Federal Police, and the Chairman of the Board of Telstra, that they had ceased that practice. As a once-practising lawyer, the Senator was well aware of the implications of Telstra’s behaviour; he could clearly see what an advantage they would have when preparing their briefs and defending my claims if they had inside knowledge gained by listening to their opponent’s phone calls to his claim advisers.

How easy it is for someone with the right contacts to uncover inside information. My movements were monitored by the very corporation I was doing legal battle with and some of my important claim documents simply vanished while being faxed. How useful it must have been for Telstra to know where I was and when. And how useful it could have been if they were also able to check what information I was lodging with the arbitrator and make the most damaging simply disappear before it got to him.

In December 1994 I received FOI documents R11612 to R13587, which included questions for the Senate Estimates Committee, put on notice by the Shadow Minister for Communications, to be answered by Telstra. Document R13587 states:

“According to an ex-Telstra employee who had responsibility for security and file management in the period from 1987 until 1992, Telstra installed some computer links between its billing computers — a database system containing customer details, and computers in other organisations, i.e. Australia Post.”

This document then asks the following questions (among others):

1. Could you name each and every organisation which is linked to Telstra’s billing computer?

2. Does (the then-Intelligence Service) have access to personal files kept by Telstra?

3. Can each and every one of these organisations access Telstra’s files containing billing details?

5. Could you guarantee that no Parliamentarians, who have had dealings with “COT” members, have had their phone conversations bugged or taped by Telstra?

9. Who authorised this taping of “COT” members phone conversations and how many and which Telstra employees were involved in either the voice recordings, transcribing the recordings or analysing the tapes?

10. On what basis is Telstra denying copies of tapes to those customers which it has admitted to taping?

11. (A) How many customers has Telstra recorded as having had their phone conversations taped without knowledge or consent since 1990?

(B) Of these, how may were customers who had compensation claims, including ex-Telstra employees, against Telstra?

25.An internal Telstra minute in relation to Alan Smith of Cape Bridgewater states: “Our local technicians believe that Mr Smith is correct in raising complaints about incoming callers to his number receiving a recorded voice announcement saying the number is disconnected. They believe that it is a problem that is occurring in increasing numbers as more and more customers are connected to the AXE.

This document, and questions asked of Telstra in the Senate by the Shadow Minister, make it quite clear that the Senator was then, and still is, aware that Telstra taped and listened in to private phone calls made by COT members who still, in 2004, fear that their calls are being listened to. Anyone who had access to the many, many documents I have read over the years I have been battling for justice would have the same fears.

After the Coalition Government’s victory in 1996 the Shadow Minister became Minister for Communications and the Arts. At this point his office asked me to supply them with a full report on my claims and the allegations I had made against Telstra over the years, along with any allegations I had about the conduct of the arbitration. I set about producing the report they needed: just to produce a chronological listing of events took eighty-two pages which I bound into a book, supported with a separate bound volume of attachments, each document indexed to support the information in the eighty-two page listing. A copy of this two-volume report was sent to the Senator and another copy was forwarded to the Commonwealth Ombudsman’s office.

This report has since been assessed by a number of Legal experts, and others; some of the written responses follow.

Since the Senator was appointed to a position which gave him the power to instigate a full inquiry into the many issues raised by the Telstra / COT situation, nothing more has happened except for a letter of acknowledgement dated 4^th September 1996. Even though I had alerted the Senator’s staff to problems I had with the TIO, particularly in regard to his blatant disregard for the truth when he was addressing my concerns, this acknowledgement letter asked how the Senator might acquire a progress report from the TIO.

CHAPTER 32

In Chapter 23 I related the ‘beer in the phone’ story. This issue was raised for me again, on 28^th November 1995, six months after my award had been handed down and almost twelve months after I had first asked the arbitrator to access, from Telstra’s defence unit, the actual T200 phone that Telstra had taken from my office for testing. This was the phone that Telstra later alleged, in their defence, had been affected by ‘beer in the phone’ which caused what Telstra called a ‘lock-up fault’. According to Telstra, this meant that the fault with my fax line was not in the network but in the phone. As I have indicated in Chapter 23, someone outside my office must have introduced the beer into the phone after it left my premises but the arbitrator would not allow my forensic document researcher to see the draft of the T200 technical report. If this had been allowed my researcher would then have been able to ascertain how Telstra’s technical unit had conjured up this ‘phoney’ report.

So, when I received another bundle of late discovery documents from Telstra, imagine my surprise to find Telstra laboratory reports which showed that, while Telstra had my T200 fax/phone at their laboratory for testing, they also carried out tests to see how long beer would stay wet if it was inside the phone casing. The remarks on the report of this particular test show that, when left overnight, the beer was either almost dry the next day, or completely dry the next day. Apparently Telstra laboratory staff had satisfied themselves that beer could not have stayed wet and sticky for twelve days (the time between the phone leaving my premises and it arriving at the laboratory). Would a corporation as large and powerful as Telstra really stoop so low as to fake the ‘beer in the phone’ set-up just to defend the quality of their network?

Of course, I didn’t see this document until six months after the arbitrator had handed down his award but still I was incredibly excited to be proved right. I came across this information about eight o’clock one evening and, in the heat of the moment I grabbed the phone and dialled the number for the arbitrator’s home. His wife answered and told me that the arbitrator was overseas and was not due home for few days. I thought quickly. “Probably the arbitrator would have discussed at least some aspects of my arbitration with his wife,” I thought. “If I tell her who I am she may be afraid that I am trying to cause trouble. I don’t want to risk upsetting her unnecessarily, so I’ll give someone else’s name.” I quickly decided that I should use a name that would be familiar to the arbitrator; someone that he was friendly with. The first name that popped into my mind was that of the FHCA project manager.

According to my telephone account, this call was made at 8.02 pm on 28/11/95 and it lasted a mere twenty-eight seconds.

Later, after I had calmed down a bit, I told the TIO about my exciting find; a document that I had been looking for, for so long; a document which finally proved my innocence regarding the ‘beer in the phone’ matter. I asked the TIO what he would do with this information. After all, he was the official administrator of the arbitration and this Telstra document showed that not only did Telstra use the flawed BCI report in their defence, but now we could prove that they also used a fabricated T200 report as well. This of course was a very serious matter. Tampering with evidence in a legal arbitration is a chargeable offence.

I also freely told the TIO that I had tried to contact the arbitrator to pass on this news, explaining that I had rung at eight o’clock on the night of the 28^th because I had only then just uncovered the laboratory documents which I was convinced proved serious unlawful behaviour: someone must have introduced the ‘beer’ into my phone after it was taken from my office. Surely tampering with defence material was a matter that needed to be looked into at once. I explained to the TIO that the arbitrator had been overseas when I rang and I explained also why I gave his wife the project manager’s name instead of my own, so as not to alarm her.

The TIO’s response was a flat statement that my arbitration had run its course and he did not intend to involve his office in any further investigation. He added that my best option was to go to the Supreme Court (as if I had the resources to do that!).

This incident added to my concerns about the TIO and some time later, when I received a letter from the President of the Institute of Arbitrators (Aust) with a copy attached of a letter he had received from the TIO, I became even more alarmed. Apparently, after I had spoken to the TIO about my attempt to reach the arbitrator at his home, the TIO wrote to the Institute President, relating an entirely different version of the story. In his letter to the President, the TIO stated that I had rung the arbitrator’s home at two o’clock in the morning (he also noted that I had used a false name, which I don’t deny). This letter from the TIO could well have been interpreted as questioning my motives. Although the TIO didn’t actually ask the question, it did infer that there was a question as to why would anyone make a phone call at two in the morning, except in an emergency (and this wasn’t an emergency really) or if the caller was trying to be intimidating. The TIO was well aware of how badly I had been treated by the justice system and yet still he seemed to be trying to blacken my name. Why else would he take a perfectly innocent incident and try to turn it into something sordid?

Furthermore, what gave the TIO the right to produce this letter in the first place? The TIO is supposed to be unbiased: how could he sit down to write this letter knowing that he was about to record a completely different story to the truth? He must have known that his correspondence would bring my character into question. If he was prepared to do this in my arbitration, it also raises questions about his behaviour in later arbitrations for other members of the COT group. Who is he actually supporting here, the Australian public or the telecommunications carriers?

Another question raised by this letter to the Institute President: the TIO forwarded a copy to the arbitrator at the time. Surely the arbitrator would automatically check with his wife for her version of the incident? And, if he did, I believe his wife would agree that I rang at eight in the evening and not two in the morning. I also believe she would say that I was perfectly polite. Why has the arbitrator not come forward with the true facts?

At least the Institute President was giving me the opportunity to defend myself to him. And I did, and, because the TIO’s letter had also been copied to the arbitrator I believed that he would also confirm that I had spoken quite politely to his wife when I rang, and I also believed that he would also confirm that I rang at eight o’clock at night, not two in the morning, as the TIO had stated.

If we return to Chapter 23 you can see that I have proved, beyond all reasonable doubt, that someone within Telstra tampered with my Exicom T200 touchphone after it left my office to be examined at Telstra’s laboratories. The TIO should have taken this into consideration before he wrote to the Institute President. It is even more alarming, as I have also explained in Chapter 23, to discover that Telstra was once again prepared to sign a Statutory Declaration covering the authenticity of their report regarding ‘beer’ in my phone when they knew the report was fraudulent. One of Telstra’s technicians also knowingly signed a false Statutory Declaration in Telstra’s defence, in relation to my fax machine. In this Statutory Declaration the technician blames ‘customer operator error’ for the continuing faults experienced with this equipment, even though he was well aware that the faults were actually network related.

FOI Document D01026 directly relates to the Exicom T200 touchphone problem. This document shows that not only was Telstra clearly aware of moisture problems associated with this brand of phone but they were also aware that the moisture problem created a short duration/incorrect charging fault to occur on their customer’s accounts. These were the very same short duration/incorrect charging faults that both my arbitrator and Telstra conveniently chose not to address in my arbitration, even though Telstra advised the Regulator (11^th November 1994) that they would address both problems as part of their defence of my arbitration claims.

Even more disturbing, from document D01026 it seems that Telstra re-deployed the phones they knew were faulty and returned them back into service to other four hundred and fifty thousand unsuspecting customers. Did Telstra have someone in their employ with the meteorological expertise to decide where these moisture prone phones should be sent? Cape Bridgewater, as one example, is a known moisture prone area and, as a result of my continual complaints, the local exchange at Cape Bridgewater was finally sealed so that moisture wouldn’t affect the copper components etc. inside this un-manned exchange.

If Telstra does in fact have a meteorological wizard on their staff who was deciding where these faulty phones would be best sent, I wonder if it occurred to him to contemplate the atmosphere inside the buildings where these phones were being installed. I can imagine there would be a considerable moisture content in the air in, for instance, a fish and chip shop, a bakery, an industrial kitchen, a restaurant or a heated swimming pool etc. The humidity in all these places would be higher than other locations in the same geographical area. I also wonder how many of these faulty T200 phones are still being used by unsuspecting Telstra customers and how many of these customers have been continually incorrectly charged for calls they did not receive – as I was for so long.

Another point for discussion is the legality of the re-distribution of products known to be faulty. Regardless of how the Australian Trade Practices Act looks at such a situation, according to point 1 of FOI document D01026, Telstra decided that their faulty phones would “still have to be deployed in areas of lower moisture risk.” It seems that the Telstra Corporation is exempt from the Trade Practices rules covering other corporations and businesses in Australia, as well as being exempt from a number of Acts of Parliament (or so it seems).

It also seems that Telstra, their agents and their employees are exempt from being charged for carrying out illegal activities in Australia and I certainly hope that no Australian business executives expect to be protected from Telstra’s thuggery by our Government: they certainly haven’t protected me, or a number of my associates.

When we consider that it is most likely that the four hundred and fifty thousand TF200 phones continued to be used for years after Telstra knew the problems they could cause, in moisture-prone areas like Cape Bridgewater, we must wonder how much extra revenue Telstra earned because the phones locked-up at the end of conversations and the customers were charged for extra minutes each time that occurred – with Telstra fully aware that the accounts they sent out were incorrect. Clearly Telstra were the beneficiaries of massive overcharging, particularly in my case.

In 2001, one of the documents I received from the Regulator confirms that Telstra agreed they had wrongly billed me on my 1800 line during my arbitration. The TIO also knew what was going on because they wrote to Telstra on 3^rd October 1995 to ask why Telstra had still not investigated and address the 1800 faults I raised in my claim.

CHAPTER 33

When the TIO and his legal counsel first began to pressure the COT four into abandoning the commercial process, the FTSP, and signing for arbitration, the FTPA, no-one bothered to tell us that the appointed arbitrator was not qualified (graded) by the Institute of Arbitrators. This meant that, technically, he was not fully qualified to handle any arbitration, let alone one that was so complex and far-reaching as ours. This was just another part of the comedy of errors that we had become caught up in.

In 1996 the President of the Institute wrote to me, confirming our belief that the appointment of a non-graded arbitrator was ‘always a risk’. To add insult to the injury of this situation, I was later informed that the arbitrator, while involved with the COT cases, actually sat, and failed, his grading examination which, if he had passed, would have seen him admitted into the Institute’s register as a graded arbitrator.

This information was all passed to the Minister for Communications, and the TIO, as it came to light and yet, still, no-one has been able to explain why such an un-graded was chosen to oversee such a vast process.

So, the arbitrator was not fully qualified, but at least, we thought, we always had the TIO to fall back on and the TIO was an unbiased observer in this process. Well, once again, we discovered (too late to help me) that we were wrong. The TIO’s office is supervised by a board and the members of the board are drawn from the leading communications companies in the country, including Telstra. In fact the very person in charge of authorising the supply of discovery documents to the members of COT under FOI, was also the Telstra representative on the council of the TIO’s office.

This was a highly legalistic arbitration, which has so far cost Telstra more than eighteen million dollars to defend. What chance did the COT’s have when we had to rely on Telstra documents to support our claims and the person in charge of distribution of those documents also sat on the council of the TIO? This gave Telstra private access to the TIO himself, without the need to include COT members. No wonder we felt so hopeless.

I discvered later that, in January and February of 1996, after I had complained to the Institute of Arbitrators, the President wrote to the arbitrator and asked for an explanation. On 23^rd January 1996, the arbitrator wrote to the TIO, expressing his concerns regarding the way he should reply to the President of the Institute, particularly if he was to: “… make a full and frank disclosure of the facts to (the President)”. What was he so concerned about? Not long after I found this document, I found a TIO fax cover sheet dated 26^th June 1995, just six weeks after my arbitration, which indicated that the TIO’s office was then concerned about letters I had sent to the arbitrator. This fax asks what: “… the approach should be re parties seeking to revisit issues past arbitration” and noted that: “… this position is not to open the ‘can of worms’.” What can of worms, we must ask? This was supposed to be an independent ombudsman, administering a legal arbitration! There should not be any area that would cause such concerns.

Then we have a letter the arbitrator wrote to the TIO on 12^th May 1995, the day after he had deliberated on my award, in which he notes that the arbitration had not been a ‘credible process’. If the TIO had passed this letter on to me at the time I could have successfully challenged the arbitrator’s findings. After all, how could an appeal judge in the supreme court rule against the arbitrator’s own advice to the administrator that the process was not credible because the rules had not allowed sufficient time for delays associated with the production of documents, obtaining further particulars and the preparation of technical reports, particularly since the project manager had complained of ‘not enough time’ also?

In this letter of 12^th May, the arbitrator went on to say: “In summary, it is my view that, if the process is to remain credible, it is necessary to contemplate a time frame for completion which is longer than presently contained in the arbitration agreement.” So, did anything change in the rules? No, both the arbitrator and the TIO’s office continued to arbitrate on the other members of COT, under a set of rules they both knew were not credible.

On the very day that the arbitrator was writing his letter to explain to the TIO that there were serious problems with the arbitration process, the TIO was busy sending out a media release announcing the successful conclusion of the “… first COT Case arbitration”. According to this official release, the TIO noted that: “… the findings of the Resource Unit, the specialist technical advisers to the Arbitrator, indicated that the claimant had suffered considerable technical difficulties during the period in question. It was found that faults did exist which caused the service to fall below a reasonable level, and that apart from some customer premises equipment…, most of the problems were in the Inter Exchange Network.” And was there ever an announcement to the public regarding the arbitrator’s assessment that the process that arrived at this conclusion was faulty? No, of course not. And did I ever get the opportunity to let the public know that the comment about ‘customer premises equipment’ – probably the infamous TF200 beer-in-the-phone report – had been based on a manufactured and totally incorrect report? No, of course not. And did this announcement make any mention of the fact that, regardless of the findings, the faults continued to plague my business? No, of course not!

When the project manager wrote to the TIO about not having enough time, he also noted that he had suffered some damage to his private property in Brighton and that the local police planned to interview me in relation to this damage. This letter was later passed on to the President of the Institute of Arbitrators by the arbitrator in a clear attempt to damage my reputation. Once he had received this letter, the President refused to investigate my matters any further. As soon as I uncovered the project manager’s lies I phoned the Brighton CIB and asked them to check their records. The informed me they had never heard of me and had never intended to interview me on any matter. And why, when the arbitrator wrote to the President of the Institute (who lived in Western Australia and probably was therefore not familiar with suburbs and country towns in Victoria) did the arbitrator fail to mention that I lived almost five hundred kilometres from the project manager?

In his letter to the President of the Institute, the arbitrator also asserted that he had ‘viewed’ all twenty-four thousand of my claim documents and that they were all also ‘viewed’ by the project manager and the technical unit but, of course, we now know this to be a lie.

As more and more documents arrived I found it harder and harder to just shut the door on the saga and walk away. I became increasingly convinced that I had been the victim of a deliberate act of sabotage, particularly in relation to the ‘beer in the phone’ episode but also in relation to other incidents. Why, I wondered, did the arbitrator not make any finding regarding lost faxes, both before and during the arbitration process? These lost faxes included valuable evidence but they had somehow been lost in Telstra’s network, en route to the arbitrator’s office for assessment by the resource unit and by Telstra’s defence unit. These two episodes became the focus for me and the driving force behind my persistence in trying to uncover the truth: I still couldn’t understand why the arbitrator had apparently not seen through Telstra’s attempt to make me out to be a drunk by saying that my fax problems were caused by alcohol in the fax/phone. Wasn’t it obvious to the arbitrator that Telstra wanted the faulty line to be hidden from the resource unit in case they stumbled on the truth – that Telstra’s lines were causing the problems?

The only way any of the members of COT could prove their cases was by using documents buried in Telstra’s archives; how likely were we to get our hands on them?

During question time at a Senate meeting on the environment, recreation, communications and the arts, on the 24^th June 1997, Telstra were asked a number of questions regarding their involvement in the supply of discovery documents to the COTs, under the FOI Act. By this time the Commonwealth Ombudsman had completed her findings relating to Telstra’s defective administration of the supply of discovery documents to Ann Garms, Graham Schorer and me. Obviously the repercussions of this defective supply of documentation had severely disadvantaged me when I was preparing my claim. Months after the arbitrator had handed down his decision in my arbitration, I was still receiving hundreds, even thousands, of discovery documents. Among all these documents I often found particular items that would have been most useful in supporting the information in my claim. By then, of course, they were of no use any more.

The public record of Parliamentary proceedings, ‘Hansard’, shows that, at a meeting on 27^th June 1997, a Telstra whistle-blower made a number of alarming statements to the Senate, including a report relating to the group he worked with while assessing the COT FOI documents. According to the whistleblower, this group was originally housed in the same building as Telstra’s solicitors. He said that, in the early days of his involvement, there were four technical specialists and about six people from Telstra’s accountants helping the Telstra team. The documents that were finally forwarded on to the COT members all travelled through this process first, he told the Senate.

According to the Hansard report of this question time, the following exchange then took place: The National Party Senator asked the whistleblower —

“So Telstra had masses of documents relating to each of these cases. Your job in this team was to interpret those documents and explain to — what lawyers — what those documents meant?”

The whistleblower replied —

“They were committed to an Excel file. My job was to determine what the documents were, who they were from, who they were to, what value they were. They were put on an ‘Excel’ file and that was put on the Telstra mainframe system. The legal people used them; (the accountants) took what they wanted out of it, I would imagine. What happened to them after I had deciphered them, I do not know.”

The Senator then asked —

“Are you aware of any of those listings, those explanations of the FOI documents, ever being made available to the complainants?” To which (the whistleblower) responded — “It was not part of my responsibilities.”

Certainly, in the time leading up to my arbitration, or during the arbitration itself, I never received any copies of any Excel file lists associated with my FOI claim documents. These documents were not forwarded to me until TWO AND A HALF YEARS AFTER the arbitrator had brought down his findings.

Still the TIO and the Minister continued to cover up the unethical way in which the COT arbitrations were handled.

But, back to the Senate debate on 24^th June 1997. The then-Shadow Minister for Communications raised the question of the eighteen million dollars that Telstra had paid out in legal fees during the COT arbitrations. In relation to the $1.74 million that the COT claimants had collectively received so far, he asked Telstra’s Group Director - Regulator of External Affairs:

“The thing that really is annoying is that the lawyers got millions, you paid them millions to go through all of this process and the claimants got $1.7 million — we know who won this case.”

The Shadow Minister for Communications later added: “Yes, but you went through a process of hanging people out to dry for a long time.”

After this statement from the Shadow Minister, a Labor Senator commented to the whistleblower:

“Is it not the case in regard to the particular matters I raised regarding Alan Smith, that your own advice in documents that I have seen — they purport to be from the (technical resource unit), dated 30 April, I think it is their document, I am not altogether certain so please do not let me misrepresent the matter. But I have a document here, headed up “TELSTRA SECRET”, which suggests that some time ago you were being advised that Mr Smith was likely to secure a substantial payment through a legal arbitration process. Is it not the case that probably it would have been in your commercial interest to have settled long before you did?”

This question was answered by the Telstra COT co-ordinator who had been in charge of the COT arbitrations and who, as mentioned previously, was also a member of the counsel to the TIO’s office. He replied:

“There were negotiations held with Mr Smith before the matter went into arbitration. We could not reach a final settlement with Mr Smith before the matter went to arbitration. It was then taken over by the Regulator in its investigation into what became the COT Report.”

The Telstra COT co-ordinator however, was one of the people who, back on 1^st October 1993, had received a high priority e-mail, later to become FOI document A04483, from another Telstra worker. This e-mail related to an article which was due to be printed in the Melbourne Age Newspaper on the following day. The e-mail noted, in part, that a journalist:

“… is to publish a story concerning Alan Smith who’s called for a public jury to hear his complaint. If we win — he shuts up! If he wins, the WFB … resign. (The journalist) is aware that this is just a media stunt given the extensive initiatives currently under way to resolve the COT matters.

Am currently discussing matter with (name deleted) prior to responding to (the journalist), who rang me with the news.

This will blow away or certainly diminish Mr Smith’s call for a public jury to solve his complaints.”

The Telstra COT co-ordinator also received a copy of another e-mail from the same person (FOI A05254) on 17^th November 1993, referring to a question being raised by Canberra Liaison Group regarding the “… merits/demerits of holding back the Bell Canada tests — information for a ‘cleansing’ programme after the mess of the Coopers and Lybrand Report.”

Later, at a Legislation Committee meeting in the Senate on 27^th February 1998, the same Telstra worker admitted to a Senator that he was aware that Telstra had falsified defence documents during another COT arbitration.

In my opinion, other similar documents show that Telstra’s COT co-ordinator and supplier of our FOI discovery documents was well aware of many of the different aspects and different issues surrounding our case but this does not seem to be the impression he gave to the Senators.

Back about the middle of 1993, with phone faults continuing to plague my business, I had asked that an independent person be appointed, perhaps by the Regulator or the Government, to take over my office for a week. I said at the time that, if that person could survive just one week with the phones in my office without going ‘nuts’ I would be amazed but I would walk away from the whole dispute. On the other hand, I suggested, if this independent person found that my complaints to Telstra were valid then the Chairman of the Board of Telstra should take over responsibility for seeing my case through to the end. My suggestion was not taken up.

Later we discovered that there had been a variety of problems at the Cape Bridgewater exchange which no-one was aware of, at the time. The first was that Telstra technicians had not insulated the exchange and moisture was causing some of the problems I was experiencing. The second problem was caused because the same technicians who had installed the exchange in August 1991, had also forgotten to connect the fault alarm (as discussed previously). Because the Cape Bridgewater exchange was unmanned, the technicians at Portland relied on this alarm to let them know if there were any problems. Obviously, if the alarm wasn’t connected, the technicians at Portland didn’t know of any of the faults that were occurring. Finally, heat in the unmanned exchange was creating even more problems. Much later a local technician discovered that at least one of the exchange systems failed when the ambient temperature reached 74ºF or 23ºC. Once this problem was discovered, a cooling fan was installed.

Telstra’s COT co-ordinator’s statement that Telstra had been unable to reach a final settlement with me before going to arbitration infers that I was stubbornly refusing to negotiate and that my stubbornness created the need for arbitration. In fact the Regulator’s General Manager for Consumer Affairs was well aware that I was actually pushing for a commercial assessment, and I had been pushing for this from the very beginning. The last thing the COT members ever wanted was a legal process. It is clear from many of the FOI documents I now have however, that from the start Telstra were only interested in forcing the COT members into a legal process, fully aware that, even if we won our cases, the cost to each of us would deliver a blow which, in the end, would mean that our group would be beaten by the enormous costs involved in mounting a legal case, while Telstra just continued to dip into the public purse.

There are still many questions waiting to be answered by Telstra. The Commonwealth Ombudsman’s office has also been attempting to extract replies from Telstra on my behalf. In one instance I asked the Commonwealth Ombudsman’s office to supply a copy of a letter from Telstra to my arbitrator on 25^th January 1994 and copies of subsequent fax documents sent by the arbitrator to Telstra on 11^th February 1994. In response to a request from the Commonwealth Ombudsman, Telstra wrote that they had finally located the documents in question in a file belonging to a past senior Telstra executive. They then forwarded the required letters on to the Ombudsman. This was a small win, but it was far outweighed by the other documents which were never supplied. For instance — early in the arbitration process I had asked, under FOI, to see documents explaining just how the rules of the arbitration had been arrived at, particularly the first draft of these rules. When the Commonwealth Ombudsman passed this request on to Telstra she received the following reply:

“Telstra has been unable to locate Mr (name deleted)’s further general files which include copies of the correspondence received from (the arbitrator’s firm) in relation to the development of the Fast Track Arbitration Process and I am told that these files, along with other documents, were disposed of by his personal assistant sometime after he left Telstra’s employ.”

So, it seems that everyday letters can be located but important evidence, relating to a legal process such as my arbitration, were lost forever. This missing evidence could well have proved that the so-called ‘independent’ rules that the members of COT had signed were actually not so independent after all.

Many documents mysteriously disappeared and many organisations disassociated themselves from my arbitration over the years. When I raised issues with the Institute of Arbitrators in a letter dated 18^th January 1995, I was advised by the then President of the Institute that: “The Institute of Arbitrators Australia has absolutely no connection with the arbitration between Telstra and yourself.”

To this day I believe that he was probably told that, but I have evidence from the TIO’s office that, in fact, at the time of the FTAP, the TIO and my arbitrator stated in writing that the President of the Institute helped draft some of the rules of the arbitration. This man is now a County Court Judge.

This ‘non-legalistic’ arbitration was cursed with confusion and complications from the very beginning and even now no-one seems willing to explain why so many of my claim documents disappeared during the process. When I discovered that the technical resource unit only assessed my phone and fax faults from February 1988 to August 1994 I became even more convinced of a conspiracy of immense proportions; a conspiracy not only involving the arbitrator, Telstra and those who administered the procedure, but also involving people higher up within Telstra, people who had the power to hide evidence. Either my faxes were being intercepted en route to the arbitrator’s office, or the arbitrator’s office was not passing them to Telstra’s defence unit so they could be addressed as part of the arbitration procedure.

It has been stated by Telstra, their lawyers and a number of independent technical experts that, between 26^th May and 19^th August 1993, because the malicious-call-tracing equipment locked my 1800 line up for ninety seconds after the completion of each successful call, no incoming call could have been answered during this ninety seconds. This proves, of course, that at least some of my calls were answered somewhere other than at my business. According to Telstra’s own data, at least forty separate incoming calls were diverted during this particular period, without including Telstra’s test calls. So, were my faxes, originally intended for the arbitrator’s eyes only, also ending up at this unknown location?

How many Australian businesses have lost out to aggressive and unexpected take-overs when they were in a vulnerable position? How many of these businesses were surprised by the take-over bid because they believed no-one knew their situation? How many were hijacked because someone had access to their telephone conversations?

How easy has it been to target my business, under the nose of the Government? How many legal battles in Australia have been open and shut cases with clear evidence to support a win and, at the last moment, the case is lost because the opposition has unearthed sensitive information? How much information, trusted to the Telstra network by Australian citizens and businesses, believed to be a private exchange of information between two people only, is actually being high-jacked via the telephone network?

As an example, in my case alone, Telstra have listed the documents they received as part of my claim in arbitration but this list is forty-three documents short of the number that I forwarded to the arbitrator, to be sent on to Telstra’s lawyers. Even the most unscrupulous arbitrator in the country would not withhold this much claim material. So – where are these documents?

Even more than lost faxes, my lost incoming phone calls add up to an awful lot of lost revenue. Although some of my customers returned annually for more than ten years, I still couldn’t afford to loose forty calls in three months -- forty prospective new customers. Perhaps these people are now regularly visiting another holiday camp somewhere -- who knows? What we do know, however, is that so far the Australian Government seems powerless to tackle the ‘big brother’ of Telstra’s corporate management team.

In Chapter 34, you will see how much our Government cared when a small business operator highlighted the dangers of documents lost in Telstra’s network. If I was representing the Ford Motor Company, or BHP, or one of any number of other multi-national companies in Australia, I am sure these complaints would have been investigated long ago.

CHAPTER 34

My patience, already stretched past normal endurance, snapped. Where had all the documents relating to problems after August 1994 vanished to? After all, these problems continued right through to July 1998 — people were still writing to me describing faults they had encountered when attempting to send faxes to me or when I attempted to send faxes to them.

Around June 1998 I received letters from five different businesses, listing the fax problems they had encountered. These letters were all passed on to the TIO’s office. One of these letters, from a Secretarial Service, listed the problems they had encountered, including:

• blank paper coming through in the middle of transmission
• a strip of approximately 3 cm coming through
• distorted figuration that looks like a stretching of letters appearing at the end of a page
• a page with black lines all the way as described above.

They went on to say:

“As you can appreciate, being the only secretarial service in (the area), 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.”

Then, to compound my despair, the Australian Federal Police wrote, on 30^th July 1998, to tell me they were not able to assist me because my allegations were not important enough. If the Federal Police can’t understand the importance of forty-three faxes not reaching the arbitrator then what other avenues are left to have these matters correctly investigated? For example, 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 and no-one will investigate.

Shortly after this I received another knock-back. In a letter dated 18^th August 1998, the Attorney General notes that he “cannot be of assistance … in this matter.” If the Attorney General’s office is not concerned about the loss of legal documents while in transit via a fax machine, and the Federal Police can’t help either, then who can?

I believe that piracy of faxed documents may well be rife in Australia, not only documents relating directly to Telstra, but also documents associated with business in general.

On the 1^st July 1998 I wrote again to the Deputy Telecommunications Industry Ombudsman, relating my concern that not only were some of my faxes being ‘lost’ in transit, but others were being disfigured and made unreadable. I copied on to him a number of documents I had received back from the arbitrator’s office when they returned some of my claim documents to me after the arbitration had been completed. These documents were later forwarded to both the Federal Police and to the Attorney General as well as to the Minister for Justice. They were documents which had been originally faxed to the arbitrator but which had arrived in his office as only half pages or as blank pages. Even so, my Telstra fax account shows I was still charged for sending these illegible documents. The TIO’s office still refuses to address these issues.

Bank statements which I faxed to the project manager’s office arrived at their office with no detail, although still clearly bank statements. In fact, some of these mostly-blank pages have a hand written note indicating “Smith’s Bank Statements”. Since this is not my handwriting, I have asked the TIO to find out whose handwriting it is but, once again, I have not received a reply.

When I saw these strange faxes I asked the TIO how the project manager’s office could possibly have assessed my financial position correctly if some of the documents I sent them arrived minus the information they needed for their valuation. Again — no answer from the project manager.

Back on 22^nd April 1994 the Regulator had also received blank pages from my fax when I attempted to send them copies of my Telstra accounts showing massive incorrect charging. When I checked the accounts covering the 22^nd April it was clear that I was charged for many minutes of transmission time from Cape Bridgewater to the Regulator in Melbourne. Even the Regulator’s fax journal registered that these blank pages took minutes to arrive. I have since tested this situation by sending blank sheets to a Melbourne address. They took only ten to twelve seconds to go through.

These ‘blank pages’ which arrived over the years, all had a small, unidentified symbol or icon in the top right hand corner of each page. I have pointed this out to the Federal Police, the Attorney General and other people. On 29^th June 1998 my solicitor also received two blank pages from my office. These two pages both had strange, square symbols, not exactly the same as the earlier ‘blank page’ symbols, but not much different either. So whatever happened to my faxes during the arbitration process seemed to still be happening in 1998

Another fax fault, which I spoke about during the arbitration, related to the TIO’s legal counsel who attempted to send me a copy of the arbitration rules. In this instance I was the one to receive pages that were blank, save for a smaller version of the mysterious ‘fax symbol’. By that stage I had already complained that these fax problems — the pages with only the ‘fax symbol’ — had only started to occur once I signed the original commercial process, the FTSP, and that my accountants, my solicitors and various other advisors had all received these strange pages.

After this, I didn’t see a full copy of the FTAP rules until I signed them on 21^st April 1994. Could it be that my copy of the rules of the arbitration had been lost because of these fax problems? Like various Senators, I was misled by the TIO and his legal counsel. The Senators and I believed that the rules were non-legalistic and so I signed without seeking a legal opinion. Once again my trust in the TIO let me down.

A letter dated 21^st June 1996, from Telstra, talks about providing copies of ‘all the FOI documents and correspondence’ which they received ‘from the arbitrator, from 1^st January 1994 to 30^th April 1994 and from 1^st September 1994 to 31^st May 1995’ regarding my FTSP and FTAP. This statement indicates that they did not provide copies of any correspondence received from the arbitrator between May and August 1994. Even though I have requested this information under FOI, Telstra insist that there are just too many documents. It is however interesting to note Telstra’s reference to ‘all the FOI documents and correspondence’ when looking at the following listing of faxes which I sent to the arbitrator. This list has been taken from my phone account and it shows that forty-three more faxes left my office for the arbitrator’s office than those which Telstra say they received from the arbitrator. Where are these forty-three faxes? Why were they not addressed by Telstra in their defence of my claims? Why were they not assessed by the resource units attached to the arbitration?

Over the years I have written more than eight hundred letters to a wide variety of people including the Treasurer, the Prime Minister and many others. Because I have not been able to secure help from any of these sources I had no other alternative but production of this book, thereby breaking the confidentiality agreement I was coerced into signing.

I have also written 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 all the ‘missing’ forty-three claim documents, under the rules of the arbitration which Telstra and I both signed.

As I have explained, many documents vanished during the arbitration process, including some that were not received by the arbitrator from me during the process and others that were not received by me from the arbitrator or the TIO’s legal counsel after the completion of my arbitration. In relation to this, points 6 and 7.2 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 Telstra and to the Arbitrator in duplicate, its Statement of Claim and any written evidence and submissions (“the Claim Documents”) in support of that claim.

And, at point 25, the rules state:

Return of Documents after Arbitration

25. Within 6 weeks 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.

The FTAP rules are quite clear: all the material that I submitted to the arbitrator during the procedure was to be sent on to Telstra and then to the TIO’s legal counsel (who had been appointed as the special counsel). This meant that they would have copies of everything I sent to the arbitrator whether I sent it through the mail or by fax. Telstra’s list of documents which they say they actually receive from the arbitrator did not include forty-three faxes however, even though I was charged by Telstra as if these faxes had arrived at the arbitrator’s office. Telstra’s list of documents also did not include a number of bound copies of documents which I had sent through the mail.

Under the rules (point 25), I should have received back from Telstra’s defence counsel a complete copy of all my claim material (including the elusive forty-three ‘missing’ faxes). So far the TIO has not instructed Telstra or their legal counsel to supply me with these ‘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. If this is so, then it is pointless to direct them to return these documents since they haven’t got them now and have never had them. One can only wonder why the TIO did not follow his ‘duty of care’ when administering my arbitration.

In an effort to retrieve ALL my claim documents I have contacted the Minister for Communications, the Minister for Justice, the Attorney General, the Federal Treasurer, and, of course, the TIO.

All these people have been asked to instruct the parties involved in this process to please return my documents — ALL my documents, not just a few of them.

The TIO had a duty to act impartially: the members of COT agree that the evidence we have, indicates quite strongly that he didn’t act impartially when dealing with COT issues.

According to a reliable source, both the TIO and the Minister for Communications visited Atlanta in the United States during those Olympic Games, with their fares and accommodation paid for by Telstra. Although, in my opinion, there is nothing illegal about this, it does seem to me to raise questions about impartiality. After all, both these men were involved at a high level in a process (the COT versus Telstra issue) in which Telstra was a major player. I can’t understand why they weren’t doing everything they could to be clearly seen as totally impartial. If I had been in the TIO’s shoes, or the Minister’s shoes, I would certainly not have accepted such a trip from Telstra: my conscience would not have allowed me to accept such a gift, knowing that the COT members had been treated so badly by Telstra in their quest for justice.

The TIO had forced the four COTs to abandon a perfectly workable commercial assessment process (the FTSP) for an arbitration procedure which the TIO and his legal counsel had incorrectly assured us would be non-legalistic. The administrator of the arbitration procedure (the TIO) did not carry out his duty of care to ensure that the arbitrator he commissioned was suitably qualified to preside over such a complex process as the COT arbitrations. From the perspective of the TIO, the Minister for Communications, and others involved in drawing up the procedure, this should have been seen as a disaster from the very beginning. COT members were advised by the TIO that the rules of the original arbitration process were drawn up by the arbitrator in consultation with the then president of the Institute of Arbitrators Australia, who is now a County Court Judge. The presidency of the Institute changes annually and it is alarming therefore for us to later be advised, first by the President at the time of our arbitrations, that: “The Institute of Arbitrators Australia has absolutely no connection with the arbitration between Telstra and yourself ...” and then later, in a letter dated 10^th September 1996 to be advised by another president that the Institute was not asked to supply a graded arbitrator when the COT arbitrator was appointed. In his letter, this second President goes on to say that “there is always a risk” when using an arbitrator who is not correctly graded.

Since one of the two people drawing up the rules of the arbitration was, at that very time, president of the Institute of Arbitrators, didn’t he have a duty to alert the TIO to the fact that the person selected to handle the arbitration was not sufficiently qualified to do the job correctly? Remember, the arbitrator actually sat for his exams for this qualification during the arbitration procedure, and failed!

Over the many years I have been involved in this debacle, the COT members have continually ensured that the TIO, the Minister for Communications and the Minister for Justice, have all been sent up-to-date information which supports our various claims. In my case, I have provided documented proof, again and again, that my arbitration was not carried out according to the principals of natural justice.

As previously mentioned, one of the many issues which have been raised with these three people relate to the completed financial report, prepared by the arbitration project manager, who had been appointed to assess what effect Telstra’s defective supply of service had on my financial losses but, on instructions from my arbitrator, this project manager withdrew a large part of the final report, including all the figures showing how he arrived at his final assessment. Both the project manager and the arbitrator must have been aware that removal of this information would seriously disadvantage my forensic accountant in the preparation of his reply: the missing information meant that he had no way of knowing how the project manager arrived at his findings. Not only were the TIO, the Minister for Communications and the Minister for Justice all alerted to this situation, but the issue was also raised with the Attorney General.

All these people were also alerted to the fact that the project manager’s company was advising the Government and also overseeing the investigation into Christopher Skase’s financial situation (at the time, Christopher Skase was a fugitive from Australian justice and living in Spain). If this company could be influenced to hide their calculations in my case, could they be influenced to do the same in other, larger cases? We have to wonder too, about earlier big public cases that this same firm had also advised on.

Although I understand the position the project manager found himself in, I cannot condone his actions in withdrawing information from the finished report, at the request of the arbitrator. We must also seriously question the firm’s ethics in allowing this situation to remain in place. Why didn’t they raise the matter of an arbitrator influencing the outcome of their investigation? If such a highly regarded organisation can be swayed to change a completed legal report then it leaves doubt about how often this could happen in the future (as well as how often it had happened before!).

Lost documents and changed reports have plagued my arbitration from the beginning and the Australian Broadcasting Corporation (ABC) seemed to echo my feelings in their press release of 20^th September 1998, which was headed “QAI says Telstra hid report”. In this press release, the ABC go on to say: “A prominent Australian telecommunications company has accused Telstra and the Federal Government of a cover-up for failing to make public a report on billing problems at Telstra.

QAI Australia Limited is suing Telstra for $14 million in damages, and is attempting to get a copy of the report, commissioned by Communications Minister Senator …, through the Freedom of Information Act.

The Government has agreed to release an edited version of the report, but Telstra has appealed against this decision.

QAI’s Managing Director … says it should be released.

“If the report is not material, if it has little relevance or significance, why the big secret?” (the Managing Director) said.

“What we have here in my view is something that’s akin to a fairly substantial cover-up, so if it is harmless, release it.”

On 17^th June 1998 a letter arrived at my office, from the office of the Minister for Communications, regarding my claims that neither Telstra nor my arbitrator addressed the incorrect charging which I included in both my interim submission and in my final claim documents. The Minister’s letter stated, in part: “The TIO is currently investigating your claims of overcharging on 1800 numbers. It is also investigating the disconnection of your gold-phone service.

The Government has no jurisdiction to intervene in matters being examined by the TIO.

The TIO scheme applies in addition to the general rights consumers of goods and services have flowing from contract law and forms of consumer protection such as under the Trade Practices Act 1974, and does not take away from those existing rights.

A complainant may elect within twenty-one days whether or not to accept the decision of the TIO. In accepting a decision, a complainant releases the member carriage service provider from all claims, actions etc. in relation to the complaint.

In the event that the complainant does not accept the decision of the TIO, he or she may elect to pursue another forum. The member is then fully released from the TIO’s decision.”

As I have said, I received this letter on 17^th June 1998 but I have still not heard what the TIO intends to do regarding the incorrect charging on my 1800 line although, in December 1998 I was advised that the TIO sought legal advice on this matter six months previously.

The Minister’s office also mentioned the issue of the disconnection of my gold-phone. Telstra disconnected this phone in December 1995 and it remained disconnected until I finally sold the business in 2001. My customers continued to complain about not having easy access to a telephone when my office was locked for the night. Are we really living in the democratic society that our Prime Minister keeps referring to?

According to a Hansard report on 30^th November 1995, the last Senate sitting before the Liberal-National Party Coalition won office, and therefore the last sitting before the Shadow Minister for Communications became the Minister, he helped prepare a motion proposed by the National Party Leader in the Senate. This motion stated: “That the Senate calls on the Minister for Communications and the Arts to establish an independent inquiry into the behaviour of ’Telstra’ in respect of the resultant costs to COT members of the extensive prolonged and excessively legalistic arbitration process.”

This motion was not opposed in the Senate by the then-Labor Government but even when the new Communications Minister had the power to carry out his own motion of three years before, there was still no inquiry, my gold-phone remained disconnected and the TIO is apparently still considering his options.

In the last paragraph of the letter which I received on 17^th June 1998, the Communications Minister’s office stated: “The Government has no jurisdiction to intervene in matters being examined by the TIO. The Minister also wrote to Mr David Hawker MP as a result of representations you made to his office. The Minister has informed Mr Hawker that it is inappropriate for the Government to intervene in this matter, particularly while it is still under investigation by the TIO” and yet this same TIO wrote to Mr Hawker at about the same time, advising Mr Hawker that I had only just raised the issues of incorrect charging on my 1800 service. In response to this statement I was able to supply Mr Hawker with a copy of one of the first letters I had written to the TIO regarding incorrect charging: this letter is dated 3^rd September 1995. I also sent Mr Hawker copies of another ten letters which I wrote directly to the TIO, the last dated 31^st October 1995 (making eleven letters to the TIO between 3^rd September and 31^st October 1995 — all relating to incorrect charging). How the TIO could possibly think I had ‘only just’ raised this issue, in 1998, is beyond understanding — I have continued to write to him regarding this matter ever since. According to records compiled by my secretarial service, I have actually written over one hundred and twenty letters to the TIO in all; most of them related to incorrect charging.

The TIO himself actually replied to some of these letters. One of his replies, dated 28^th November 1995, stated: “The resource unit have provided clarification of the reason for deletion of references to a potential addendum on possible discrepancies in your Telstra bills from the final technical report as follows.

‘At a late stage of the arbitration process, at the time of preparation of the technical evaluation report, there were discussions about billing issues which had been raised by Mr Smith. A draft of the technical evaluation report therefore included references to the billing matters, which it was thought might require further work beyond the time of issue of the report.’ ”

Later in this same letter, the TIO goes on to say: “A second matter involved 008 calls. Again this matter was current at a late stage (April 1995) of the arbitration process. This matter concerned possible over-lap in the records of 008 calls made to Mr Smith, and for which he was billed.”

On 17^th February 1998, by registered mail, I sent the TIO a forty-nine page bound submission, detailing examples of incorrect charging issues. This submission included copies of some pages taken from the transcript of the oral hearing conducted on 11^th October 1994, between Telstra, the arbitrator and myself. I reminded the TIO that a representative from his office also attended that oral hearing. Pages 92 to 94 from the transcript clearly show that my claim documents relating to Telstra’s incorrect charging were accepted into the arbitration procedure at the oral hearing, having been previously submitted in my interim claim. Pages 91 to 93 cover my explanation of the significance of the material I was submitting and, on page 94 the arbitrator is reported as stating “I don’t think we need any further examples.”

Taking all this into account, with the TIO clearly having mountains of evidence of incorrect charging in his possession at least from the day of the oral hearing, how can he state that the 1800 incorrect charging matter was only ‘current at a late stage (April 1995) of the arbitration process.’?

On 28^th October 1997, the TIO wrote to Telstra, in relation to the incorrect charging on my 1800 line. This letter shows that the TIO has finally (two and a half years late) asked Telstra to advise whether they “... agree that this matter was not addressed ...” in my arbitration.

I have never received a copy of Telstra’s response to this October 1997 letter from the TIO.

According to information provided on good authority, a judgement against Telstra in the matter of incorrectly charging their customers on a regular basis would set a dangerous precedent so, even though my evidence clearly shows that this has been happening for some time, it seems that Telstra will avoid facing the issue at all costs.

Other pages taken from the oral transcript have also been sent to the TIO, and to the Minister for Justice as well as the Attorney General. Pages 37 - 38 and 40 - 41 are particularly interesting. From the information in these pages it is clear that, at that time at least, the arbitrator intended to address Telstra’s unethical tapping of my phone lines, particularly in relation to their listening to my private phone calls during the arbitration procedure. On pages 31 and 32 the arbitrator is reported as confirming that, if I included my allegations of telephone bugging in my claim, then Telstra would have a right of reply. It is clear from my reply that I wanted these matters addressed as part of my claim. The transcript actually states: “Arbitrator to Smith: ... and again I make sure Mr Smith understands what it means — is that 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?

My reply is recorded as being: “No, I will leave it in the claim because - - - -”

To which the arbitrator responds: “You understand if you leave it in your claim, Telstra is entitled to ask what is the basis for this allegation?”

My reply: “Right, Okay, yes, all right.

The arbitrator: “So you want to leave the allegation in?

My reply: “I will leave the allegation in.”

If Telstra is allowed to get away with not addressing past eavesdropping on businesses, while they are Government owned, then what does the future hold for Australia once it is completely privatised, with no Government control at all? Security for all Australian businesses is at risk.

In my own situation, legal documents were ‘lost’ between my fax and their intended destination and my private and business arrangements were known by Telstra a long way in advance of the actual event, even while I was in litigation with them. These issues, although raised again and again with the appropriate people, have still not been explained. How many other businesses are having their private documents intercepted? 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 off and passed to someone other than the intended recipient, thereby illegally giving information to someone who could well use it to the detriment of the original sender?

An article on electronic security in the Melbourne Age newspaper of 10^th October 1998 reported that, even back then, it was possible for anyone with access to the phone network to monitor faxes as they were sent and to keep copies, without the sender’s knowledge. This article also pointed out that telephone operators could eavesdrop on calls and Telstra had the ability to access all calls, though this is supposed to be under strict controls. The Age article went on to ask questions in relation to this apparent easy access to our personal and private information: What could someone use this information for? What if it is misinterpreted? Where might this information end up?

How can the Government privatise an organisation which has run vicious and vindictive campaigns against a group of their own customers simply because those customers took up their right to challenge the service they were being provided with? Before the Bill to sell off the rest of Telstra is passed, this question needs further investigation by the Senate as a matter of priority.

If, when I first raised the issue of my faulty phone services, everyone involved had abided by the rules of natural justice, I would have reluctantly accepted the arbitrator’s award but, because I discovered that the arbitrator himself had breached not only the rules of natural justice, but also the rules of the arbitration procedure itself, I couldn’t just walk away. If I had not seen the documents inadvertently given to me by the arbitrator’s secretary, and understood what these documents proved in relation to the unjust handling of my case, I would probably have reluctantly accepted the award the arbitrator handed down. If Telstra officials had addressed the issue of lost faxes and eavesdropping, I would probably have reluctantly accepted the award — if the arbitrator had addressed the issue of lost faxes and eavesdropping, I would probably have reluctantly accepted the award.

The lost faxes in particular raise a number of questions, not the least being — since many of the missing faxes were actually my claim material, and they therefore never reached the arbitrator, how could he arrive at a fair decision without the information contained in those important claim documents?

And many questions remain unanswered for the members of COT.

• Why didn’t the TIO check the credentials of the appointed arbitrator to determine that he had the qualifications necessary to run such a complex arbitration, i.e. that he was a graded arbitrator, acknowledged by the Institute of Arbitrators as the person best suited to run such a complex case?
• Why didn’t the president of the Institute of Arbitrators alert the TIO to the elected arbitrator’s lack of appropriate qualifications?
• Why didn’t the TIO’s legal counsel, who were supposed to advise the TIO on legal matters, advise the TIO that the appointed arbitrator was not sufficiently qualified?
• Why did the Institute of Arbitrators, in their letter of 19^th January 1996, deny that the Institute had any connection with the arbitration?

As it happened, neither the rules of natural justice nor the rules of the arbitration procedure were abided by and, after the arbitration had been ‘completed’ it was only inadvertently that I was allowed to see sensitive documents which were apparently hidden from me during the arbitration. If the arbitrator had raised the issue of Telstra using falsified and impracticable documents as part of their defence, then his integrity would not need to be questioned because it would be clear that he wasn’t being influenced by Telstra. Again, this didn’t happen and so another question is raised:

• Was the arbitrator unduly and illegally influenced and therefore no longer an independent adjudicator in my arbitration?

All Australian citizens have a duty of care to expose unlawful conduct if that conduct could be detrimental to the welfare of other Australians. I may have once been a ‘Pommy’ but now I consider myself a ‘true blue Aussie’ and I have spent many years trying to expose the fiasco I found myself caught up in, because I believe the law should be observed at all costs. Without a democratic society we would no longer have the freedom we currently take for granted; a freedom so many young Australians have gone to war to preserve. The law is in place as a protection for all Australians, not just those politicians and corporate lawyers who choose to manipulate the system for their own benefit, often to the detriment of other Australians, as this story has demonstrated.

On page twenty-eight of his award, under the heading ‘Faults Caused By Claimant’, the arbitrator appears to have based at least part of his award on a belief that Telstra’s defence documents were based on fact. He says:

(c) Telstra nevertheless maintains that most reported faults were attributable to mis-operation by the claimant or by his callers or to normal wear and tear on the equipment they were using.

(d) In this regard I have noted for example, the Statutory Declaration by (name no. 1 deleted)*, a senior technical officer (grade 1) who concluded that specific fault allegations involving the claimant’s answering machine, cordless phone, and facsimile machine could only be attributable to operator error. I have also noted that statement by (name no. 2 deleted)*, senior Telstra technician officer grade 2, to the effect that reported facsimile machine faults were attributable to customer error.”

* These names have been deleted by the author to protect individual Telstra employees. The author and other COT claimants believe that a number of Telstra employees were pressured by the Telstra Corporation into giving false statements in support of Telstra’s defence.

The following statements, taken from Telstra’s own archival material, completely contradict the Statutory Declaration made by the first technical officer mentioned in point (d) above.

1. From an early fault report dated 5/3/93: “Rang Cape Bridgewater but Mr Smith was out, his assistant stated she had received several calls where on lift off all she heard was dial tone, this is after we shifted 267 267 and 267 230 into system 3 in the RCM. I believe this may be tied up with the Portland AXE Network problem.”

2. FOI document K00960, dated 31^st January 1994, in relation to my fax line, further states: “Fax tests to Cape Bridgewater needed as Telstra’s (name deleted) had problems faxing Smith Telstra information.”

3. And again, FOI document R37914, dated 19^th March 1994, also in relation to my fax line, states: “Found fault to be in RCM at the Cape Bridgewater. Common equipment card due to data corruption.”

Both the engineer the memo was addressed to, and the National Facsimile Support Centre, had experienced fax problems themselves, when attempting to send faxes to my business. Further FOI documents (K03752 & 7), currently being held in a safe place, show the actual pages and half-pages received by the writer of this memo from the addressee on 28^th October 1993.

The faults experienced by these two Telstra people continued to plague my business right through my arbitration (1994/5) and up to at least July/August 1998. As I have explained earlier, during 1994 I alerted both the Minister for Communications and the Regulator to problems I had sending faxes during my arbitration. It seems however, from statements in his ‘award’, that the arbitrator accepted that the first Telstra technical officer (in point (d) above) had presented the arbitration with a true and factual Statutory Declaration and that my fax faults were therefore ‘attributable to operator error’. Obviously the technical officer has committed an unlawful act of perjury in a legal arbitration process

I wonder if the TIO has not investigated my fax problems because he believed this perjured information, even though the problems with my fax line were still being experienced long after my arbitration was completed? It seems clear to me that he too believed there were no problems with my fax, simply because the technical officer’s Statutory Declaration suggested that I was the problem, not Telstra.

Remember also that the TIO Board is made up of representatives from a number of Telecommunications carriers, including Telstra. Since the TIO’s office acted as administrator to my arbitration and should therefore have been aware of the unlawful way in which this procedure was conducted, they should have convened their own investigations into the serious matters raised by any false statements or Statutory Declarations which were provided to my arbitrator. All this information was supplied to the TIO Board and their lawyers in August/September 1999. I am still waiting to see what might or might not happen next.

It seems to me that some of the issues around the COT arbitrations were also deliberately covered up by the Australian Government so they would not have to be correctly investigated before the partial sale of Telstra. My evidence proved conclusively that Telstra continually incorrectly charged me on all three of my service lines over a prolonged period. This is against the Australian Trade Practices Act. If this incorrect charging was occurring on my phone lines, how many other lines had the same problem? Surely then the Australian Government should have notified the share-buying Australian public that it appeared that at least some of Telstra’s profits had come from incorrect charging of their customers?

I believe that the Minister for Communications had a duty of care to:

• launch his own investigation into the incorrect charging issue because he was aware that neither the arbitrator nor Telstra had investigated the issue properly, and
• issue a statement, in the share prospectus, explaining that some of the revenue reported in that prospectus had been accumulated from incorrect charging practices.

This story certainly indicates that my arbitrator was not totally impartial. By not addressing the incorrect charging, the short duration calls (which probably indicate call diversion) or the phone bugging, the arbitrator favoured Telstra to my detriment.

If all this happened to me, and it certainly did, who else could it happen to? Could it happen to you too? And, if Telstra can do this, how many other large, powerful corporations are wielding the same sort of power over small business and individuals alike?

It should be remembered that COT members are not only fighting for justice in their own individual cases, they are also fighting for the rights of the Australian public — we are all being ‘ripped off’ by Telstra as long as they are allowed to continue to send out incorrect telephone accounts.

Questions must be asked about the number of alarming connections that seem to exist between Telstra’s lawyers and some high profile politicians. I have alerted the President of the Liberal Party, who was also the Chairperson of the Counsel of the TIO’s office, to this alarming situation, but had no response. Surely these people must be aware by now of the conspiracy and cover-up that has taken place here? Certainly most of them have been given plenty of information which should prompt them to dig deeper.

This book has not only been written to alert the public to the treatment meted out to the members of COT, it has also been written to raise the issue of the cover-up carried out by legal vultures and large corporations and, hopefully, to stop such a situation ever arising in Australia again.

Some of the documents I have recently received from the TIO under the new Privacy Policy Act indicate that he was seriously concerned about my allegations. Many of these are letters I wrote to the TIO which now have handwritten notes added, apparently notes made by the TIO himself. In one instance the TIO has written: “These are quite serious allegations. We need to respond to specific letters Smith says weren’t forwarded or received and provide answers on each.” Even so, I have never received this information from the TIO, and the phone and fax lock-up and billing faults continued well into 1998 and on.

On 26^th February 1999, I sent three faxes to another COT member: the first and third of these faxes arrived at his office as intended but the second never arrived. His fax journal covering the time span during which I sent these faxes from my fax machine shows the two faxes which were received and my Telstra account for my fax line, also covering the time span during which I sent these faxes shows all three as transmitting correctly. The fax line number for the COT member appears quite clearly on my phone bill. Obviously, according to Telstra, I sent these faxes to the right number and so I was duly charged for the long-distance transmission of them. Comparison of my fax account to his fax journal confirms that he received the fax I sent at approximately 10:53 and the fax I sent at approximately 1:35 but the document sent from my fax at 11:20 did not arrive.

If I hadn’t happened to phone him to discuss the document which didn’t arrive, we would probably never have discovered that 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 many more occasions.

Back on 23^rd May 1994, I sent seven faxes to my arbitrator. According to a signed document later supplied under FOI by a Telstra senior executive, Telstra acknowledges that these seven faxes did not reach the arbitrator’s office because, according to the arbitrator’s secretary, their fax line was engaged when I sent them. After receiving this signed document I asked for Telstra’s technical data print-out for this particular day and, lo and behold, these seven faxes appear as having arrived at the arbitrator’s office. And, you guessed it, my Telstra account shows that I was charged for these faxes as if they arrived at their intended destination, just as I was charged for the fax I attempted to send to the other COT member, four and a half years later on the 26^th February 1999.

I have already related the story of forty-three faxes that ‘went missing’ over the months during which I was lodging my claim with the arbitrator. The seven missing faxes mentioned above are included in this total of forty-three. When I examined Telstra’s defence unit’s list of documents they received from the arbitrator, it was clear that they had not received any of these forty-three faxed claim documents and yet Telstra has charged me for all of them, some lasting for up to eight minutes (long-distance). The length of transmission time indicates that many pages were being sent.

Two important questions must be asked, in relation to these episodes of vanishing faxes:

1.Where are these forty-three documents?

2.Are they in the same place as the recent fax which didn’t reach the other COT member?

If you are still not convinced that something strange is afoot here, either a serious fault in Telstra’s network or some under-handed skulduggery, then I have yet another story to add to this list. Back in March of 1996 my secretarial agency in Melbourne phoned to discuss a document that had been faxed to me earlier in the day. My fax journal for this period shows quite clearly that the fax did not arrive at my office and yet the Telstra account for the agency shows that it did arrive. They were charged for a long-distance transmission lasting four minutes and twenty-five seconds.

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, never discover that they didn’t arrive at their intended destination and so happily pay their Telstra accounts.

As you are aware, having read this far, neither Telstra nor the arbitrator addressed the incorrect charging on my 1800 line and my fax line, nor did they address the problems associated with my gold phone and it’s later disconnection. Now we see that at least some of these problems continue right up to the present day and yet they have still not been addressed by Telstra or the elusive Telecommunications Industry Ombudsman.

Over the years I have attempted to raise these issues with the Australian Government in a variety of different ways. There are a number of politicians and senators who have the power to call for an investigation into the matters I have raised: I have written to them all, including the Prime Minister, the Federal Treasurer, the Attorney General, the Minister for Communications, the Minister for Justice, the Parliamentary Secretary to the Minister for Communications, the Minister for Small Business, the Federal Member for Wannon, the Telecommunications Industry Ombudsman, the Deputy Telecommunications Industry Ombudsman, the Australian Competition and Consumer Commission.

Despite numerous pleas to each of these people, none of them have succeeded in getting Telstra to account for their incorrect charging, or for faxes that don’t arrive at their destination. In August of 1998 I forwarded on to the Telecommunications Industry Ombudsman’s office, copies of letters from four different professional organisations, each detailing their experiences of faults related to my fax line over the years following the ‘completion’ of my arbitration. Some of these letters refer to incidents as far back as 1994 or as recent as August 1998 and each organisation states that, although they send and receive many faxes, mine is the only one to give them so much trouble.

On 14^th January 1998 Telstra sent two officers to meet with me. My accountant/business adviser was present at this meeting to take the minutes and observe the process. These two executives made it quite clear that they were then negotiating with the TIO’s office regarding a proposed assessment of the incorrect charging issues I had raised. During this meeting I showed the Telstra people a fax that had arrived on my machine from the Crown Casino in Melbourne. This fax was obviously not intended for me and it was one of many I was to receive over the following months, all from within the Crown Casino complex. Finally I complained to the TIO in July 1998 and, although the TIO’s office never responded to my complaint, these faxes from the casino then stopped coming. I have never been able to understand how these faxes, originating from the casino, reached my fax machine. Not one of them was addressed to a fax number remotely like mine; they were not even in a similar range. In fact, most of the numbers the faxes were intended for were four hundred and fifty kilometres away.

After the meeting with the two Telstra officers I waited for some sort of resolution of the faults I had raised but nothing happened until October 1998. At this stage of the proceedings I had been paying only part of my fax account in an effort to highlight the problems that had not been addressed. Even though the account for this fax line was still in dispute, Telstra disconnected the line. I continued to pay off the account although this meant I was paying off the rental for a service that no longer exists. The final payment was made on 20^th March 1999, six months after the line was disconnected. This means that, from October 1998, I was forced to move most of my office duties to my residence in order to connect my fax machine to a working phone line. My faxes were all sent from my residence from then on and, although some faults continued to occur, there were not nearly as many as I had suffered prior to July 1998. On 28^th January 1999, I sent a fax to a business associate some distance away. My Telstra fax account shows charges for two fax calls to his number on this date, one at 08:23 pm, lasting for forty seconds, and a second call at 08:24 pm, lasting for three minutes and thirty-one seconds. According to my fax journal, the first call was not answered — so why was I charged for this call? Remember, these are all long-distance, timed calls, not a single twenty-five cent local call charge. And then, according to my associate, the second fax never arrived — so where is it?

If you are still thinking that all these examples of missing faxes could be simply glitches in the system, and of little importance, there are even more astounding and as yet unexplained events. On 19^th March 1999, my secretarial agency in Melbourne sent a six-page fax to my office. My fax machine doesn’t cut off each page, so a multi-paged fax comes off the machine as one long strip of paper. As I watched this fax roll off the machine, it began to ring as if a new call was coming in, even though the line was fully engaged at the time. The fax from the secretarial agency stopped and a two-page fax from my solicitor, also in Melbourne, followed on. While I stood gaping in surprise the phone rang again. The fax from my solicitor ended and the final three pages from the secretarial agency rolled out of the machine — all in one continuous strip: three pages from one address, two pages from a second, totally unrelated address, another three pages from the first address.

And so we arrive at the question: are your faxes also being lost or intercepted? Who knows? What we do know is that the technology exists to divert calls from one phone (or fax) to another and what we must now ask is — how is that technology being used?

Because I had complained about short-duration calls (lasting only a few seconds) many times over many years, Telstra wrote to the Regulator back on 11^th November 1994, stating that they would address these short-duration calls as part of their defence of my claims. Of course this didn’t happen and the short-duration call issue remains unresolved. Another can of worms is opened in regard to short-duration calls by a Telstra document (FOI number A03610) which states that Telstra believed that some of these calls were being diverted. Let me assure you now, I certainly did not have a call diverter on any of my lines back in 1994, not even to divert calls to Telstra’s message bank — I have my own answering machine. So, if these calls were being diverted, where were they being diverted to? Who arranged for them to be diverted? And why were they being diverted? Again, I don’t have the answers.

I do know though that I am not the only Telstra customer suffering from this ‘phantom diverter’ problem. The members of COT have provided the Victoria Police and Telstra with the name of another Telstra customer who contacted our group some time ago. It has been proved, and Telstra has acknowledged, that some of this customer’s business calls were being diverted to her competitor. Again the question must be asked: how many other customers suffer from unrecognised interference with their phone calls and faxes? Why haven’t the Telecommunications Industry Ombudsman or the Federal Police investigated any of these issues? How long is the Minister for Communications going to continue to ignore these issues? Telstra’s enormous profits continue to grow and Telstra shareholders continue to reap the benefit, which is a good thing — unless, of course, these profits come from faulty billing procedures and ‘ripped off’ customers.

Telstra later sent another disconnection notice for my office fax line, the one that was disconnected some time previously. How they planned to disconnect an already disconnected line is quite a puzzle but even more of a puzzle — the last account for this disconnected line includes a charge for $60 rental to take the account up to June 1999!

After meeting with me on 14^th January 1998, Telstra’s representatives recorded the meeting in the form of ‘file notes’. I received a copy of these notes from the TIO’s office in 2002 and, surprise, surprise, found, attached to the notes, a copy of a letter from Telstra to the TIO on 4^th February 1998, acknowledging that it seemed some of the 1800 billing faults I had raised in my claim had continued, even after my arbitration. When he received this admission, why didn’t the TIO immediately instigate an inquiry into why the arbitration hadn’t fixed the problem?

Other documents from the TIO’s office confirm that he had written to Mr Hawker, my local MP, claiming that all the billing faults had been investigated during my arbitration, even though the project manager and the technical unit had told him the billing faults had not been investigated because of the lack of time. Why has the TIO’s office continued to misled so many people?

By the time 2000 was coming to a close I was even more despairing. Nothing much seemed to have changed. Although the phone problems had reduced somewhat once the new optical fibre was installed in October 1998, no-one had come to my premises to investigate the wiring, even though I had complained about the poor workmanship during my arbitration and Telstra still refused to reconnect my phone lines. Once the new flow of FOI documents began to come through from the Regulator in 2001 however I began to find proof that the members of COT had really been right all along with regard to the billing faults in Telstra’s network. Even their own Board were now agreeing that the rural network was in need of repair. So what had my arbitration been about? Why had Telstra spent so much time ducking and weaving and telling lies under oath when the Board was ready to admit the problems I had raised were serious and the system needed upgrading?

My life was still ‘on hold’. I had poured what little was left from my settlement back into my business, putting in new cabins and completing urgent maintenance, but it seemed that the TIO had always known that the billing faults had not been addressed or fixed by the arbitration. How could my telephone-dependant business be expected to survive with a failing telephone system still in place?

Yet another electrifying document arrived during 2001. It seems that Telstra had written to the TIO on 11^th January 1994 noting that details of the arbitration would only be released “… after consultation with the TIO.” This meant that the TIO, who had already allowed the rules of my arbitration to be changed without my knowledge or consent, then misled me into signing the arbitration agreement without telling me that every single discovery document would be vetted by the TIO and would only be released to the claimant if the TIO and Telstra agreed to that release. How could the TIO represent his office as independent?

Early in 2004, I prepared the following list of some of the events that have occurred during this saga and forwarded it to the Treasurer, the Board of the TIO’s office and my local MP.

At one point, the Senate began to investigate five of the COT claimants (from an original list of twenty-one), with the remaining sixteen to have their matters looked into at a later date. I have since been given copies of two Hansard reports in relation to this Senate enquiry. Unfortunately I am not allowed to reveal the exact contents of these reports (under threat of a jail term) but I can say that at least one Senator believed that, if the five claimants on the first list were to receive compensation, and the remaining sixteen did not receive any compensation, this would be entirely unfair. As it happens, the five did receive large compensation payouts as a result of the enquiry but the other sixteen have not received a cent.

During the time that the COT arbitrations were underway, the Australian Federal Police produced a report on some aspects of their investigation into the COT member’s claims. This report has been buried in government archives – not to be made public for thirty years. If the Government and the Federal Police had nothing to hide, why bury the report?

And still the arbitrator’s comments about serious problems with the credibility of the arbitration process have not been addressed. Let me remind you, on the very day that the arbitrator was writing his letter to explain to the TIO that there were serious problems with the arbitration process, the TIO was busy sending out a media release announcing the successful conclusion of the “… first COT Case arbitration”. According to this official release, the TIO noted that: “… the findings of the Resource Unit, the specialist technical advisers to the Arbitrator, indicated that the claimant had suffered considerable technical difficulties during the period in question. It was found that faults did exist which caused the service to fall below a reasonable level, and that apart from some customer premises equipment…, most of the problems were in the Inter Exchange Network.” And was there ever an announcement to the public regarding the arbitrator’s assessment that the process that arrived at this conclusion was faulty? No, of course not. And did I ever get the opportunity to let the public know that the comment about ‘customer premises equipment’ – probably the infamous TF200 beer-in-the-phone report – had been based on a manufactured and totally incorrect report? No, of course not. And did this announcement make any mention of the fact that, regardless of the findings, the faults continued to plague my business? No, of course not!

In the Portland Observer, on 8^th November 2002, a journalist reported on telephone problems being experienced by the new owners of the Cape Bridgewater Holiday Camp (who took over at the end of 2001) – the same problems I had been complaining about for so many years. On 11^th November a technician visited the camp, removed a telephone alarm bell and checked the wiring. He confirmed that the old wiring, together with the alarm bell, had probably been causing the faults. Since then, the new owners report that their incoming call rate has almost doubled.

GLOSSARY

Arbitration Legal hearing to settle a civil dispute

ARK A type of Telstra telephone exchange, designed in the 1970s, still in use in a number of areas up to the time of the COT claims (see also RAX)

Austel The Australian Telecommunications Regulator (the ‘umbrella’ organisation)

BCI Bell Canada International Inc, technical telecommunications specialists from Ottawa, Canada

CAN Customer Access Network (the line from a customer’s telephone to the nearest connection to their local exchange).

Casualties of Telecom see ‘COT’

Casualties of Telstra see ‘COT’

CCAS Telstra’s ‘Call Charge Analysis System’ used for testing purposes

CEO Chief Executive Officer

Commercial

Assessment Binding agreement, decided without legal intervention

Commonwealth

Ombudsman The Commonwealth Ombudsman is responsible for investigating complaints about Commonwealth Government departments and authorities

Consequential Losses Losses which follow as a result of a particular action or situation (eg, loss of income or profit resulting from a faulty phone service which means that customers can’t reach a business and so take their custom elsewhere as a result)

COT Casualties of Telstra (formerly Casualties of Telecom); a group of small-business people who banded together because all their businesses suffered from major telephone problems which they had not been able to have corrected by Telstra

COT four The inaugural members of the COT group: Ann Garms, Alan Smith, Graham Schorer and Maureen Gillam

Discovery Documents Legal term indicating documents relating to compulsory disclosure of facts (often ordered by a court)

Elmi Telstra monitoring equipment used to check the phone lines from the local exchange to the customer’s premises

Erlings Telecommunications measurement system used to evaluate the number of calls a specific exchange can handle at any one time

FHCA Ferrier Hodgson Corporate Advisory (accounting and liquidation firm)

FTAP Fast Track Arbitration Procedure — the second process set up in an attempt to settle the COT claims

FTSP Fast Track Settlement Process, a specially designed, non-legalistic commercial assessment process, specifically designed for the original four members of COT

FOI Australia’s Freedom of Information Act which, for a small fee, allows any citizen to request copies of documents pertaining to themselves or their business, from any Government department or instrumentality

Hansard The unofficial name given to the daily printed reports of Australian parliamentary debates. This is a verbatim transcription of proceedings. Although members of parliament are permitted to improve the grammar or clarity of what they have said, they are generally not permitted to change the content

Litigation A legal hearing

MP Member of Parliament

MUX Telephone equipment at a local exchange

Natural Justice A legal philosophy which is instinctively known to be right and fair

NCA National Crime Authority

NEAT testing Ericson’s evaluation test for accuracy in the transmission between the network and the exchange (RCM). While this equipment is connected to the line no other testing can take place.

Procedural documents Documents used in a legal process

Parameters Framework

PTARS Telephone testing system which is installed in a local exchange to count the number of calls on a designated line

R00 faults When the phone rings once or twice and then stops before it can be answered

RAX A type of Telstra telephone exchange, designed in the 1940s / 1950s, specifically for low-call-rate areas only (see also ARK)

RCM Modern unmanned local telephone exchange mainly used in rural areas

RVA Recorded Voice Announcement, e.g. “This number is no longer connected”

STD Subscriber Trunk Dialling: timed calls, charged according to the distance between the connected telephones

Telecom Australia’s monopoly, Government telecommunications company (later became Telstra and was partially privatised in 1997)

Telecommunications

Industry Ombudsman see TIO

Telstra Australia’s monopoly, Government telecommunications company (previously called Telecom; partially privatised in 1997)

TIO The Telecommunications Industry Ombudsman’s office is an industry funded ‘watch dog’ operation that resolves complaints made against telecommunications carriers and service providers. It was set up in 1993. The TIO has 650 member organisations and 13 investigation officers who deal with an average 1200 complaints a week.

WRIT A written document issued to an official directing him/her to act (or abstain from acting) in a certain way

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