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Thursday, 11 March 1999
Page: 2716

Senator ALSTON (Communications, Information Technology and the Arts) (11:02 AM) —Everyone in this chamber who has spoken on this matter is in heated agreement that it is a very sorry episode, and I think it does constitute a dark stain on Telstra's corporate image. Senator Carr reminded me of what we set out to achieve back in 1993, and I acknowledge that Senator Boswell has been the prime mover in ensuring that this matter remains under proper scrutiny. We both took the view that this was to be a fast-track procedure. If, by that, we fondly thought it would all be disposed of within three months, then clearly we have been sadly disappointed.

It also does seem to be very clear, given the grotesque imbalance of resources between the contending parties, that Telstra has taken a strategic decision that it will deter future litigants by making it abundantly plain that no-one could ever expect to reach a quick or cheap resolution of any dispute, certainly where matters are complex, and that money is effectively no object. Spending $24 million on legal expenses is simply impossible to comprehend for most people.

I have had a brief opportunity to look at what Mr Wynack has had to say, and there are a number of matters that do give grounds for serious concern. He does take very strong issue with attempts on the part of Telstra to suggest that he condoned the process of putting documents to Telstra employees in a form other than as agreed upon at meetings of the parties. That, in itself, raises concerns about Telstra's good faith on the issue.

Whilst I think we all acknowledge that we are neither capable nor competent to make judgments about the ultimate merits of the matter, we are in a position to carefully consider the procedural fairness elements of the process, and Mr Wynack draws our attention to a number of matters that are of very serious concern. The matter in particular that I am concerned about, and the matter which I will be writing to Telstra about, is in relation to a network exchange document. I have not yet had the opportunity to go fully through all of the detail—I am sure we all understand what sort of a task that is; you do not do it while the parliament is sitting because you need a period of hours to really get your mind around the minutiae—but, as I understand it, the basis of the cause of action on at least the part of Garms relates to whether the Fortitude Valley exchange was subject to any significant upgrading. Telstra's consistent position has been that it was not—that there may have been overall improvements being made to the network around Australia but there was nothing special about this exchange.

Again it would seem that a document has subsequently come to light—by that, I mean subsequent to the conclusion of the arbitration hearings but not subsequent to any appeal process being exhausted—that does concede that there was a significant upgrade. If that is a document vital to the original cause of action, then it does seem to warrant very careful consideration being given as to whether it would justify a reopening of the arbitration or whether it ought to be a matter to be considered by an appeal court.

I say those matters only by way of preliminary impression, but I will be taking the opportunity to go through this matter in some detail and at least attempt to make a preliminary judgment on whether that is the case. If it is the case, then I will be saying that to Telstra and indicating that I do not think it is appropriate that the matters be finally concluded until there has been an opportunity for the lawyers to consider whether that is likely to be a matter that would justify a reopening. Certainly my recollection is that where there are matters and circumstance that come to light after a case which would be likely to fundamentally alter the basis on which a judgment is given, then you are entitled to reopen the matter. So in this instance that is one particular matter that I will be giving careful thought to.

I am concerned about the tone of Mr Wynack's report. He seems to end up where a lot of people end up when they have had a look at these things. They have an acute sense of frustration about the process because, as we all know, it is very easy to exercise your legal rights to ensure that matters are exhaustively examined, but it just happens in the process that you will string matters out to a point where the other side simply finds it impossible to keep up. I know from my own experience in practice some years ago that that is not an uncommon technique. I would be very surprised if it is not still employed today.

The idea of Telstra releasing mountains of documentation, the vast bulk of which is probably not strictly relevant to the immediate cause of action but which is designed to overwhelm and basically exhaust the patience and the pockets of litigants, is what I think we would regard in the Public Service arena as being a classic snow job. Again it does concern me that Telstra does appear to have adopted every available legal stratagem designed to have the parties collapse under a mountain of documents and at the same time it takes every opportunity to withhold other documents for a whole range of reasons that can always be advanced. They then have to be tested and judgment has to be passed on them. In the process you have managed to string out proceedings inordinately.

I simply say that that is a practice that I have encountered in the private sector. I am not competent to pass judgment on whether it has occurred here, but the end result is one with which I am quite familiar. In those circumstances, I want to be satisfied that we have done as much as we can do before the matter is finally put to rest. I know that a number of the CoT cases themselves have reached the point of virtual obsession where this dominates their lives—

Senator Schacht —Through no fault of their own.

Senator ALSTON —I am again not competent to judge that. I do not know—

Senator Carr —If they hadn't, they would have collapsed a long time ago.

Senator ALSTON —All I am saying is that it may well be that you will never get any satisfied customers out of this process. I know it occurs in personal injuries cases, that by the time you have awarded mammoth amounts people are so overwhelmed by the process they have been through they can barely think straight. All I am saying is that we should not think that somehow there is an easy way of cutting through this that will satisfy the CoT cases because we may have passed the point where they were going to be capable of satisfaction in this life. Having said all that, I do think we have an obligation to do our best collectively. I think there is a will on all sides of the chamber to make sure that at least we have done what we can do. I will be pursuing the matter further.

Senator Schacht —Direct Telstra to fix it and you can fix it very quickly.

Senator ALSTON —Quick fixes are not easily discovered.

Question resolved in the affirmative.