Some readers have already seen the draft chapter of a book What’s Missing set out below. The book deals with failures of courtesy in government and business. A lot of those failures come from organisations obliging their employees to act like robots and try to get the customer to do the same. That is insulting to the customer and demeaning to the employee. Both are offended – and left worse off.
How is that we stand for what some call insult to the brain?
As it happens, I got two definitive examples by email in short order this morning. They are set out below. ASIC is already in the text. Below is its response for a request to note a change of address in my corporate super trustee.
Momentum supplies my electricity at my current address. On 8 September – more than a week ago – they acknowledged my advising them that I was moving. They rang this morning. I was ferrying stuff between addresses and in the hallway of the new address when they rang. I took the call. I advised them that another supplier was now retained for the new premises and that they should close my account on Monday 26 September. I then had to endure all those protocols about the message being recorded and answering the same questions being repeated. Then I was asked to listen again and say yes. We got disconnected. When we got back on and I was asked to start the process again, I lost my temper. Moving is stressful. Especially when you are 76 and being treated for cancer and on medication for incurable emphysema. And you are stopped and interrogated mid-load by a robot.
I then got the claptrap below from Momentum.
For ASIC, the behaviour in the existing text is appalling. Today’s nonsense is of the same order. How can that government agency attract good people when it shows this kind of face to the world?
Momentum normally signs off ‘We are hereto help.’ I have specifically instructed them to close the account. Their written response is: ‘We were unable to close your account today, as you did not accept the recording’. That is not true. What they mean is that their robot is unsatisfied. They have therefore engaged in misleading and deceptive conduct in trade or commerce. They are also in breach of their implied obligation to make the contract work. You will see from the Telstra example below how a claim for exemplary damages could be mounted. This could be the vehicle to see whether we are ready to accept the Roman wrong of insult or outrage.
How did we all let it come to this?
Please do not reply to this email as it is an unattended mailbox. Please ask us a question by contacting us at www.asic.gov.au/question
Enquiry Number: 1-51000056598
Dear Geoffrey Gibson
PHAEDO PTY. LTD.
A.C.N. 120 213 229
Thanks for your enquiry about updating your address.
We can see that you don’t currently have an account to log in to. You can register for online access on our website by creating a username and a password. This lets you lodge documents and update your details online, as well as receive correspondence via email. You must have your company’s ACN and your corporate key.
Your username, password and security answer are case sensitive. Once created, you cannot change your username.
For more information on how to create an account and log in,
To update your company addresses, you need to submit a Change to company details online.
You must let us know of any changes to your company details within 28 days. Otherwise, you will be charged late fees.
For more information on updating your addresses, visit our website.
Customer Service Officer
Australian Securities & Investments Commission
Ph: 1300 300 630
MOMENTUM ENERGY LETTER
Thank you for your time on the phone today.
We were unable to close your account today, as you did not accept the recording.
To finalise the account could you please either call back, or complete the move out template which I have emailed.
The account will remain open until we hear from you.
EXTRACT FROM WHAT’S MISSING?
Insult to the Brain
Some Sad Tales from inside the War Zone
The Rogues’ Gallery: Qantas, NAB, ASIC, Avis, Fines Victoria, Telstra, Bendigo Bank, Foxtel, Centrelink
Before looking at the legal and social underpinning of our governmental and corporate malaise, and the decline in our communal life, here are some case studies. They are set out in no particular order. Anyone who has chosen to read this book is likely to have bled from similar wounds. Sometimes it helps if you see the experience of others. No, you have not come from Mars; nor have you been singled out for punishment by a jealous God. We may all be paranoid, but that does not mean that there are not bad agents out there just waiting to gobble us up.
When I was engaged in trying to bring up two daughters, which was much harder than I had envisioned, I was worried that I had not been taught what to do, and that I could not find a reliable source of instruction. It was a great relief to find an aged text-book from Scandinavia, doubtless one that would have been anathema to the cognoscenti, which set out a table at the end of the behaviours you might expect from your children at various phases. Like when they are teething; or nearing the mystery dubbed puberty. Well, now – this problem is about par for the course, and people can and do survive, and even lead an ordinary life. Eureka!
The last time I tried to get somewhere with Qantas on its Frequent Flyer program [about 2000], I had to retain my travel agent to act for me, not to enforce what we saw were my rights, but to get a modicum of sense and courtesy out of our national airline. I managed to negotiate a return trip to India. Part of the price was that I had to return [from Mumbai] by Singapore, Brisbane and Sydney. I would have happily paid the full fare to avoid the milk run. It was discomforting to fight off the crew seeking to get to the Exit seats, or to compare the service provided by ‘our own airline’ with the charm and courtesy – no, more, the dignity – shown on the Indian airlines in India.
That is as it was written in 2004, or thereabouts. What kind of business goes so far out of its way to antagonise its best supporters and drive them away?
It was about twenty years – a generation, say – before I got the courage to fly Qantas again. I could not bear the thought of the frightened rudeness of a distraught flak-catcher on the other end of the phone.
Qantas raises another issue – the fortunes handed over to people who are capable of bringing misery to the staff and customers of the company that they run. According to one press report, the CEO Alan Joyce has earned almost $100 million as the man in charge of Qantas since 2008. The same report said that Labor Senator Tony Sheldon, a former TWU boss, said that Joyce has ‘trashed a century old Australian institution’ and treated customers and staff with contempt.
Joyce is a textbook example of everything wrong with modern-day corporate governance. He has taken vital national infrastructure, illegally outsourced jobs and cut the pay and conditions of those who remain, all to improve Qantas’s margins and boost his own pay at the expense of the travelling public. Joyce’s complete abrogation of responsibility is matched only by the Qantas board, which inexplicably continues to back him.
Well, the senator has a political position, but his remarks leave two questions. Is anyone in Australia happy with what Qantas does? And if Mr Joyce got paid $100 million dollars in his time there, did any of the baggage handlers he fired get paid one hundredth of that amount?
I have never met Mr Joyce of Qantas, but his image calls to mind remarks by a distinguished English historian about two of the leading figures in the French Revolution. The Reverend J M Thompson said that the hero of two worlds, Lafayette, was too priggish to work with a man of no moral reputation like Mirabeau, and ‘too conceited to abandon that glorious isolation in which, as Mirabeau told him, he lived ‘entirely surrounded by himself.’’
National Australia Bank
The following letters show why I left a bank that I and my mum and dad had banked with from time immemorial.
23 March 2012
Mr Cameron Clyne
Chief Executive Officer
National Australia Bank
Reply Paid 2870
MELBOURNE, VIC. 8060
Dear Mr Clyne
SALES TEAM D
You don’t know me. Neither do any of your employees. Since you have been my banker for 60 years, I think that that is very sad. Don’t you think that is very sad, Mr Clyne?
When I bought my present house, I was subjected to treatment by some of your operatives that in part caused me to write the attached paper on ‘The Decline of Courtesy and the Fall of Dignity.’ You will see that your bank has the misfortune there to be compared to Telstra and Qantas. That is not good company to be in, Mr Clyne. The part that really got me was the threat – that is exactly what it was – to pull the pin – that was the phrase – on a bank cheque. Your staff could give a customer a heart attack threatening to do that to them on the day that they are settling on a house purchase. A bank threatening to renege on its own paper? It is hard to imagine a better example of how banks have lost their way – how once respectable business houses have now become unrespectable counting houses.
Being minded to move home, I thought I should confirm my leeway with your bank before making an offer. I drew Sales Team D in the lottery. I said I was happy to go to your Kyneton Branch and talk face to face, but, no, Sales Team D told me they were on top of my case.
Your staff can fill you in on the sad results, Mr Clyne. I had to prove my identity – at least twice. Sad after 60 years, is it not? The property I am looking at is worth under half of a city property that I can offer for security. The increase to the existing facility is modest. For any bank that knew me as its customer, and wanted to look after me, the proposed transaction would hardly raise a query. Not so with Sales Team D, Mr Clyne. I was required to produce tax returns, and then told I would have to surrender one credit card and submit to a reduction on the remainder. I began to feel for the people of Greece. Now, Sales Team D wants to go beyond the tax returns, and I now have two accountants wondering just what has got into Sales Team D.
How would you or your fellow directors like it if they were treated like this by someone they have been doing business with for ten minutes, let alone 60 years? In the course of more than 40 years’ legal practice, I have held various statutory appointments, including running the Taxation Division of the AAT, later VCAT for 18 years. Some people – including Her Majesty the Queen in right of the State of Victoria – therefore felt able to take me at my word. But not Sales Team D. Do you know why, Mr Clyne? My bank does not know who I am.
Perhaps they are worried about my recent expenditure on credit cards. Let me assure you, Mr Clyne, so was I. Very worried and very annoyed. I bought a CLK Mercedes about six months ago at a very good price. I just needed to extend a borrowing facility by six thousand to get the $26,000. I got handballed around four operatives, having to prove my identity along the way. I got referred to various teams. Most asked my occupation. (Sales Team D the other day asked if I was still a member of a firm I left about ten years ago and which ceased to exist the other day.) I was told my case was difficult because the facility was secured. Then I was asked to produce tax returns to support a request to extend a secured facility by six thousand dollars. That is when I gave up, and used the credit card to buy the Mercedes.
I do not blame any of the few employees you have left. They are trained – programmed – to be automated and not to think. They also know that the market, which can never be wrong, values their contribution to the bank at about one hundredth of yours.
Do you know what I think, Mr Clyne? George Orwell was wrong. It is not big government that is tearing up the fabric of our community by Big Brother – it is Big Money, and Big Corporations. I think that you and your fellow directors should be ashamed of yourselves.
If it matters, I hold shares in the bank, and I am not a happy shareholder either.
3 April 2012
Mr Cameron Clyne
Chief Executive Officer
National Australia Bank
Reply Paid 2870
MELBOURNE, VIC, 8060.
Dear Mr Clyne,
SALES TEAM D
Well, they did it for you. Sales Team D – may we just call them STD for short? – stopped me from buying the new home that I wanted. It was not perfect – it was just ideal. Ideal for me, Mr Clyne. But, then, what is a mere home to someone like me to a great Australian banker?
How did STD manage to pull it off, you may ask, Mr Clyne? Quite simply really. They did not know me, and they did not know what they were doing. This all became sadly but inevitably apparent when a roaming STD cell-commandant opened his phone talk with me after my first letter to you with the gambit that my problem was that I had overstated my income. Really, Mr Clyne, your attack-dogs and flak-catchers would want to be on the highest level of dental insurance if they want to go around behaving like that. No wonder you forbid them to meet your customers in the flesh.
But I suppose that the ADs and FCs of STD kept you safe from my letter. You would prefer to stay like Achilles gleaming among his Myrmidons, except that you would not stay sulking in your tent – no, you would be glowing over all that lucre.
You and the people at STD are a real threat to business in this country, Mr Clyne. You should be helping the flow of capital. The big Australian banks are doing just the reverse.
And you should really stop those ads that tell the most dreadful lies. Lies like your people are free to make decisions, or that the big banks like competition. Nothing could be further from the truth, Mr Clyne. The people at STD know that they are forbidden to think, much less make decisions, and STD shut up shop completely, and have been in a surly sulk ever since I told them I was talking to another bank. (Although they did ring the other bank to inquire – without my consent – about what I was doing.) The major Australian banks are just a collusive cartel operating sheltered workshops that rely on the people of Australia to bail them out whenever they balls it up – and then they pass on their guilt and paranoia to those same people by refusing to lift a finger for their customers when they need a bank.
Those people do not hold your staff responsible for the shocking fall in the standards of our banks, Mr Clyne. They hold you and your like responsible. You do after all get paid about one hundred times as much as the folk of STD.
If you and your board step outside your cocoon of moolah, minders, and sycophants, you will not find one Australian – not one – that has a kind word for any of you. What all those people should do to the big banks is to take their business elsewhere. That is what I will do. You never know, Mr Clyne, I may meet a real person in the flesh, one who might know what they are doing, and who will even know who I am.
In accordance with procedures laid down, I got no response to either letter. I sold my shares in the bank. I concluded a post containing these letters with the following:
How did we let this happen? How did we come under the heel of people whom we would cross the street to avoid?
The performance of the corporate regulator may be apparent from the correspondence below. Although an actual person, a real human being, surfaced, I have not included her name in this transcription. The regulator which polices business sought, through a robot, to penalise me by a fine of above $300 for being late with a $55 filing fee.
A robot has sent my super fund a bill for S399 – a fee of $55 plus penalties. I have paid the $55. You should be ashamed of yourselves for letting a robot demand money with menaces.
I would be glad if a human being could acknowledge the change of address to that below.
I have your letter of 10 November.
In my letter of 20 October – see below – I advised of a change of address and I said that ASIC should be ashamed of itself for demanding money by menaces.
In your letter, you now say I need fill in a form for my change of address and you appear to contend that the penalties are still owing. At least you do not say the contrary.
The fee was not for any form of service. It is a fee – or tax. On my small super fund which will I hope keep me off a pension. Although I have paid more than enough in tax over fifty years.
Although your signature appears under the letter, it must surely have come from a robot.
What is the Commonwealth of Australia saying to a taxpayer who pays your wages?
Are you saying that although I have notified you of my change of address, that I must now jump the counter and do your filing for you? That I should volunteer my time as a civil servant?
Are you saying that a delay of two months and five days in paying a fee of $55 warrants the imposition of a penalty of more than five times that amount? During a time of national pandemic and emergency when no-one could rely on the post?
Do you agree that if a business that ASIC watches over sought to act in that predatory fashion, it would be the job of ASIC to run the mongrels out of town – Pronto, Tonto?
I have your letter of 13 December.
You refer to a number of legal issues, such as waiver. I do not know which laws you may have in mind. The discussion by the High Court in the Voyager Case was very long. In any event, this correspondence has lost whatever utility it may have had. I see that you now address the company at its new address so that that issue is closed also.
Happy new year.
As best as I can see or now recall, the corporate walloper at that stage threw in the towel.
I set out below a letter sent to my daughters from Scotland about Avis. Before that is the introduction on a post. After it comes a statement of Avis Values from their website that I sent with a formal letter of demand. The response from Uncle Sam was one of imperial silence.
The Road to Serfdom held some attraction for many university students in my time. It looked at what George Orwell called Big Brother and what Ken Kesey called the Combine. Hayek said that we were just heading for the status of serfs. But, with time, the book sounded too doctrinaire for people not given to dogma, and it was preached by people whose company we may not have enjoyed – Andrew Bolt territory.
The following note that I sent my daughters while travelling in Scotland – on a round the world trip – will show just how far down that road to serfdom we have travelled.
It was a good short flight on time from Cardiff to Glasgow. I got clobbered with 40 pounds for each bag which a very capable agent assured me had been covered, but I know how predatory these small airlines are.
I finally made my way to the Avis desk to pick up my car. I had corresponded with them about the booking – at some length. All I wanted was a good clear way for me to get on the A82 to the highlands. I was getting on with Ann like a house on fire – comparing accents and so on. She is finally about to hand over the keys, and then says, dead-pan: ‘Mr Gibson. I’m sorry but I cannot let you have this car. You have been banned’ – or words to that effect.
I don’t know that I have felt anything like this before. Among other things, I had just travelled around Wales for two days in an Avis car. There was no reason. Just a sign on the computer. I saw her pointing to it with colleagues. I suggested she call for a manager – but I instinctively felt that no one in a yellow jacket would override the computer. While waiting for the manager, I shopped around. Hertz said they had no car available. Thrifty said they answered to the same computer.
Finally, I got a very nice people at Europcar and their system did not disqualify me. They were very efficient and capable and their manager, a fine lady of Glasgow, felt empowered to authorise my hire. She was a genuinely decent lady; the young man on the desk, Roddy, plays loch in rugby. He was terrific. My first credit card bounced – probably because Avis had not taken off the Cardiff deposit. Thank God, the computer allowed the second. In the name of God, I had spent time the night before in Cardiff to make sure ample funds were available on each credit card.
Well, I have a very adequate VW Polo that has got me here in comfort, and I will restructure my trip to take the car back to Glasgow. That inconvenience is relatively slight. Could I have been banged up in a Glasgow boozer for days?
But I cannot even begin to tell you how unsettling this has been.
I think we are going to the dogs – as my old man used to say.
It is very unsettling.
I added the following on a post.
What Orwell and Kesey described was the sense of powerlessness of the victims of the State entities that they described. Orwell’s hero is crushed into total submission. Kesey’s hero is despatched to eternity as an act of kindness. One word for the result is ‘unmanned.’
That is how you feel when you deal with someone employed by a big corporation that rules its own like a very firm government. If you are into labels, try fascist. And it all gets so much worse when the whole corporation has handed over the keys to what might have been called its soul to a machine in the sky – a deus ex machina – called a computer. And no one – no one – is authorised to query, challenge much less override the computer. The hand-over of power – the surrender – is complete. And so is the victory of Big Brother and the Combine. And we are left unmanned.
But the powerlessness of Ann was only part of the story. Indeed, in at least one sense, Ann and I shared a powerlessness. One of the primary aims of a vicious ruler is to make the subjects complicit in the viciousness. That way, the minions get locked in. Just look at how Stalin, Mussolini, Hitler and Franco went about stitching up their underlings (and reflect on the obsession of Donald Trump with personal loyalty of the kind that Hitler extracted, even from previously decent officers of the army).
Ann is, I fear, becoming complicit. Possibly the most frightening part of this episode came when I was sitting down in something resembling shock, and Ann was standing and looking down at me, and then Ann – yes, that nice, kind Ann with the Glaswegian accent – gave me a look of suspicion. For a moment, I could have been looking at an East German guard on Checkpoint Charlie. ‘Are you sure there is nothing in your past with Avis, Geoffrey?’ Or words to that effect – words that Robespierre could have drooled over at the height of the Terror. Suspicion is a primary tool of trade of the terrorist. Robespierre said ‘Feel my fear’ and ‘Who among us is beyond suspicion?’ And Ann is being reduced to that level.
What the gods of the machine want to do with us is to strip us of our humanity. And we are all now becoming complicit by handing the keys to ourselves to our mobile phones. I was appalled in both Manhattan and Wales to see nearly everyone on the street looking at their phones. People at the Frick could not put them down. (What about a selfie with my old mate Rembers, Digger?) The plague has even reached us here in the Highlands. At Ballaculish, I ran into a very handsome couple from Vancouver who looked like they might be on a honeymoon – if people still do those things. Then I saw them in the bar – each immersed in his or her own phone.
In the name of God, what kind of world is this? This device does not just murder minds and manners – it annihilates any sense of grace altogether. All that bull about bringing people together from super brats like Zuckerberg is all just part of one grand lie.
The medical profession has astonished me with the care and professional attention with which it is treating a cancer that a few years ago would certainly have killed me. I have just experienced another instance of professional care and plain human kindness deep in the Highlands. What I must now do is to respond by fighting another form of cancer that does not terminate life but certainly terminates decency.
To return to Avis. They promised to lend me a car in return for my promise to pay them. That is a called a contract in our law – and the law of the US. I travelled and made arrangements in reliance on that contract. I am travelling around the world, and the visit to the Highlands was the principal reason for the whole trip. Then Avis said ‘We made that promise, but we reserve the right to renege on any basis at all – including the colour of your skin or the way you wear a head scarf.’ What do we care if you are degraded and humiliated in public and if the last visit to the land of your ancestors is ruined? Our only God is Mammon. You – poor fellow – just fall under the heading of collateral damage. Just look at the business model of our President’.
Then there is the problem of a cartel operating to interfere with contractual relations. At heart we are dealing with a wrong that our law does not distinctly recognise as one of outrage. But, as Sir Frederick Pollock pointed out many years ago, our law has long permitted juries to deal with the arrogance of the haughty by the measure of the damages that they, on behalf of their country, award to the victim. Putting to one side my personal circumstances, I find it hard to imagine a better case to test the limits of this wrong at law.
I do not know why Avis reneged. They could not or would not tell me. That inflames the wrong. These people are like Richard III – they murder while they smile. As the lady from Europe Car said, it may have been a parking ticket from ten years ago.
I have a recollection of hiring a car in Oxford about ten years ago for a fly-fishing lesson. I cannot recall the hirer, but I have a kind of recollection of correspondence that was (1) false (2) insulting and (3) extortionate – criminally so. If it was that kind of thing on the mind of the computer, Avis is adding infamy to criminality. Whatever incident the computer had in mind – it may just be wrong – it must look to be as mean and petty and spiteful as you could imagine. But it does not matter – whatever it was, it cannot justify this frightful breach of promise. We made our laws to shield the innocent, not the arrogant.
About forty years ago, Aunty (our ABC) made rude remarks about a very important Royal Commission team. These wronged lawyers then sued for libel. And in cold blood they entered judgment by default. When I moved to set aside the judgment, the late Neil McPhee, QC sought to hold on to the judgment by saying that we – the ABC – had no defence. I well remember the relish with which Neil looked at me across the bar table and said ‘The only possible defence is truth and if Mr Gibson does make that plea, this court room would not be big enough to hold the damages.’
I think it may be time to offer that option to Mr Avis and his imperative computer.
AVIS MISSION AND VALUES
‘We will ensure a stress-free car rental experience by providing superior services that cater to our customers’ individual needs…always conveying the ‘We Try Harder®’ spirit with knowledge, caring and a passion for excellence.’
We will honor all commitments to our customers, employees and shareholders.
We will conduct business with unwavering high standards of honesty, trust, professionalism and ethical behavior.
We will communicate openly and frequently, sharing what we know, when we know it.
Respect for the Individual
We will treat each person with whom we work with respect, professionalism and dignity.
We will communicate expectations to employees, and provide honest and timely feedback on performance.
We will embrace a diversity of ideas, cultures, ethnicities, and backgrounds to enhance our promise and value to customers.
We will provide career development opportunities for employees who show initiative, and performance results to help them individually manage their careers to maximize their potential.
We will place the interests of our customers first.
We will be dedicated to providing an individualized rental experience that assures customer satisfaction and earns the unwavering loyalty of our customers
We will ensure that the ‘We Try Harder®’ philosophy underlies everything we do and shines through in our service to customers.
There is a word for all that. Bullshit.
This happened at the start of autumn in 2022.
In rural Victoria, Vic Roads has an outstanding reputation for inanity. It is right up there with My Gov – which is Alpine. But Fines Victoria might trump them all. You have the impression that it may be one of those places that people wander into and are never seen again. Franz Kafka – eat your heart out.
As I write this, I think Fines Victoria still maintains that I owe it money. At least that is what the latest anonymous unsigned letter says. A fine was levied. I paid it. They paid that back to me. Now they seek to recover their payment. You do not have be a lawyer to see that whatever else they are doing, they are not seeking to recover a fine.
You will get an idea of the problem in dealing with a body like this from the following.
Dear People – on the off chance there are any left,
A robot has sent me a letter demanding payment of an amount of $389.20 without saying what for.
I am contemplating consulting the Police on whether the robot has committed the crime of demanding money with menaces. Inter-government suits could be in vogue.
Alternatively, I might bring an action for defamation for your publishing of me that I am a debtor.
I am certain I have paid my fines. When I discussed this on the phone with a very nice lady from New Zealand, it was quite clear that your computer had lost the plot and was out of control.
If a real human being writes politely to me – I am finished with discussions on the phone – and elects to specify a fine, I will deal with it.
If not, you should call the robots off or I will take action without further notice.
I have your letter of 8 November.
You refer to an ‘arrangement.’ What was it?
I set out below prior correspondence showing that the fine had been paid on time. It is like talking to a brick wall. I also attach part of my bank statement.
You are wasting my taxes. Your staff are not in control of the robots.
I have mislaid your response to my letter to you of 19 November.
It was I think anonymous and unsigned.
The author acknowledged that I had paid for the fine.
You now say that you paid it back to me by mistake. Did you notify me of your entry into my account, or does my government believe it is free to roam my bank accounts at its leisure?
However that may be, it is clear that you are not seeking recovery of a fine. I had paid it. Rather you appear to assert a right under the law of restitution to recover moneys that you say were paid by mistake. If the department could get that case off the ground in court, there are obvious defenses – to a claim that has no merit. One authority you might look at is Hansen v Marco Engineering, a decision of Justice Fullagar in 1948 VLR.
It is, to put it softly, disconcerting to find agents of government proceeding this way.
It makes you wonder how much money government and corporations rip off ordinary people by failures of thought and decency like those discussed here.
And I should mention just one thing about Vic Roads. When I misplace a credit card, I must notify about ten or so people I deal with of the change. With most people in business, it is quick and seamless. Not Vic Roads. They get it wrong every time. And then you get a barrage of robotic diatribes about what fate awaits you if you do not rectify their failing. And the robots don’t use the tune of High Noon.
After an appalling succession of monster acts by Telstra, I composed the following draft writ as part of my catharsis. I do not vouch for its forensic correctness, but it does represent my grievances – and not just against Telstra and its directors. It is so sad it is comical – and so very common.
Geoffrey Cousins, Russell Higgins, Chin Hu Lim, John Zeglis, John Mullen, Peter Hearl, Steven Vamos, Nora Scheinkestel, Margaret Seale, Catherine Livingstone, and Andrew Penn
- The corporate defendant, which is known as Telstra, is a trading corporation that sells phones and services for those buying and using such phones in Australia.
- The personal defendants are and were at all material times the directors of Telstra and as such, they were charged under the law with the obligation of managing the business of Telstra.
- In about January 2021, the plaintiff entered into a contract with Telstra by which Telstra sold and the plaintiff bought a phone and a package of services for him in his use of the phone for the consideration and upon the terms set out in a document prepared by Telstra for that purpose. (Telstra holds the original of the documentary part of the contract for account number 0154 252 215 that was billed monthly.)
- It was a term of the contract to be implied by the law that the phone would be fit for the purpose for which the plaintiff acquired it, and in order to enable the plaintiff to get the benefit of the purchase of the phone, Telstra would take all necessary steps to see that the services provided by it under the contract would be fit for the purpose of maintaining the phone in good working order.
- Further, in and since January 2021, Telstra represented and continues to represent to the people of Australia that the phones and related services it sells to people in Australia are fit for the purpose for which consumers, such as the plaintiff, acquire them. (The representations are express or implied from the terms of sustained advertising by Telstra before and since January 2021.)
- On about Tuesday 22 February 2022, Telstra closed the account of the plaintiff so that he could receive but he could not make calls on the phone.
- Telstra did not tell the plaintiff that it would close, or that it had closed, the account. Accordingly, Telstra did not give the plaintiff any reason for closing the account.
- On Thursday 24 February 2022, the plaintiff took the phone to the Telstra store at Altona Gate in Victoria to get it fixed so that he could make calls on the phone.
- The Telstra representative refused to look at the phone and said that the law provided that before Telstra could deal with the phone, the customer had to produce photo I/D (which the plaintiff did not have with him) before it could work on the phone.
- The plaintiff returned to that store later that day with photo I/D. After about twenty minutes’ investigation, the Telstra representative said that the account had been closed because a monthly instalment had not been paid. The plaintiff said that this would have been because a credit card had been cancelled (after it was scammed) and he complained that Telstra had not told him of the failure to pay or the termination of the account – or of the consequences of that failure.
- The plaintiff then paid the arrears – about $134 – by a credit card. The Telstra representative said he could not immediately reactivate the account and that the process might take about 24 hours, but that he had set the account up so that in future Telstra would debit the new credit card with each monthly instalment. The representative gave the plaintiff a printed receipt and said that if the plaintiff wished to speed up the reactivation of the phone, he should ring Telstra on 132200, say ‘Billing’ to the automated responder, and quote the receipt number. There followed a conversation about why the plaintiff at a Telstra store had to ring Telstra, and how long it might take for such a call to get through to a human agent.
- Telstra did not reactivate the account within 24 hours of the payment of arrears.
- On the afternoon of Friday 24 February, the plaintiff rang 132200 as the Telstra representative had suggested. That call was blocked in the same way that other calls had been blocked since Telstra had stopped the account.
- The plaintiff then got another phone number for Telstra from the Telstra website and rang on that same Friday afternoon. This call got through. After the usual computerised responses, the plaintiff was put on hold. Then the computer came back on the phone to say that that call centre was closed for the day and that the plaintiff might try again the next day. That was shortly after 4pm that day.
- On Sunday 27 February, the plaintiff travelled again to the Altona Gate Telstra store in order to resolve the issue of reactivation. He arrived shortly after 11 am.
- The store was shut. There was no sign of any notice of the business hours of the store.
- The Telstra website said that that store opened that Sunday at 11 am.
- That statement was false.
- The plaintiff relied on that statement in going to the store.
- When the plaintiff got home that Sunday, he rang Telstra again on 132200. He got through again and was again subjected to the usual computerised responses.
- Then the computer said that that call centre too was shut.
- On the morning of Monday 28 February, the plaintiff again called Telstra on 132200. After only about 10 minutes wait, he got through to a lady whom he had difficulty following and whose name he could not recognise. As best as he could follow that lady, she said that she had identified the payment of arrears – she did not require the receipt number – and that she had taken steps to reactivate the account, but that that process might take some time. She said that the plaintiff could ring in from time to time to see whether the phone was back on.
- The capacity to ring out was restored on that phone at some time later that day.
- In conducting itself as alleged above, Telstra breached each of the terms of the contact alleged above and made false each of the representations alleged above.
- By reason of the above, Telstra has in trade or commerce engaged in misleading and deceptive conduct, or conduct that is likely to mislead or deceive, contrary to the terms of the relevant state and federal legislation.
- The plaintiff has suffered damage by being subjected to harassment, insult, and nuisance caused by each such breaches and misrepresentations.
- Further, the breaches of contract and misrepresentations referred to above all arose from the failure of those charged with managing the business to manage it properly.
- The personal defendants as the directors of Telstra at all material times were responsible under the law for the management of its business.
- It follows that each personal defendant was involved in the breaches of the relevant statutes alleged above and is therefore personally liable to the plaintiff to pay damages to him for loss and damage suffered by the plaintiff as a result of the breaches of statute committed by Telstra as alleged.
- Further, the plaintiff contends that in committing the breaches of contract and misrepresentations referred to above, Telstra acted with a contumacious disregard for the rights and interests of the plaintiff and other Australian consumers, and abused its power and position in the market, to such an extent that its behaviour was unconscionable within the meaning of that term in the relevant legislation, and the plaintiff will ask the court to punish Telstra and its directors by awarding punitive or exemplary damages to the plaintiff.
- The matters of fact relied on by the plaintiff in seeking exemplary damages are as follows.
- Companies are created to make profits for their owners, the shareholders. The directors of a compony manage its business for that purpose.
- Shareholders in a public company listed on ASX make a profit by receiving dividends and gaining capital growth in the value of their shares arising from the conduct of the directors in managing the business of the company.
- The directors can delegate their powers, but not their responsibility, to manage the business of the company.
- In order to make profits in doing business in Australia, a trading corporation must establish and maintain good relations with its employees and customers.
- Telstra has bad relations with both employees and customers.
- Notwithstanding the above, Telstra is listed about number 11 in market capitalization on ASX.
- It has about 27,000 employees and an unknown number of people it engages on other terms.
- Telstra has about 44% of the market in mobile phones in Australia.
- In order to do business successfully in Australia, a company must employ staff who can relate to and win the trust of Australian consumers.
- Telstra does the reverse by putting foreign call centres between itself and its customers.
- The staff retained by Telstra at foreign call centres are not adequately trained to deal with customers, are difficult for ordinary Australians to understand, and commonly have to seek assistance in responding to questions.
- The staffing is such that callers are warned of and subjected to delays of, say, thirty minutes or more.
- During such delays, Telstra computers or robots drill callers with recorded messages about the length of the delay, which are false, and how and why callers should desist from calling Telstra, and with propaganda about Telstra.
- That conduct is insulting and demeaning to Australians dealing with Telstra.
- The overwhelming majority of customers of Telstra dislike having to call foreign call centres.
- Further, many Australians by reason of their medical condition or geographic location or course of business need ready and assured access to phone communication – which for them is an essential service.
- At all material times, the plaintiff was such a customer – either because of his exposure to bush fires while living at Blackwood or Malmsbury or health issues which resulted in his being taken to Emergency by ambulance on three occasions.
- Telstra provides a second- or third-rate response to those needs.
- But Telstra insists on pursuing this course for the purpose of making profits in the short term to the detriment of the business of Telstra in the long term.
- The primary beneficiaries of this mode of business are the executives of Telstra who in practice run its business day to day and whose remuneration depends on the profits that the business makes over the short term.
- Consequently, Telstra has refused to change that way that it runs its business in sending Australians offshore with their complaints or queries.
- After discovery, the plaintiff will lead evidence of the relation between bonuses paid to executives and monies allegedly saved by Telstra in not employing properly trained people in sufficient numbers in Australia properly and safely to service the needs of Australian customers of Telstra.
- People investing now in public companies do so in a market at least parts of which will hold companies to account for the extent to which they observe community standards in the way they manage their business. This market focus on ‘equity investing’, or Environmental, Social and Governance issues, means that public companies must at least consider whether their conduct of their business meets community standards and expectations on issues such as the climate, same sex marriage, discrimination on the ground of sex, sexuality, religion or race, Covid, or profiting from sweated overseas labour, or retaining people to supply services to it by forms of agreement that deny those people the benefits arising under a contract of employment.
- In putting its call centres off-shore because it does not have to pay people so much there, Telstra acts against the wishes of most of its customers and ignores prevailing community standards in Australia, and it denies employment to people in Australia.
- Like other major corporates including banks, Telstra is committed to reducing the numbers of people it employs and replacing them with robots or the like.
- For that and other reasons, Telstra fails adequately to train or motivate its staff.
- As a result, the staff of Telstra are neither content nor proficient in their work, and customers of Telstra are angry and frustrated.
- These matters are, and have been for some time, well known across Australia; if anything, they are even more notorious outside the major cities.
- The directors of Telstra have not taken the trouble to call Telstra and be kept waiting while being subjected to multiple replays of recorded messages before getting through to speak to someone who is difficult to understand and whose understanding of the relevant technology is at best limited.
- The directors of Telstra have not spent enough time trying to deal with this management issue at board level.
- By reason of the above, the directors of Telstra have failed properly to manage the business of Telstra.
- It is on the basis of those allegations that the plaintiff contends that Telstra has acted with a contumacious disregard for the rights and interests of the plaintiff, and other Australian consumers, and has acted unconscionably, and abused its power and position in the market, such that it is fair that the Court award punitive damages against the defendants.
AND THE PLAINTIFF CLAIMS: DAMAGES, INCLUDING PUNITIVE DAMAGES, AGAINST EACH DEFENDANT.
It would be indecent for a lawyer to encourage people to litigate in order to gratify the emotional needs of the lawyer, but I throw this out there for general discussion. Do the facts alleged warrant the kind of legal consequences that are suggested? Assuming that the court found the allegations of fact to be proved, and that no defendant had a good defence, what kind of compensation or other remedy do you think a court should order?
I shall come back to the role of directors later. And later we will see how this conduct of Telstra is inconsistent with the teaching of Adam Smith in The Wealth of Nations.
After I quit the NAB, I took such business as I have, which isn’t much, to the Bendigo Bank. They have the same problem as other banks. They don’t train or trust their staff – the two are related.
And as the following post shows, they can treat their customers like dirt up there with the best of them.
This post is written in anger.
This afternoon, I needed access to my accounts online with the Bendigo Bank. I could not get on their site on this laptop. I therefore screwed up my courage to ring them. No one likes ringing a bank or Telstra. After the usual noughts and crosses games, the computer gave me a quote of a delay time of eight to twelve minutes. Not good – but bearable. I then got subjected to that banal repeated propaganda that tells you so much about the mentality of those running these outfits – both banal and grasping. That lasted thirty minutes before I hung up in disgust. THIRTY MINUTES – out of my life because a bloody bank can’t get its act together – decently, or at all.
The original quote of delay time was wantonly reckless if not downright fraudulent. I was not given the option of taking a call back if I wanted it. And the propaganda kept repeating the same dreadful lie – ‘Your call shall be answered shortly.’
The directors of the Bendigo Bank should be deeply and personally ashamed of the way that they manage their bank. They obviously chase profit so that they mistreat their customers. That is not good business. As it happens, I hold shares in that bank. And I am now deeply offended as a shareholder – because I personally do not want to be a part of a business that is so rude to people and that treats you and me as just means to their ends. The conduct of these directors sadly reflects the collapse of courtesy and common decency in our public life. What kind of person would now trust what a bank said?
I repeat – the directors of the Bendigo Bank should be deeply and personally ashamed of the way that they manage their bank.
And it did not take those bastards long to wash Ken Hayne right out of their hair.
Later when buying watch from a Hong Kong dealer, for which I was required to transfer money in AU$ ‘by wire’ to Hong Kong, I was told that the transaction required my personal attendance at a branch of the Bendigo Bank to give effect to that transaction. And, as happens with a bank or the police, I was asked to show my driver’s licence. You can imagine how well that throwback to the Gold Rush went down in Hong Kong.
I would later undergo similar conniptions in buying flat and selling a house. I want to be there when a bank officer says: ‘Yes, Mr Murdoch. You can have that billion dollars – but only after you show up downtown with your driver’s licence.’
Formality above humanity.
This happened the other day. It was a Friday evening – 5 pm. Just in time for the BBC on the war in Ukraine. Followed by some footy. It had been a long and traumatic day. The shift of the final pieces of furniture into the new flat.
Moving is traumatic – like a divorce in reverse gear. The TV cabinet was one of the last pieces to come in. (I must hide the TV. Looking at a blank screen is not good – for me or the décor.) That meant reverting to the old small TV that could fit in the cabinet. Eduardo and his mate from Colombia made the switch and linked up the TV to the Foxtel box. – and it worked. Bravo Eduardo! But on pouring a red and turning it on – no signal from Foxtel.
You don’t need that after a day of moving. Why did it work before but not now? Well, I had little option but to ring Foxtel. God knows how much I fear and detest that process. I had endured five weeks with only the BBC because I did not wish to ring Foxtel. It ranks with Telstra for pure bastardy. What prompted the six week lay-off was that after an abortive hour or so on the phone, I got on to someone by SMS. Bonzer – you ring me on the blower and we will fix it in no time. Sorry, mate – not allowed. Oh, go on. No. I simply cannot. I am not allowed.
What was implied but not express? I need the work and I will lose it if I depart from the Foxtel script – even just to be sane and decent. And in the name of God, don’t let anyone even dare to suggest that Foxtel employs me.
This is the point. Even if you ever get through to a human being, you are speaking to a unit of communication rigidly controlled by a robot. The people are forbidden to use what minds they may have. They have in truth been converted into robots.
So, I take a gulp of red and make the call. Just after 5 pm. The process would conclude in darkness at about 7.30 pm that night. Bob – the names are fictitious – had that strained, artificial voice we are used to at call centers. Brusque, syrupy, script reading trying to mask nervous ignorance and straight fear. Stick to the script. Deviation not allowed. For example, Bob could not process the fact that the removalist who had made the connection was not a Fox technician. And the fact that I was operating the TV manually without a remote – at that stage of the move – sounded prima facie suspicious. That provoked about two consultations with management. In God knows what parts of the planet at either end.
The darkness of night descends every time you wander out of the trouble-shoot program. Bob puts me on hold from time to time to get help. He does not get it. After about thirty minutes, Bob accepts that the issue is beyond him. I ask why the set worked before but not now. Every time, the answer gets more convoluted. Way above Bob’s pay level – or that of anyone within cooee of Bob or me.
One time we stop so that Bob can ring me back. That makes me very nervous, but he manages to bridge the gap safely. We discuss getting a technician. It was of course ludicrous to suggest that Foxtel might be able to do that over the weekend. Which happens to be the time when people who follow sport – that is, most Australian subscribers to Foxtel – most want it. But Bob has continuing trouble with the schedule for technician calls. He will ring me back. Again.
The second call was too much for Bob. After half an hour, I decided that Bob must have fallen down a very big hole. Back to the blower. Thank God for the relief and sustenance of the red. But Sue has to start again from scratch. I just want to know when the technician will be here. No – there is a process that must be followed. We must exclude all other causal factors. (Did Sue see herself as Hercule Poirot?) This is after the usual delays and recorded warnings and lies.
So, I have to prove my identity. Again. The person to be called back has to prove he is not a mirage or a fraud – and he might be wobbly on the first by now. Sue had trouble matching my email address. I gathered this may have been what sent Bob clean off the rails. By the end, Sue gathered from what I had said and from Bob’s notes that I just needed to be told when the technician would arrive. After more than two hours all up, Sue could not tell me – except that she thought it would be Monday, and that I would get an email about it – followed by an SMS.
I did get an email. It was of course ‘noreply’. Your function is to be neither seen nor heard. We robots are not quite perfect yet.
In fairness, I should say that when I actually got to deal with a human person on the service call, he was a model of sense, practicality and courtesy. Mark might be the Platonic form of the handyman. Mark hails from England – around Milton Keynes. We discussed the bus trip from Cambridge to Oxford – by the time you get to Milton Keynes, you might be sea-sick from the roundabouts. Going to the loo is not a good idea for the boys on that bus.
Top bloke, Mark – pity about the outfit for whom he was subbing.
Twelve days later the box started giving trouble again. The following day, I settled on the sale of my house, and was looking forward to a rest with Mozart’s Idomeneo followed by the footy on TV – Easter Eve with a 2010 Bordeaux. The box was completely gone now. Another evening and celebration ruined by Foxtel. On the blower. Fifty-eight minutes – say a half of football. As it happened, Regina was understandable and appeared to know what she was doing.
But a day or two later, the box failed again, and I settled for a broken service for a while before taking my life into my hands and picking up the phone again. Then the box got the staggers seriously. Some nights I had to reboot; some nights, not. Then I got a rude SMS saying the direct debit had not been good for the fee for the service call. I might be penalized or disconnected. There should have been no fee because the fault was not with Eduardo but the Foxtel box. So, I try to log in to pay a fee obtained under false pretenses. The robot refuses the Password. I apply for a new one. Even then they lie. ‘We have sent you an email.’ No, you have not. Still, the robot kindly informs you that you may try again!
And then comes the insult to beat all insults. The robot asks you to sit a little test – to prove that you are not a robot! It’ s like when you see your contact at the bank for the fourth time in a week, but before they actually do something, you have to produce your driver’s licence to prove your identity.
I tried by SMS. That failed. So, I went to talk directly to the robot on the phone. Five minutes active typing. Did my father’s father fight on the Western Front for this kind of humiliation of his descendants?
And so it goes, as Kurt Vonnegut said a propos the bombing of Dresden. Truly, truly – George Orwell let us off with Big Brother.
Now a month or two later, I made a written complaint and got a ‘No reply’ response. So, I just endure having to reboot almost every time I turn the box on at night. Then after another period in the waste land, I got a new box after talking to a very pleasant lady who sounded like she may have been auditioning for the role of Flower of Delight in the next production of Kim. Then the problem recurred in the new box.
Is it possible to conceive of a business being run honestly and decently when it prevents its customers from talking to them?
And don’t these outfits, and those who run them, know or care about the rage we feel at the contempt that they show to us? This is a bad product sold by a bad company that is an unattractive child of two unattractive companies.
Just look again at the statement of ‘Foxtel Values’ in the inscriptions at the start of the book. As bullshit goes, this is transcendental. And is it lawful for directors of a trading company to say that customers come first – ahead of the shareholders?
Near last comes the name that strikes many Australians with terror or despair.
About three years ago, I decided to apply for a Commonwealth Seniors’ Health Card. I had deferred it for years because I was afraid to confront the monolith. Let me say that differently. I feared my own government. I wanted the card for relief from considerable medical bills – I was being treated for terminal cancer and incurable emphysema – and because it would give me a dispensation from stamp duty in my part of the market when I executed my plan to go back to Melbourne from the bush.
So, I screwed up my courage and went ahead.
The only question was whether my income exceeded $X. It plainly did not. That should take at the max about half an hour to complete a form face to face with a competent civil servant. But, no, you must go online with MyGov. (People at Vic Roads love this – ‘No, no. no. no, no – you can’t do that here. Don’t be so silly. We might have to think – or – God help us – exercise some judgment. Or be RESPONSIBLE.’)
MyGov ranks with Centrelink in the terror stakes. After three visits to Centrelink in Bendigo and three visits to Castlemaine, and about twenty hours all up, with great help from a sane regional accountant, I was worn out. I had received a long list of incomprehensible requisitions from the Crown. I was about to toss in the towel. I wrote to my federal MP saying that I was not making a formal complaint or request for help yet. Forty-eight hours later, the card arrived in the mail. Unaccompanied by any letter of explanation. Just the card – unadorned. You would of course have to be off your rocker to expect an apology.
That is a very sad story. How did we fall so low? It is not just wrong but entirely unacceptable that when an Australian comes to grief, the people they most fear are the Australians who have been appointed to help them out.
Her Majesty, Queen Elizabeth II
There is a kicker to this story about my efforts to curtail my liability for stamp duty, which is a tax payable to the Queen. I looked at the market where I would buy after I had sold my house in the country. I would be buying at a level well under the Melbourne median price. Well, stamp duty would not be a problem. You silly boy, you. My solicitor told me the stamp duty would be about $38,000 – well over three times what I had paid for my first house.
How much relief would I get because of my protected health status? About one thousand dollars. You would have some change from a bottle of Grange Hermitage.
I have never felt so insulted. You work hard for more than fifty years. For thirty of those years, you serve Her Majesty the Queen hearing and deciding difficult cases for derisory pay. For eighteen of those years, you hear tax cases, including stamp duty issues, some of which reach the High Court. It takes you years to get the state revenue authorities to understand that the law now insists on taxpayers getting a fair go – and that the times have changed since the last war (World War II). You get fired from both positions for reasons that are as political as they are grubby and disgraceful. Then you spill your blood to get tax relief on stamp duty – the tax that cost George III and England the American colonies, and which is the most unpopular tax in Australia. Then you go to buy your last modest house of refuge and residence before you rejoin your ancestors and your dog. And what does your grateful government do for you?
It slaps you in the face.
And this was at the time when the federal Attorney was handing out jobs to mates for the federal AAT like confetti. In a government that shrieks out loud if you suggest that they should be investigated for corruption – which they are all in up to their necks.
Well, there we are – as one footy commentator I like is wont to observe.
Looking back at it all now, I wonder if I am just a grumpy old man who cannot accommodate himself to the world as it is – the world that faces his children and awaits his grandchildren. Well, King Lear was ‘unaccommodated man’, and I don’t want to join him. Things didn’t end well for him at all. ‘So, out went the candle, and we were left darkling.’
I am sorry to have taken so much of your time with these rogues – for that is what they are. But I want us all to be very clear about the conduct that we are looking at. It is like[i] a lawyer setting out the evidence and findings of fact before moving on to look at the legal consequences of those findings – or, perhaps, the moral and political consequences. Indeed, that is just what I am here trying to do here.
And we want those responsible for these forms of abuse – and it is abuse – to look at the company they keep. ASIC might ask what it has in common with Foxtel. Telstra might ask what it has in common with Fines Victoria.
And we want to know: Who, if anyone, will accept responsibility for this conduct? Who, if anyone, will admit that this conduct is a form of abuse of you and me that we are justifiably sick of?
And ask yourself this question. If you have a position in a profession, trade, business, or in the permanent civil service, and someone alleged a similar kind of relevant misconduct against you, how would you feel?
But first, we may look at what these forms of abuse may have in common. Then, later, we will come back to see how the last federal government used the federal AAT as a dustbin for its own moral decline and fall.
Courtesy – robots – Momentum Energy – dignity – implied obligations – misleading conduct – wrong of insult or outrage.