Draft Reporting January 2019

On 24 January 1994, Telstra’s managing director of finance and administration wrote to AUSTEL’s acting chairman concerning the four COT cases and noting:

“I understand that you have now advised Mr Black [Telstra] that Austel will not be releasing information obtained from Telecom to the four COT claimants but will in fact be referring them to Telecom to make their information requests direct.”

How can the Australian Government continue to state that the COT arbitrations were administered under the rule of law when it is apparent, that the defendants were able to dictate to the government communications regulator (AUSTEL) what they could, or couldn’t, release to the four COT claimants? NO defendant in any litigation process should have the power to dictate what can be released to the opposing side.

AUSTEL’s COT Covert Findings

AUSTEL’s March 1994 Golden Messenger report (see 20111025143553046 and 20130627133948062) proves that AUSTEL’s investigation into Graham’s complaints concluded Telstra knowingly misled and deceived him over the whole period of his claim. However, even though their investigation was official, AUSTEL concealed their findings from the relevant minister (the Hon Michael Lee MP) and Dr Hughes throughout the whole of Graham’s arbitration. Documents ( 20111025143553046 and 20130627133948062) are soon to be released in full on our Scrooge download files unmasked.

In AUSTEL’s further draft findings on Golden Messenger, page 14:

“Telecom have maintained the position that network service was within acceptable standards despite having considerable information, obtained from internal investigations, that major problems did exist with the network and that these problems did impact on the level of service provided to the customer.”

In AUSTEL’s further draft findings on Golden Messenger, page 23:

“Telecom Minute of 30/3/88 states that advice from Legal and Policy Headquarters indicate that Golden Messenger appeared to have a case against us…and…the Australian Government Solicitor had advised Telecom that Golden Messenger is likely to be successful in establishing that Telecom engaged in misleading and deceptive conduct contrary to the Trade Practice Act and that consequence of lost calls or calls not getting through was likely to lead to an immediate loss of business in relation to that call and potential loss of future business from the customer.”

Unconscionable and Misleading Conduct: How the Trade Practices Act is used and the Duty to Advise

Section 52 of the Trade Practices Act 1974

Exhibits (Open Letter Files 20111025143553046 and 20130627133948062) were not released to Graham until October 2008, 14 years too late to be used in his arbitration or during the 1997/1999 Senate estimates investigation into why relevant documents (which AUSTEL used to arrive at their findings) were withheld from Graham. If AUSTEL had provided their adverse findings against Telstra to Graham and the Senate estimates committee, it would be expected the committee would have immediately ensured Telstra didn’t pressure Graham into accepting compensation of only 33 per cent of his arbitration claim. That 33 per cent did NOT include the thousands upon thousands of dollars Graham had wasted on legal fees to prove something AUSTEL had already proved.

In May 1995, during the designated 10-day appeal period after Scrooge handed down his findings, I asked Fagin to please explain what he knew about the 11 January 1994 letter, from Telstra’s arbitration liaison officer to him, which states:

“It was agreed at our meeting between [Telstra] and the [Chairman] of AUSTEL on 7 January 1994 that:

“Information obtained from Telecom, in the course of AUSTEL’s regulatory functions, and relevant to any parties involved in a formal arbitration process with Telecom under the control of the Telecommunication Industry Ombudsman (TIO) will only be released after consultation with the TIO and Telecom.” 

Further confirmation of a secret deal between Telstra, Warwick Smith and AUSTEL is in another letter, also dated 11 January 1994, but this time from Telstra to AUSTEL’s acting chairman:

“To this end I wish to confirm the agreement reached between Telstra in a meeting with you and the [Chairman of AUSTEL] today that:

“Information obtained from Telecom, in the course of AUSTEL’s regulatory functions, and relevant to any parties involved in a formal arbitration process with Telecom under the control of the Telecommunication Industry Ombudsman (TIO) will only be released after consultation with the TIO and Telecom.”

The above letters of 11 and 24 January 199D4 point to the concealed Graham Schorer and the Alan Smith covert AUSTEL reports, which, in both cases, found there was no need for an arbitration process as the government regulator had already found Telstra liable. Why then were Graham and I forced out of our already operating commercial assessment process that was facilitated by AUSTEL in order for the assessor to value our claims?

Should the arbitrator have notified the COT Cases before they accepted him as the arbitrator that in some legal circles it might be concluded he had a conflict of interest in the Telstra matters he was about to arbitrate on (see justicecommand.com?)

A letter from Michael Shand barrister at Owen Dixon Chambers (Melbourne) to Landers & Rogers for the Attention of Mr Gordon Hughes or Mr Michael Champion’s secretary dated 15 June 1990 (see –justicecommand.com / G.S. Conflict of Interest File 4 to 5) confirms Mr Gordon Hughes and a number of lawyers from Landers & Rogers were heavily involved in Graham Schorer’s Telstra Federal court action against Telstra in 1990 to 1993. This letter from Mr Michael Shand, confirms that Mr Gordon Hughes was one of the principal lawyers involved in Mr Schorer’s Telstra Federal Court action prior to accepting his role as the COT cases arbitrator in January 1994.

Why did Telstra ignore Dr Hughes’ conflict of interest associated with Graham’s previous Telstra-related Federal Court action addressing the same telecommunication issues less than four years later? Did they allow Dr Hughes to become the COT arbitrator aware that just four years previous damning evidence against Telstra had been withheld from Mr Schorer by his legal in which Dr Hughes was the Principal advisor and therefore he or his arbitration unit might be called upon during the COT arbitrations to withhold similar damning documents from being assessed during the COT arbitrations.

The fact that Dr Hughes’ arbitration resource unit has admitted withholding relevant Telstra related arbitration documents from being investigated during my arbitration (see Open letter File No/45-H and Open letter File No/46-F to 46-K) suggests there is more to Telstra allowing Dr Hughes to become the COT arbitrator than meets the eye.

This internal Telstra fax (see following link > GS 448-A) dated 2 November 1990 was a fax from Telstra’s Corporate Solicitors Office to Telstra’s then recognised chief technical engineer, regarding Telecom v Golden Messenger Federal Court Legal Proceedings, which notes, among other items:

(3)  Telecom will also need to inspect any documents lodged by Golden Messenger as part of its (GM’S) discovery obligations.

(4)   Telecom needs to examine those documents pertaining to the test carried out on North Melb Exchange to determine if any of those documents have been generated as a result of an “interception”. If so, then Telecom will be precluded from disclosing them under the discovery process. I intend to ask (name deleted) of network investigations to undertake this task.

(5)   The Australian Government Solicitor, on behalf of Telecom, has written to the solicitors acting for Golden Messenger seeking their undertaking not to disclose to their client or others the contents of the report on the North Melb Exchange. To date, there has been no response.    

A further internal Telstra minute dated 7 November 1990 that Telstra’s, Manager, Business Network Planning, sent Telstra’s Executive General Manager, Telecom Business Services (FOI Folio 001801), noting that:

“It would appear that any concerns over the disclosure of the adverse report on the North Melbourne Exchange can now be set to rest as it will not be released until point (5) has been complied with” (see > GS 43)

On 21 November 2012 Graham Schorer  produced a letter of understanding that included:

“During the period that I retained Landers & Rogers, at no stage was I informed by Gordon Hughes or any other member of Landers & Rogers staff, that Telecom or the Australian Government Solicitor contacted them with information regarding the North Melbourne exchange.

Furthermore, had I known that Gordon Hughes had concealed knowledge of such an important document from me, I would not have accepted his appointment as the arbitrator in my arbitration process”  (See > GS 565).

This ‘Australian Government Solicitor’  letter is important because, when the arbitrator was appointed as the official arbitrator to the COT arbitrations, he did not advise Graham Schorer of this AGS letter or the fact that documents were concealed from Graham during his Federal Court action by his own legal firm to which Dr Hughes was a partner.

Worse, if that is at all possible concerning this conflict of interest issue is, that the person who received the 2 November 1990 letter link > GS 448-A, and then wrote his own interpretation of that same matter (see GS 43), was also named by a Telstra whistleblower, Lindsay White, as the person who had told him (see pages 36 and 38 of Senate – Parliament of Australia), that the first five COT Cases, including Graham Schorer and Alan Smith, ‘had to be stopped at all cost’ from proving their 1994 arbitration claims.  It is therefore interesting to find that, four years earlier, in November 1990, this same person was already aware that the ‘adverse report on the North Melbourne Exchange’ had been concealed from Mr Schorer during a Federal Court action against Telstra.

So, when Mr Hughes (now Dr Hughes) was first asked to arbitrate on the COT arbitrations of 1994, shouldn’t he have immediately:

  1. Declared his conflict of interest because of his involvement in Graham’s previous Federal Court action between 1990 and 1993, and then;
  2. Advised the government and the Telecommunications Industry Ombudsman (the official administrator of the forthcoming arbitrations) that he was already aware that Telstra had threatened his office, back when he was assisting Graham in that Telstra-related Federal Court action, which was connected to exactly the same Telstra technical issues he was now being asked to arbitrate on.

These two documents  > GS 448-A) and  GS 43 are directly related to the adverse findings of Telstra’s own investigations into the North Melbourne Exchange servicing Graham’s Golden Messenger courier business. Had Mr Schorer seen this AGS letter, concerning these adverse findings, he would hardly have accepted (two hundred thousand dollars) paid by Telstra when his official claim was for (two million dollars). The acceptance of this two hundred thousand dollars included exonerating Telstra from all liability. No sound-minded person, sitting on evidence such as the Australian Government Solicitors’ letter saying Telstra was grossly negligent under Section 52 of the Trade Practices Act and recommending settlement with Mr Schorer, would have accepted only 10 per cent of his claim.

It is clear from a letter, dated 29 March 1993, from Telstra’s lawyers to two of Telstra’s management staff dealing with Graham’s Federal Court action that it was apparent Graham Schorer’s company “considerably underestimated its claim for damages”. Not only did Telstra conceal the aforementioned Australian Government Solicitors’ letter from him, during his Federal Court action, but Telstra also concealed this 29 March 1993 letter in April 1993, when Graham accepted only 10 per cent of his “considerably underestimated…claim for damages”. (See GS Evidence 449-A)

Telstra withholding their knowledge from Graham regarding his considerably underestimated claim, and Dr Hughes’ involvement in Graham’s previous Federal Court action (see justicecommand.com/Misleading and Deceptive Conduct), are why most legal processes conducted in democratic countries (such as Australia professes to be) do not allow the types of conflict of interest that took place during the COT arbitrations. Why were these conflicts of interest allowed to fester during the COT arbitrations?