In this post I issue a very serious warning to Samoan lawyer Rosella V. Papalii, counsel for Samoa Observer, a company that I am suing for $3,500.00. In this letter I call her to account for a few professional and personal ‘sins’ and give commentary [
mostly all negative] on the validity and merits of her Counterclaim of $2m defamation against me. I give her some homely advice and then offer her a full digital copy of my latest book The Two Million Tala Palagi for a Right of Reply. She’s got a real problem on her hands as a result of presenting a document in court that she signed for it contains a proven lie that is the entire basis for her client’s defence. Continuing with the Defence and Counterclaim in the knowledge that it is all based on a lie destroys her professional credibility, but removing the lies destroys her client’s credibility AND defence. Oh what a tangled web we weave . . . but doing the right thing always costs us!
In 2012 I entered into an agreement with Savea Sano Malifa, Editor-in-Chief of the local rag in Samoa, Samoa Observer. I’ve blogged about the man, our deal and the original articles extensively since that time. Links at the bottom of this page. Following the [sadly all too common] Samoan cold shoulder treatment, two and a half years after getting ripped off, I sued Samoa Observer, for $3,500.00.
The hearing in the District Court dragged on with delaying tactics and less-than-ideal dealing to a smiple matter of commercial justice and ended in a Statement of Defence and Counterclaim from Samoa Observer for $2m defamation. This then bumped the matter up to the Supreme Court. My book, my blogging and this Open Letter result from this action to ‘up the anti’.
I’m up for it, love a good fight, especially with liars who act on passion and greed for I depersonalise all matters then act with cold logic using only facts. The truth will always out and Sano (as you will see in this Open Letter) has made some big mistakes – he’s outed now as a liar, my story is being validated by the day as is my credibility and exposure, internationally and locally. I don’t do this for exposure, preferring to do only the basics of SEO but of course I’m happy when it comes. I hardly know Rosella. The one time she did deign to speak to me she was lucid and friendly although there doesn’t appear to be an excess of humility in any courtroom I’ve ever been into. What IS it with those black gowns that converts real people into legal machines?
I’ve included this Open Letter in my book as well as the entire story relating to Sano and Samoa Observer, and I would consider it a serious challenge for a lawyer who has stepped right into the firing line. On the one hand she has a high profile client who is (as I have found at more and more) widely despised but also feared and a new boy on the block, a Palagi blogger [with attitude, I guess you could say].
In this Open Letter I take a variety of angles, a bit of the paternal approach “Listen honey you’re out of your depth”; the friendly softly, softly angle “I really don’t want to cause a problem here, but . . . ” and the stern legalese stuff that should scare the pants off any lawyer with half a brain, sending them off to the best legal mind and book she can find, for I am essentially threatening to include her and her legal practice in my Counter-Counterclaim of $2m for she deceived the court and by rights I should really have had judgement by default by now – not staring down the barrel of a vexatious $2m Counterclaim!
There are a lot of legal issues at stake here; reputations and of course money. While it would be an inconvenience to be bankrupted it would make a stunning statement about my willingness to pay the price for speaking up against one of the many bullies in positions of power and influence here in Samoa. Their case is nonsense and based on the proverbial BS but even if they did win they’d get the better of a rats’ behind for their troubles – so as is usual in people that race off to court, it’s all about ego and pride over facts and logic.
In that regard I have found the legal profession is generally adept at, you guessed it . . . legal stuff, so that when a couple of lawyers get together they gravitate towards legal solutions. Sometimes this is appropriate but MOST of the time legal things are HUMAN things. I know that they HATE [and often with a passion] dealing with those who represent themselves because in the main real people simply don’t think like lawyers and want miracles like justice from the law, when in fact the law is about the law – not justice – and if the two coincide, count your lucky stars! The other thing is that all the legal puffery is stripped away and shown for what it is when someone like me breezes into their private party, asks a few direct questions and snuffs the life [i.e. income streams] out of the party.
The real issues of this Open Letter are personal though, and they relate to a lawyer who has prepared a Defence that is based upon proven lie and a decidedly dodgy Counterclaim, the one that has turned me into a minor sensation for those who have seen the book cover – I am now that guy who is getting sued by Samoa Observer, The Two Million Tala Palagi. Funny how the Samoan coconut grapevine works eh? You’ll never get Samoa Observer shouting out about this case in a million years because they’re on the back foot at every stage and ground is looking shakier as every day goes by, but the word is now out there and people are talking. “Oh so YOU’RE the guy that the Observer is suing!” was what one person said to me yesterday when she saw the book cover.
Ms Rosella is not a spring chicken in Samoan legal circles with responsibilities in the Samoa Law Society for years. The Samoa Law Society was founded in 1976 but has not had a totally smooth ride with fights amongst themselves spilling into the public arena. This issue is bubbling along and could possibly boil over into a major scene too. Previous scraps have been between Samoan lawyers bringing the legal profession (and the society) into disrepute. With a Palagi rattling the cages though, rest assured that tensions will be at breaking point very quickly, for if there is only one thing worse than getting embarrassed for Samoans, it when this is done at the hand of a Palagi. Watch the entire industry batten down the hatches and protecting their own – it’s what they do, Samoans AND the legal profession.
For the record, as I say in the Open Letter, I have no malice, but am not averse to defending and using the court systems when all else fails. Savea Sano Malifa has made his choices and will be too proud now to back down and apologise. Rosella on the other hand is at a crossroads and has seven days to make a judgement call – take me on and show the world the true nature of Samoan lawyers or do what I think is the honourable thing and rectify the problems that she (through her client) has created for herself, her profession and indeed the integrity of Samoa.
The eyes of the world are on her . . .
Open Letter, Rosella V. Papalii
14 October 2015
Attention: Rosella V Papalii
Rosella V. Papalii Law
Level 2 Maxkar House
Convent Street, Saleufi
Events to date
- On our first meeting you slid a document to me face down along the table, simultaneously standing before a judge of the District Court without anything such as a smile, greeting, introduction or indeed any normal human interaction;
- I considered that behaviour arrogant, unnecessarily aggressive and offensive but kept my thoughts about it to myself, until now;
- As I have observed lawyers talking to lawyers in and before court and cooperating with each other on legal matters I therefore know that it is possible for lawyers to distance the personal from the business;
- From this all I concluded that you are not a ‘normal’ person, or if you are, then you deliberately chose to interact with me the way you did;
- I believe that you chose to personalize a legal matter in a large part because of influence from your client who has chosen an extremely adversarial stance based on gossip;
- I would have expected a professional lawyer to:
a) undertake due diligence of your own in regards to whether or not your client’s approach was reasonable or based on fact
b) conduct yourself professionally even if you did find in your due diligence that I was for some reason worthy of being sued;
- From this initial meeting, I concluded that your arrogance mirrored your client’s as did your conduct mirror his being “fooled by gossip” – birds of a feather . . . it seems;
- Your first document advised of an act that was about to occur at your hands, namely a request for a revised Statement of Claim;
- Your client had received a copy of my Affidavit on 21 July 2015, and you made no attempt to communicate with me over any matter of clarification, so therefore I conclude that you again deliberately chose to do this;
- I assume that you did this to delay the proceedings when there was actually no need to do this
- I wonder to myself, “Why? Was it a power game?”;
- From this all I concluded then that you were more concerned with appearances (and likely your legal career) attempting to achieve this through legal ‘point-scoring’ than in justice, the supposed goal of legal representation, and particularly in a country proud to claim that it is “Founded Upon God”;
- If what I considered as your unnecessary aggression was indeed a ‘power-game’ then this proves you to be a ‘nasty person’ and puts you in the same category as your client;
- However I suspect that there is a very good possibility that you did not have my Affidavit in which all evidence and claims were detailed in incredible detail (indeed LONG IN ADVANCE of the hearing date), in which case then you have been misled by your client, for he received it only 5 days following Letter of Demand on the 26th;
- Should this be the case then you have been set-up by your client, deliberately or through carelessness or incompetence;
- In our second mention in court you sought a two week delay from the judge in order to take instructions from your client for the preparation of your Defence and a Counterclaim;
- You did this simultaneously with the judge suggesting a two week adjournment thus the timeframe was one of your choosing, not an instruction from the judge;
- On our third hearing you did not appear;
- The judge asked the court staff to attempt to find you and asked me to wait while that occurred
- In all other civil cases I have observed where the Defendant failed to appear the matter was heard in the Defendant’s absence and a judgment by default entered, should there be appropriate proof of course;
- I believe that my Affidavit provided sufficient proof for the judge to have awarded at least the initial amount I claimed, and very likely the consequential loss, although on the latter part this is a matter of conjecture;
- I wondered to myself, “Why did the judge adjourn and not proceed with the hearing/default judgment as would be normal conduct that I had observed?”;
- I conclude from this point (particularly in light of events that followed) that justice has been denied me which of course is a matter of grave concern;
- At the next hearing date you explained your non-appearance the week before because you were busy in the morning with a complex case and you “forgot”;
- You then apologized to the court, although I note though that you have not apologized to me and failed to even merely acknowledge me when you spoke to the judge;
- Again I view your contemptuous attitude towards me to be another example of personalization of a business matter and arrogance that prevents you conducting business professionally;
- The judge accepted your explanation and apology and on the surface I would consider this reasonable . . . except that incredibly (to me) you proceeded to seek a further adjournment, “In order to obtain instructions from your client for a Defence and Counterclaim”;
- Excuse me? Why didn’t we proceed with the hearing on that day?
- Doing this indicates that you were not prepared for a hearing and draws into doubt your explanation and apology issued immediately prior;
- I note that you had a full two weeks, a timeframe that was of your choosing to prepare your Defence and Counterclaim yet hadn’t;
- I believe Rosella, that you misled the court for you actually did not have your case ready for hearing on the day and while you may or may not have forgotten on the day, you used the “forgetting” experience to ‘get off the hook’ and buy yourself more time;
- That the judge awarded your request for a further week instead of proceeding with a hearing on the day (and a likely judgment in the absence of any defence) is in my opinion a second denial of natural justice due to me;
- I consider this a very serious matter and not simply a case of “Oopsie, I told a little white lie, but the judge bought it, so I got away with it, ha ha!”;
- Misleading the court, either through providing factually incorrect information OR through retention of relevant information is immoral conduct from anyone, and I call you to account, personally;
- I note that in our oaths we commit to telling the truth, the WHOLE truth and nothing but the truth;
- You will recall that I spoke to the judge complaining that justice was not being served;
- Misleading the court like you have done from someone in the legal profession and especially in the context it did occur is professionally reprehensible, and I reserve the right to take the matter further;
- I consider that this was an event that has now caused you extreme legal exposure, for if it can be shown that the Counterclaim would not normally have been accepted with a default judgment being entered, i.e. that the only reason that it was accepted was based on you misleading the court, and the court believing your ‘story’, and if your Counterclaim is successful to ANY degree then you/your practice is potentially liable;
- I hereby put you and your practice on notice of potential litigation and/or dealing with this matter of professional ethics in an appropriate manner;
- I recommend that you advise your professional indemnity underwriters and the keepers of professional legal standards in Samoa (I think you know a little bit about the right people and place to do this) of your potential exposure forthwith;
- Immediately prior to one of the hearings you approached me outside the court and engaged with me meaningfully for the first time;
- Thank you for that, although I believe from your words that you had an obligation to do that;
- Your statement of Defence and Counterclaim contains factual error, multiple grammar mistakes, faulty logic, deliberate misrepresentations and self-contradictory statements/insinuations;
- It is not a document that I would be proud to associate my name with, especially if I was a lawyer;
- I have blogged my opinion about it on my website;
- Between you and your client you have prepared a case that I believe is a despicable act in the history of Samoa’s proud tradition as a country “Founded Upon God”;
- In our court hearing yesterday you failed to acknowledge me nor to discuss any matters relating to the case until before the judge;
- Why not?
- I find your continuing conduct unprofessional;
- I am currently publishing a book entitled, “The Two Million Tala Palagi” (ISBN: 978-0-9941251-2-5) and except for any right of replies from yourself and/or your client) it is currently ready for printing;
- As well as an introduction, it essentially contains the entire series of blog posts relating to your client and the court case;
- It includes references to you, mentioning your conduct in court (albeit lightly) and a damning commentary on your “dodgy document” – your Statement of Defence and Counterclaim;
- It contains the entire set of “lousy” Palagi Perspective articles;
- It contains a pledge to assist anybody else stung by your client, past present or future at no commercial gain by me;
- It contains a copy of this letter;
- I am happy to supply you with an advance digital copy should you want it;
- Should you wish to obtain a copy for yourself, simply ask me for it;
- I am happy to include any response you provide me which is your right of reply;
- Should you wish to exercise your right of reply, simply email me within five days, ensuring that you have an acknowledgement of receipt from me;
- I have emailed Sano with the same offer; if he wants a copy I will provide it to him, he just has to ask me for it;
- If he wants a right of reply to be included in the book, he’s welcome to include it;
- I have included at the end here the covers of the book;
Rosella, I have no interest in causing you problems per se, nor buying a fight with you, your client or indeed anyone in Samoa however please understand that I am a man who deals with truth; who has a strong sense of justice and who is an extremely “Black and White” guy driven by principle.
This can make me a pain in the a*** to deal with, but also formidable adversary for those who act in an unfair or ungodly manner for I never give up.
I will repeat this for your client has not yet worked this out and is digging a deeper hole for himself because he clearly doesn’t understand that I never give up . . . ever.
I want you too to understand this clearly, that the pragmatism that is rife within Samoa that ‘does deals’ with the truth and ‘plays political games’ with it (like legal posturing or submitting to corrupt authority) and ‘dances’ around the truth with little white lies has no place in the life of a godly man, one called by and obedient to a living God.
I deal only with the truth. I stand for the truth and I believe indeed the Truth, and will do so even if it costs me my life. I’ve told you that I am a man of principle; just ten minutes of research and due diligence online will reveal this to you and a small reflection over the contents of this post/letter too should alert you to the fact that, unlike the information you have probably been fed, I am anything but a smooth-talking opportunist.
I believe that Sano has made a grave error of judgment in this regard.
I published documentary proof of your client’s lies online within hours following receipt of your dodgy “Statement of Defence and Counterclaim”. I have produced a book exceeding 43,000 words that is ready for the printers only five days later (logistics of supply from China to Samoa will delay physical distribution of the book around the world of course). You live in the legal world. I don’t, however as an author and investigative blogger, exposing lies, greed, injustice and immorality online (and in this case in print) this is all simply a walk in the park for me – it’s what I DO – it’s who I AM.
You have either prepared a document for the Supreme Court of Samoa knowing that it contains lies OR having found out following your submission that your client has lied to you and got it accepted on the back of a deception. Your court document and now this Open Letter to you is in the public domain, a permanent record of falsehood and (I believe poor quality logic and dubious legal advice) with your signature on it. Note therefore that the public has the ability to observe, follow and analyse all aspects of your professional conduct now and for posterity. Simply search on Google for your name ROSELLA VIANE PAPALII or ROSELLA V. PAPALII and you will see the power of the Internet when this page comes up. It was indexed less than an hour after I published it.
The flipside to this of course is that they have every opportunity to observe, follow and analyse all aspects of MY conduct. That though is price I am prepared to pay for exposing others and this is only fair.
Please note that I reserve the right of course to update and maintain my blogging of all matters of my interest. Until I received your Defence and Counterclaim, I simply considered you and your conduct something as a peripheral issue to my blogging and investigative attention, however that has now changed.
I believe that I understand the attitude and motives of your client very well, but just because he doesn’t want to engage with me constructively doesn’t mean that I need to respond in like manner. I am quite willing to sit down and talk about any matter, anywhere, at any time by arrangement.
I now move into the legal factors and the will finish with some personal and philosophical issues.
In the preparation of my case, even before discussing the merits of your Counterclaim, I have three issues to address. Your legal training and experience will enable you to assess the legal merits of these better than mine however the issues are ones I will be bringing to the court to address prior to our hearing proper and submission of my Defence and Counter-Counterclaim:
- The validity of your Counterclaim – not in terms of its merits but whether or not it is a true Counterclaim. Should your Counterclaim be assessed as another matter distinct from my original claim then one would have to view the two matters as distinct, my first claim heard in the District Court, and your defamation case in the Supreme court with Samoa Observer the Plaintiff and me the Defendant. I discuss the issue of validity of your Counterclaim in more detail shortly.
- The conduct of the District Court of Samoa in all events leading up to their accepting your $2m Counterclaim. If it be found that natural justice has not occurred, ESPECIALLY in the event that the court was misled by you, counsel for the Defendant, then it will be ethically difficult for a Supreme Court to accept the matter, and it should refer the matter back to affect natural justice. I’ve already addressed some other consequential issues above.
- My right to defend myself – there are matters that neither you nor the Supreme Court are likely to be aware of that may influence the Supreme Court judge’s capacity to even rule on the matter of my representing myself. If I have a formal application to the Chief Justice for the right to represent myself in the Supreme Court and a decision on this is pending, and if you (or anyone) challenges my right to represent myself, and I reveal this to the Supreme Court then proceedings must surely be stayed until the CJ responds one way or t’other to my application? This is indeed the situation and my application was placed before the CJ, and confirmed multiple times that is under the CJ’s current consideration. This was done long prior to my even commencing litigation in the District Court, thus when it comes to the crunch and somebody challenges my capacity to defend myself in the Supreme Court, I will seek adjournment until the CJ rules. Even then if the decision from the CJ is negative the matter may not end there.
On the next hearing date I will be seeking a return of the original matter to the District Court and a separate filing of your $2m defamation case in the Supreme Court. I will be doing this based on the assessment that the Counterclaim has no connection with the original claim (other than of course that the two entities are the same). It is not my intent to raise any concerns with your conduct, nor the events relating to the District court – at that point. I just want the original case for $3,500.00 returned to the District Court and heard in the place that I believe it should be heard.
Should the Supreme Court deny this and instruct us to proceed, then I will seek that the case be returned to the District Court on the basis that I have detailed above – two scenarios of natural justice denied and the reasons why I have claimed that judgment should have already been granted by default which will of course raise the matters relating to your actions.
The reason that I intend to approach the matter in two stages is simple – I am a pacifist and do not want to buy unnecessary fights nor cause problems for others. If the Supreme Court judge grants me a separation of the two cases then the events of the past mean little TO THE CASE. Of course they have enormous meaning in a moral and PR sense but as long as I have my day in the right court over my $3,500.00 claim then I can consider these other matters for another time and place.
On the matter of representing myself, I will of course be seeking to represent myself at all times, hence my application to the CJ some time ago, long before I ever met you.
I have addressed the details of the defence aspects of your Statement of Defence and Counterclaim online and the court can hear this all in due course. For the record, I caution you and recommend that you validate the entire basis upon which your defence is based. I consider it vital for your professional career that you confirm independently of your client’s advice to you the validity of their claims in the document you signed and submitted to the Court.
I am telling you now that your document contains provable error; that I have exposed the lies central to your defence online in public AND in the book The Two Million Tala Palagi and that with receipt of this letter advising you of the falsehood central to your defence I believe that this means that if you proceed with this action in its current form you expose yourself to charges of professional misconduct of the most serious kind.
My Counter-Counterclaim will be for $2m being natural justice whereupon any claim before a court based on falsehood and malice should be rejected and any punishment that would have been issued to the innocent party upon that falsehood instead be issued to the deceiving aggressor. I will be referencing to the moral basis for the law especially biblical references in the context of Samoa’s overt and proud Christian tradition.
Apart from the Words of the Master Himself, you may care to consider the specific teaching of the Torah, the book of Esther and some of the writings of Paul in relation to restorative justice in this regard.
Validity of Counterclaim
Leaving aside the merits, personalities and politics surrounding the Counterclaim for the moment I believe that your Counterclaim is invalid. I note the following:
- The two entities are the same – Dennis Arthur Smith and Samoa Observer … Ltd, however nothing else coincides!
- The original claim was for payment of services rendered to your client, in view of the failure to provide promised services by way of contra from the period of some months ending 31 January 2013 when your client ensured an emphatic unilateral termination of any business relationship
- The Counterclaim relates to claimed damages resulting from a blog post in February 2013.
- It has no relation to the articles written
- The articles written were published in a newspaper – my blog post was online
- The articles were supplied to and used by the Sunday Observer
- The blog post was published on www.dennis.co.nz
- Neither Sunday Observer nor my personal blog had any relationship at the time of the blog post
- The only relationship existed (according to your Statement of Defence and Counterclaim) was that of a short-term speculative supplier whereupon I provided articles for publication at Samoa Observer’s whim and indeed they published only three of them.
- This is not a causal relationship nor is it contractual nor indeed is it ANY direct relationship
- The relationship that you claim in your Statement of Defence and Counterclaim is akin to a child writing a Letter to the Editor.
- To then file a Counterclaim against a child because they sue you for some minor matter is a cynical misuse of Court processes and poor legal practice
- It smells as though your client has instructed you to “Sue the b*” no matter the facts, logic or legal foundations for doing so
- I consider that a lawyer best representing her client’s best interests would have strongly suggested that the current offering was folly at best and potentially PR suicide and most likely worse
You’ve never done a defamation case before have you Rosella?
For your sake I hope that your client sees sense and withdraws the case or that you see sense and bow out as gracefully as you can.
For my sake I hope he remains arrogant and aggressive and proceeds with the case – it matters not who represents him!
There are other reasons for my desire here but the primary reason for this desire on my part is that no defamation has occurred. None! Period!
In order to be a lawyer, you needed to study the law . . . right? Yes!
Who am I, Rosella?
Amongst other things, I am an author and an investigative blogger. That’s how I bill myself and it is my profession, just like you are a lawyer. The only difference between us is that (I assume) you do things in your profession for money and I’m fortunate that I don’t have to and in the main don’t.
I have written a dozen books and exposed some really nasty crooks online as an investigative blogger. I have been threatened physically, legally and more, usually by the people I investigate and expose. I have more than 800,000 words on my blog and multiple websites exposing crooks, criminals and crazies yet I have never lost a court case in 42 years of standing up for truth and justice which sadly means fighting nasty people. Some very large companies, powerful people, high profile people have threatened to but haven’t sued me.
The reason it happens this way Rosella, is because I am a professional, just like you and while you study the law, I study natural justice, culture, strategy, language and I reference this all through the biblical values and standards. I also study defamation believe it or not, because I know that there are people out there, nasty powerful people who hate the truth; who want to hide behind facades of goodness, fame or greatness or who develop systems of deception who would just LOVE to bring me down.
This is what they typically do when exposed:
First, they ignore me. Most of them commence their hatred at that point but they are dishonest, so they don’t confess to their sin and repent, rather they lie to themselves that they can get away with it – you never can! Sano did and still does this to me. Children and wimps do this. Real Samoan leaders and strong men don’t – they stand tall, fearing nobody but God.
Secondly they put me down. This is the phase in which passion and feelings rule logic, because it is a logical fallacy to shoot the messenger. We call it ad hominem which you will know means literally “to the man” where you play the payer and not the ball. Thus they crucified the Truth thinking that they can destroy the truth in the process and mould their lives into a truth of their own making. Calling me names means nothing as your client has found out because I only deal with the truth
So I am careful in what I write, pouring over every word of creativity to ensure that it is my best representation of truth, reality and logic that I can make it. I check for poor motives on my part (such as intent to harm or defraud). I take a detailed look at each word for spelling and grammar. I analyse the big picture, putting the whole thing into context – biblical, social, my own personal goals and motivations and then quite often I will sleep on it, sometimes leaving a post in draft for days, weeks, even months, and then when I am 100% comfortable with the post, I hit PUBLISH.
I do this ALL myself.
Rest VERY assured that I did this with the post your client apparently has a problem with. I knew EXACTLY what I was doing and why I was doing it the way I did!
Now it doesn’t stop there, unfortunately for you because one of the critical aspects of defamation and any related restorative justice is the circumstances surrounding the publication of something defamatory, and respectfully, may I suggest that you research the subject just a little?
If I write an opinion, such as the ones that you allude to in my post that Sano was fooled by gossip (which by the way is so anemic that you just gotta wonder how fragile the guy and his company is) and if Sano had an issue with this, the NORMAL process is that he would exercise his Right of Reply. There are again issues surrounding this natural justice and he will be perfectly aware that when he runs a hit-piece on someone then if he fails to publish the ‘other side’ then he exposes himself.
Your client not only failed to exercise his Right of Reply clearly stated on my website and linked to from EVERY page, he also refused to engage with me in any way let alone meaningfully despite me attempting to contact him more than once.
Lesson 101 in journalism law is over and done with then.
Your entire defamation case is undermined by your own client’s refusal to engage. Thus you strike out on base one!
The next lesson is in timeliness – if there is a long delay between the time that a defamatory action occurs and the time of restitution or correction and if an injustice occurs as a result of that delay, then this is an important factor – Lesson 102 in protecting your butt is to act fast when challenged with defamation!
The reverse of course is true when making a claim of defamation. A delay not explained logically through circumstances (such as being out of the country or not becoming public or found out until later) between the time of defamation and the taking of action indicates an ulterior motive for taking action. So, somebody writes something ‘bad’ in January 2013 . . . the subject (“Mr Malifa”) learns about it a month or so later through the tip-off from a certain gentleman from Fusi, in Safata . . . who then does NOTHING about it for two and a half years, [cough, cough Rosella!] . . . then claims serious damages in a counterclaim to a minor commercial court case – nah! For goodness sake, even a child could see through your defamation case.
Honey let me straight here, if you haven’t got the message yet . . . I think the quality of your legal advice lacks somewhat. I would have advised your client to “bury it for g*** sake”, just cough up the $3,500.00 and get on with life (and if he insisted on pushing through with it despite your advice then I would have gently suggested that he find another fool of a lawyer willing to prostitute their professional reputation for a ‘lousy’ quid or two)!
The next thing is that while there are exceptions for public figures such as politicians and political events basically it is VERY hard to sue for defamation on an opinion, clearly stated as such. You will need VERY high standard of proof that I was say in a high position of influence where my opinion carried more weight than normal. Unfortunately for your client’s case I am a private individual blogging, guess what, my opinion. As with this post/letter, the vast majority of my website contains opinion – because like it or not, that’s who I am, an opinionated person!
In case there’s no mistaking this post, I think that you have given poor legal advice to your client. I think that you lack experience in and knowledge of the basics of defamation and/or you have succumbed to your client’s instructions against your better knowledge.
Please sue me if you disagree. You might restore your professional pride and you will get a tax rebates on your legal expenses if you know how to do things right.
Lastly there is the issue of fact. Should what I say be proven as true, i.e. I have spoken a fact, then you have no case.
Now this is a real problem for you because if I defend [why would I not with the reputation that Samoan lawyers carry around, validated by my direct observations from your conduct and a judge who extends excess grace to you and then gets effectively conned?], you risk all Sano’s dirty washing coming out of the woodwork. I am sure that [cough, cough] in your risk assessment you did with him prior to lodging your defamation case you would have advised him that he would need to defend against the claims of being a d*ck, or being arrogant or fooled or whatever else I said that he’s got his t*ts in a tangle over and having to quantify for the judge, knowing full well that this would all go public what the real and practical losses and damages were/are.
As I’ve said before, I can’t wait for discovery on this matter . . . “On xxx date I was in xxx pub and xxx said xxx about me because the blogger said xxx about me THEN pointed at me and laughed!”
That’s $2m please!
The Mainstream Media suing a blogger for defamation is also probably a newsworthy story – internationally. Talk about upping the anti! All I have to do is blog about it and it’s out there for the taking, as high profile as they want it to be. Hopefully for Sano’s and Samoa’s sake it doesn’t happen and nobody gives a hoot about Samoa.
Hmmm, maybe there ARE some ex-pat Samoans who care . . . and . . .
Risking the possibility that I would defend AND bring in every person whom your client has ever p*ssed off in decades of rough-and-tumble is well a high-risk maneuver. Should we proceed to trial, and disclosure do you know how many people willing to join in class action? Do the research Rosella. Just get someone to go anywhere in Samoa, start with Afega if you’re not sure of where to go and ask the question if there is anybody willing to speak up for injustice at the hands of Samoa Observer and Savea Sano Malifa.
I’ve never lost a court case yet and you made our business relationship personal. I can and will respond in kind. I play for keeps Rosella. In case you don’t have the time or inclination to do this research, I’ll help you – I’m an investigative blogger and I ask a lot of questions. In regards to my questions in and around Samoa over Sano (which I started in Q2, 2010 BTW), I’ve found that there are a LOT of people out there who would love to give their side of the story about Sano if they knew that they could get a share of the spoils of class action against him – lots.
Did you ever assess the possibility of getting anything out of me? Did you do any due diligence on me to assess this?
Rosella I am worth heaps in terms of my intellectual capacity, my creativity, passion, commitment and more but I’ve lived off capital in Samoa for six years now. What do you think is in my bank account? Do you know if I even have one? Do you think I’m motivated by and go for money? I have friends around the globe all telling me that I’d make a killing in New York, London or Australia; one desperate for me to come to Dubai where he tells me that I will be a millionaire inside 2.5 years if I did, yet I stay in Samoa without a bank account nor a credit card and just helping the little people in the face of people like your client who delight in gossip and ripping others off. I walk in the hot sun away from the District Court in Samoa while you drive past me down to your airconditioned office. I catch the bus to the wop-wops and live in my little Faleo’o. I buy keke pua‘s for lunch because they’re tasty and yes, I admit it cheap! Do you seriously think you’ll get a cent out of bankrupting me?
Suing for defamation is a dangerous game, which I’m sure that you and your client will have discussed thoroughly before taking such action [cough, cough again] because what it shows the world is that something important to you is lost as a result of immoral conduct by another. This brings attention on you and your business BUT it also draws attention to me and MY conduct. Should you fail in your case you have a double loss – you go down but I go up. It’s a dangerous game you’ve engaged in.
So, even before we get into the merits of the details of your Counterclaim we have a lawyer who (I assume) has no experience in defamation advising (I assume) the owner of the local rag that has (anecdotally) half the country itching to get back at him to sue a Palagi blogger for defamation over an opinion or two on an opinion-website two and a half years after the event in direct response to a small civil claim for $3.5k for a whopping $2m when they guy owns a hundred bucks worth of clothes (if that) and a computer but is a fearless, passionate principled, active investigative blogger who has taken on international crooks and brought them down and who has tried desperately but unsuccessfully to resolve the matter in a godly, true Samoan manner which is to sit down and talk, man to man!
Spare me days! As they say Rosella . . . .only in Samoa!
Please, just do one thing for me, DON’T withdraw the Counterclaim, pay the $3,500.00 and just go away. I really, really want to see your client in court and see him perjure himself when he presents his defence. I’d willingly give your client everything I owned to see that for this would be the act that represented the true pinnacle of his career. All I want, is to have that day in court and watch it, with my own eyes, that’s all!
Merits of the Counterclaim
I move now to the merits of your actual Counterclaim and amplify my online analysis.
The title “Savea Sano Malifa fooled by gossip” while not the entire substance of your claim summarises the point that contradicts later claims. The title indicates that we are talking about a man FOOLED and what he has been fooled by: GOSSIP.
This title is not defamation and if the blog post is in keeping with the title then you have no case. If the title was Sano’s a liar, which is worse, or Sano is a thief then perhaps, if you can prove that it was a lie, malicious, reckless and that I failed to correct it when challenged. IF!
You suggest that “the whole context [you mean tenor, thrust, intent I’m sure] of the blog is defamatory, scandalous and libellous” but you have to PROVE that. You don’t because you can’t.
Your own words of description run contrary to your own claim because you say that my words “infers” and “carries the imputation” thus there is no direct correlation between the words I say and anything defamatory.
Look, I can say, “I don’t trust lawyers” and then say that, “I like women in bed” BUT while that might INFER something or CARRY AN IMPUTATION there is no direct correlation of the two thus you have no case that I plan to do anything untoward. You have to prove connection of the two statements and then apply them specifically, not just some general wishy-washy “implies” something that you or your client fears or dream up!
I’ve told you previously that I am very careful with the selection of my words. I believe that you have not proven your case thus far.
You claim that “the publications [have] lowered the Defendant and Mr Malifa’s reputation in the mind of right thinking members of the local and international community so that they would think less of the Defendant and Mr Malifa, its editor in chief.”
In this you are likely correct on the matter of lowering the reputation of Mr Malifa, for I have exposed aspects of his conduct that he knowingly consciously attempts to hide from the public. Once again this is my opinion and except for the Holocaust in some countries, religion in other countries and words against the systems of power in others, sharing my opinion is not a crime and it certainly isn’t defamation.
Should I be found to be in a particularly powerful position and have abused this by sharing my position and sharing my opinions could potentially be defamation then the next question is “Is it true?” for if it is then again it is not defamation, so we should then go to trial in which I will prove the case, you will prove yours – Sano’s was or was not fooled by gossip, he’s fool, dick, goose or whatever else I said or he’s a nice guy who always writes the truth.
Bring it on baby – if you dare!
I wish to draw your attention to the concept behind the words you used tying “Mr Malifa” with the Defendant when you say “and therefore lies to form the basis of the articles and stories published by the Defendant”.
This is a logical fallacy called a strawman argument. I never said that. I don’t talk about Samoa Observer’s credibility. I actually don’t even talk about Sano’s writing capability! I do however talk about his gullibility and his unethical business conduct, surprise, surprise!
You see if we were to use this line of logic in my above example you could sue me for threatening to rape you which of course I never did.
If I said something bad about Samoa Observer, sure, sue me if it’s false, but I gave my OPINION about one man who happens to write for and own the Samoan Observer. Are you going to encourage Afega or his grandchildren to sue me because they got laughed at in school over their grandfather?
Even if the facts are not in doubt, you can’t sue for defamation without direct cause. I don’t give diddly squat about third parties and their claimed losses when I talk about spoke about and am only ever dealing with one man and his conduct. Yes, I sue the company legally because he represented a company but the other way round and the Defendant claiming losses because I supposedly defame Sano . . . nah Rosella, your case has no merit.
May I venture to suggest that you are clutching at straws?
Lastly I refer to your legal costs of $40,000.00 and suggest that you will be earning substantially more than that from this all if it goes to trial and that you will need to revise your figures upwards of that. Remember that I have all the time in the world, I am representing myself and have every intention of defending myself vigorously and effectively.
The real pot of gold at the end of your rainbow can expand to as much as you want. It’s in my interests to make your bill as big as it can be is it not? More exposure . . . more witnesses telling the world the real story about your client’s conduct . . . talk about character assassination in a court of law . . . and that’s all without even watching your client sweat over your bills. If it wouldn’t be illegal to conspire with you I’d consider doing a deal like lawyers do amongst themselves all the time to crank up their earnings from their clients!
Put a one in the front or a nought on the end of your account if you think you’ve got any chance of winning a $2m case here! You’re selling yourself too cheaply especially when people can see your sloppy, ill-prepared case riddled with half-baked effort at trying to score a cheap bob or two. If I was a lawyer I wouldn’t do it for less than a million for you are very likely going to hear the words, “Ms Rosella, your case is nothing like you try to claim and strikes out on several points . . . first Mr Smith has written his opinion online, and while your client may not like what he says, he’s perfectly entitled to his opinion. Furthermore Ms Rosella, your client failed to give Mr Smith any opportunity to rectify any wrong AND then waited for two and a half years to claim serious damages submitting a claim only in response to Mr Smith’s case AND . . . ”
OMG! You’d be hard pressed to find any lawyer who’d take that sort of shame for a million even, well, maybe not but you get my drift, $40k is wa-a-a-y to low.
My defence is on several levels as I have explained here:
Statement of Defence and Counter-Counterclaim
I have detailed the essence of my defence above.
You do not have a valid Counterclaim, for there is no correlation between my claim and yours.
Your Counterclaim claims that defamation has occurred however:
- My blog post contains opinion and is clearly written as personal opinion;
- My opinions were based on fact and actual provable events;
- I wrote about an individual, Savea Sano Malifa and his personal interactions with me NOT his capacity to write
- Your Counterclaim describes inference and similar which acknowledge no direct causal relationship between either the Defendant and the blog post or the subject
My Counter-Counterclaim will be $2m being the amount claimed of me under a vexatious lawsuit based on multiple falsehoods.
I reserve the right to include you and your practice in the proceedings, a decision I will make after 5 days and prior to Monday 26th October 2015.
Personal & Philosophical
I want to tell you one of the reasons that I push through with this matter, indeed relish the thought of responding to Sano’s $2m defamation case against me even to the point of publishing a book about it . . . the question of course is simply, “Why?”
It’s because the ‘little people’ all tell me in various ways that “he’s a pr*ck”. The ‘little people’ to a man, dislike him, some really despise him and most fear him through the power that he wields being the primary source of news and commentary.
There is, as I see it, widespread belief that Sano has abused his position of influence in Samoan society with his newspaper AND that he has done this for many years. I consider my actions in taking on a man who is despised for his abuse of his fellow countrymen a noble act, and that’s on top of the basics of justice to me, personally.
Now this is important, and vitally important for right-thinking people to hear, know and understand, and it is that the matter has escalated from virtually nothing into the stratosphere entirely at Sano’s hands.
- I sought only for classified advertisements in return for the original Palagi Perspectives articles – that would have cost him NOTHING!
- I only suggested that Samoa Observer pay me for the MISSING advertisements that Sano’s company failed to provide as agreed – that was only what he failed to deliver and even then it was simply a suggestion – he could have easily sat down and negotiated something else if he wanted to
- I only sought for consequential loss of the MINIMUM conceivable consequential loss for the absence of advertisements – consequential loss only came in because of me taking him to court when he never responded positively (indeed at all) after a very long time
- His legal costs have and will continue to escalate as a direct result of HIS decisions to maintain an adversarial and aggressive role – I simply stand for what is my right
- I will only claim $2m in my Counter-Counterclaim against his company (and potentially you) because that’s all that he claimed against me. Selling the integrity of the Samoan legal system for accepting a lie is potentially a $2b [billion] tala of devastation to the country, not just a miserly $2m. He’s really lucky that it will only cost him what he sought from me under false pretences, for I can tell you that already people are talking about extending it to class action and doing their planning on how to divvy up the spoils of war.
But the matter is even more clear-cut in that at our first meeting, I offered to help him – I explained that I had helped many hundreds of businesses over the years, particularly as a strategist. Sano failed to respect me, listening but not hearing, thus missing the opportunity that he had to tap into a resource that in the words of a senior politician assessed me many times as “an asset to the country”.
The way of the devil is to take good things and invert them for evil. He lies and twists things for his own ends. Sano has done this to me, and I believe that I am a totally ‘straight’ man only trying to do good things.
The way of God however is to invert evil and in the face of love and truth turn it for good. Inverting a problem into an opportunity is a biblical principle and is what I teach and counsel my friends and clients when they face challenges in their business or personal life.
I convert a defamation case against me into opportunity at every stage – first my blogging exposure increases thanks to Sano’s foolishness. Secondly my credibility and exposure goes through the roof when he sued me – funny eh? Thirdly I have increasing numbers of people who want to know more about the REAL me and how the h*** I can take on Samoa Observer and what the h*** I’ve said that Sano would want to sue me for $2m.
And all this Rosella is even before the court hearing which it is still not yet even known whether or not I can defend myself!
The way that I do this is simple, but not easy . . . I just shoot straight, standing for the truth, indeed the truth, the whole truth and nothing but the Truth.
In February 2013, I exposed Sano online and today I have exposed more of you, personally and professionally. My personal motivation is 100% professional. I am an author and an investigative blogger and I tell you that I have not one skerrick of personal mal-intent to you or to your client. I’m not stupid and I know that the vast majority of people cannot distance the personal from the issues but I can and in the main do, however I do have the capacity to personalize things.
In my investigations I ALWAYS extend grace well beyond many others. In Sano’s case however the gloves are off. In your case, I’m attempting with this long blog post/letter to give you every opportunity to avoid something here getting very personal.
Sano has (thus far) failed to truly grapple with what is unfolding before him and I believe has made a string of unwise decisions in relation to me. To date he has failed to deal with the matters I raise in a biblical, true Samoan or constructive manner. If I tell you what I think about that you can include it in your court case too . . . I think he is just another STOOPID Samoan walking around with his nose in the air too proud to acknowledge the fact that one day he’ll be buried; half the country will cry and the other half will laugh and my words of exposure will rest in the consciousness of every right-thinking person of the globe who searched SAVEA SANO MALIFA and bothered to ask the questions.
I counsel you to avoid the same error, and to read these words carefully and ponder them deeply.
I know full well that by writing about and exposing you as I have that I could potentially drive a wedge between you and your ‘pot of gold’ but my intent is only to see people do the right thing.
In one of those quirks that life throws at us, you Rosella, with the events thus far, have been gifted a golden opportunity to make a stand for truth and justice. You have the opportunity of a lifetime to not only DO the right thing, but to be SEEN to do the right thing in a very public spat between a socially insignificant Palagi blogger speaking cold hard logic based on fact and principle and a high profile client with enormous influence who has based his words and actions upon emotion, gossip, greed, self-interest, Samoan sensitivities and worst of all deception – of the court but more importantly for you, his most likely deception of you.
For obvious legal and moral reasons I cannot advise nor even suggest what you do in response to this letter, but when I discussed the matter with a friend yesterday, just chatting and laughing with him over the book cover and how your defamation case has turned me from “a smooth-talking opportunist Palagi [with hardly a penny to my name]” into “The Two Million Tala Palagi” our conversation turned to you. He said without a second hesitation that you’d always side with the money. Such is the opinion of lawyers in Samoa! Perhaps he’s right, but perhaps he’s in for a surprise.
I’m ambivalent to your choices, as a man who speaks the truth has no need to influence others. In my experience a prophet who does more than to speak the truth is usually a manipulator, something I do not want to be. Straight shooter. Hated for it, sure – manipulator, no. Truth is self-evident to the humble, is not in a hurry and has no need for violence so I have a story either way.
When you do your due diligence on this matter, I suggest (like I did) that you just ask the key questions:
- How many people Sano has p*ssed off?
- Have they got reason to despise him or is Sano a good man who has been unfairly targeted?
- What would likely happen if word got out that there was class action brewing and that there was the potential for a payout if a case based on proving Sano’s credibility succeeded?
Rosella, the word is out now and discussions along this line of thought are already occuring.
In regards to me, I would ask you to consider:
- How thorough or ethical is my conduct?
- How many people would choose to represent themselves; then to publish a book exposing your client and his moral crimes PRIOR to a court hearing; then to write over 10,000 words like this to the other guy’s lawyer and then to publish it online?
- How much of the above words are based on greed, distortion of the facts or do you assess to be the truth, fair and reasonable? I’m not asking you to like me – just the facts and the logic is all.
I believe that I am a man of God Rosella, genuinely following the biblical principles; the teaching and direct example of Jesus. It is my desire that the people of Samoa (and that includes all people like Sano and yourself) who have done wrong right them in a godly manner. The court of law is not the only method of dispute resolution as you will well know but I will go there if all else fails.
I believe that your client has made a series of poor decisions.
I believe that you too have done the same.
I believe that I am a straight shooter, motivated and a formidable adversary.
I counsel you to read these words I’ve just written very carefully and proceed from here-on-in with extreme caution and the utmost of professionalism.
Lastly, I ask you to please conduct yourself in a professional manner and that includes timely delivery of documents to me, rather than slipped into my hands simultaneously with a hearing. In this regard I willingly accept emails and will continue to offer you too the utmost in professionalism. Thank you.
Dennis A Smith
Author & Investigative Blogger
CEO, SWAP Foundation
[Click images for larger resolution]
- Savea Sano Malifa - Fooled by Gossip - the orginal post exposing Sano's foolish reliance on gossip
- Samoa Observer Sues Blogger for $2m - My initial notice following lodgement of Samoa Observer's Defence & Counterclaim
- Samoa Observer’s Dodgy Defence - Analysis of SA's document showing lies, twisting & logical fallacies
- Blogger Sues Samoa Observer - My [first] case against SA, the one that triggered their defamation case
- Open Letter – Samoa Observer - Telling it like it is!
- Observations on Samoa Observer - One example of SA's immoral conduct [theft]
- Suing Samoa Observer - An offer to help anyone anywhere sue SA
- MEDIA RELEASE: Samoa Observer Sues $2m - Media Release summarising the defamation case
- The Two Million Tala Palagi - The Book, contains all documents, web posts, the original articles and commentary
- Warning to lawyer Rosella V Papalii - Open Letter to Samoa Observer's lawyer discussing legal, moral and personal issues relating to the case.