In this post I share the entire contents of my Statement of Defence (and Counter-Counterclaim) in the $2m defamation case in the Supreme Court of Samoa, Samoa Observer vs Dennis Arthur Smith. I’m “going” on truth, nothing else. It’s now a full scale credibility war between the MSM and a blogger; between a Samoan High Chief and a Palagi (foreigner); a rich man vs poor man; a socially connected & powerful man vs a virtual social outcast. Legal Eagles will likely find it interesting.
It’s also a fight between a proud old man who has no compunction to lie but a “goose” of a fool who listens and believes the gossip he hears (that’s the owner of Samoa Observer, Savea Sano Malifa) and an equally proud little blogger who asks all the wrong questions of the wrong people at the wrong time; who will never give up and is ruthless in his pursuit of, speaking of and worship of the truth.
In five months time, all the black suits will walk onto the stage and have it all out before a judge if the Supreme Court of Samoa. On the 26th March 2016, [actually probably a full hearing scheduled for sometime after that] Sano will have his day in court and can rip me apart as much as he wants. Two million smackeroos are up for grabs and the guy wants it so much that he’s lied already to try and get it. If he carries on going the way he currently is then he’ll destroy his reputation in the process but don’t say I didn’t give him plenty of warning. I shoot straight and am fearless. In my last post I mentioned that I will be ‘going on’ truth. The proof of that is the Statement of Defence and Counter-Counterclaim that I lodged in the Supreme Court of Samoa today. Luckily a Statement of Defence doesn’t cost anything to file, so all I needed today was my bus fare – I’ve already spent $56.00 on the Claim and the two Motions so it’s adding up to quite a bit now for a guy who lives on the smell of an oily rag.
In defamation cases there are several ways to tackle a defence – it’s legal mumbo jumbo but basically you can say, “Well I thought what I was said is true and had reasonable grounds to believe that – which is called HONEST OPINION. Or you can say, “Well what I said was the truth” – which is the option I’m using.
As the cartoon above alludes to, it is normal to hammer the opposition in court and break their case apart so that they lose and you win. As I mention in my Statement of Defence, their case is so pathetic that I KNOW that the judge would kick their butt out of court within minutes if I asked him to do that (This is called Striking Out) but I don’t want that. I want it to go to trial and I want a judge to look at the evidence and rule. Now that I’ve lodged a Defense and Counter-Counterclaim they’re going to have a h*ll of a time wriggling out of it now, which was what I’m sure they were angling for – wait until they get my Statement of Defence and then assess their options and pull out at the last minute. I’m only guessing but I know the way crooks and lawyers think [isn’t that a bit of tautology there?] and they would have surely schemed how to create maximum cost, complexity, and stress for the little upstart blogger from outta town who had the cheek to sue the ‘big’ newsman Sano.
Their problem now is that with my counter-Counterclaim for the same as theirs ($2m) they stand to lose that if they do not push on and if they do, then they will perjure themselves and surely embarrass themselves from their ‘backside to breakfasttime’.
OK enough big-talk, let’s get into it. I start with the simple statements that they’ve lied on everything they claimed. I didn’t need to do this at the moment because I can do that in court but if the judge splits the cases then these points need to be in my Defence & Counterclaim, and I refer to their lying in the document so that seems good practice, the way these guys play the game – no assumptions – all honkey dorey – I can live with that.
I then move straight into the big one – that because I will defending on truth alone this is therefore all about credibility. This is a strategic decision, and as I allude to above a high risk strategy but it delivers a set of incredibly powerful messages:
- That I’m prepared to risk all on my word;
- That if Samoa Observer pulls out of the case now then they will have done so because they believe that the truth will rest with me – that’s a win by default to me and they cannot claim that their lawyer advised them this or that – because it’s now not a legal issue – it is a credibility issue, pure and simple
- That if they loose then a [supposedly] neutral judge heard all the evidence and they didn’t come up credible against my words.
I live for; live in and love the truth. I speak it, always have in the last 30+ years anyway so there’s no risk in the slightest the way I look at it as the cartoon puts it!
I list the things that I know that the judge and all other lawyers would tell me to call on to kick the nonsense into touch. I do that so that there can be no appeals on the basis that I didn’t know what I was doing or forgot something later, no mistaking this, it is a deliberate choice in full knowledge that there are a whole heap of guns and ammunition available to me, but I just want the slingshot and one stone, thank you!
I live work and play with cold facts and logic. If the court does too, then I win – simple.
The other thing is that I don’t want people in ten years time saying that I won because I got a good lawyer, or I got lucky or that I was a tricky dude with legal tricks – I want it VERY clear that this is simply a showdown between two dudes to find out who is telling the truth. Winner takes all if you like.
Here it is:
IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU MISC 1748/15
BETWEEN: DENNIS ARTHUR SMITH of Aleisa
AND:SAMOA OBSERVER COMPANY LIMITED of Vaitele
STATEMENT OF DEFENCE AND COUNTER-COUNTERCLAIM
THE PLAINTIFF responds to the Counterclaim as follows:
CORE DECEIT – DEFENDANT’S ENTIRE DEFENCE
- THAT the Defendant has lied in their Statement of Defence and Counterclaim, NAMELY:
- In relation to the circumstances surrounding acceptance of the articles that I provided to the Defendant but were not paid for,
- In relation to the payment arrangements entered into; and
- In relation to the number of items published;thus causing serious credibility issues for all statements provided in their aforementioned document;
CORE DEFENCE – TRUTH
- THAT while there are excellent grounds for a Strike Out motion based on multiple factors, including;
- potential perjury;
- obvious malicious intent;
- failure to exercise any right of reply;
- two and a half years of delayed legal action since the claimed defamation occurred;
- action initiated only in response to my Claim;
- a provable call to honest opinion;
- illogical presentation of the core claims of defamation and more,the Plaintiff leaves all other matters in this claim to the fate of the Honourable Justice hearing the case and only wishes to defend the Counterclaim on the basis of truth and I intend oppose any effort to deny me a hearing, from any source;
So there, that’s done. Now I mention the significance of this because anything they say or talk about that doesn’t address an issue of credibility, I’m simply not interested in. Lawyers love to argue the little stuff. I just wanna get into the juicy bits – trust him or trust me.
- THAT the credibility of the two parties is therefore the central matter of dispute and the only matter of defence at trial;
- THAT I will be producing many witnesses and affidavits that strongly affirm my character, credibility, capability, professionalism and ethical conduct from Samoa and from around the globe;
- THAT Mr Savea Sano Malifa as owner (and representative of the Defendant) and myself are both intensely proud individuals who have clashed in the commercial world, a dispute that has then moved into what is essentially a public forum (online);
- THAT the matters in dispute have escalated from the combined actions of BOTH parties over a period of years, notably me initiating legal action with my original claim, then the Defendant in bringing defamation action and now this Counter-Counterclaim;
This is a little unusual admitting that you are proud man in a court document and then putting it in the public space, but it’s a technique that I’ve developed based on analysing the Master. He stated who He was many times and because He always spoke the truth, people showed themselves for their true character as they dealt with Him.When I confess that I am a proud man (and I surely am) it depowers detractors who think that they can get one up on me by showing me to be proud, or calling me proud. Sano doesn’t have a reputation for going around town confessing his lack of humility – far from it in fact, so this is new territory for him. If he accepts this clause then he’s admitting that he’s a proud man – that could be a first. If he denies it then he’s saying that I’m not a pproud man too. If he tries to argue one and not the other then he either has to be right OR people will laugh at him and see him for who he really is.It’s a little thing but pride quite often trips up some very big people with some very little things.
I now move into the huge importance of the case. Now a judge reading this will no doubt raise his eyebrows and really take note because these are the things that could make or break a judicial career. I like it when people in authority focus on the issues I say for good things result. The opposite of course is when people like Sano don’t listen and just bulldoze me away. Many have rued the day they ripped me off.
- THAT an enormous amount is at stake in these matters including:
- The Credibility of Samoa Observer, Samoa’s largest and longest running newspaper;
- The Credibility of Mr Malifa, arguably Samoa’s most senior journalist and respected newspaperman; and
- The Credibility of the Plaintiff, an author and investigative blogger;
- THAT the loss in credibility of the Samoa Observer would have enormous long-term ramifications throughout all sectors of Samoan society, potentially all negative that would benefit perhaps only the incumbent political party and those who ‘had a beef’ with them and then only in a short-term manner;
- THAT the loss of credibility of Mr Malifa would have a devastating ripple-effect throughout the business of the Defendant, to his family, offspring and villages throughout his sphere of influence particularly aggravated by the circumstances that he is likely in the twilight of his long and challenging career;
In an adversorial system (like the legal systems) and in an adversorial approach to life like Sano has (well certainly to me and the others that talk to me anyway), it’s not normal to worry about or talk about or care about the other dude’s problems but I care. This is the NORMAL human condition prior to the entry of pride. When the case is finally heard, Sano is going to have a whole circle of friends, family, partners, staff, indeed people all around Samoa from the schools right through to the Prime Minister watching him. When it all comes out, and it will, there are going to be so many people hurt, bewildered and angry at what he’s done to bring shame on them all that it could devastate innocent lives. I don’t want that, but if that is the price for me defending the truth in the face of an angry vindictive man suing me then so be it. The judge (and the world) must know though that I’m fully aware of the costs and the significance of what I am doing. This demonstrates in public, before the court and to Sano himself two things a) I don’t act like a “dick” even when provoked with a vexatious $2m lawsuit and b) He does.
- THAT the loss of credibility to the Plaintiff would have devastating and long-term ramifications on a blossoming career as an author and (online) investigative blogger and would be a huge potential loss to Samoa’s growing online reputation as a country that hosts someone worthy of respect, particularly in the online world;
Of course this is the “poor me” part of my defence. I go on here with the consequences should the defamation case proceed and eventually succeed on the lies. They would be huge, literally unmeasurable, but I state here for the record – I don’t care what somebody else thinks. If a judge says, “Too bad Dennis, nice try, but you gotta cough up the dough”, well so be it, I’m bankrupted. Big deal! Of course I will stand and fight for what I believe in but the only thing I live to hear are the words, “Well done good and faithful servant”.
- THAT there is huge conflict globally in the perceptions of the public in regards to Credibility of the Mainstream Media (MSM) as represented by Mr Malifa and the Defendant, against the ‘blogosphere’ as represented in this case by the Plaintiff.
SERIOUS PUBLIC INTEREST
- THAT cognisant of Clauses 3 – 11 above, that the matter is of serious public interest particularly to (and within) Samoa, but also globally;
One of the things of note in Rosella’s court documents is a huffy overstatement of the facts and an immature tit-for tat approach. I’m not incapable of returning like for like at times but I’ve tried very hard to put this accurately, as I want the facts to speak for themselves. The point though here is that there is an incredible potential for good and bad when you look at what is happening here. The MSM/Blogosphere thing is a multi-billion dollar conflict for the hearts and minds of the viewing public. Sano has really stepped into a minefield way way way more than I’m sure he could ever have dreamed of. Either way I win, because I’m a master at making something out of nothing; or turning adversity into opportunity but Sano’s exposed. If he pushes on and loses, this will be a huge win for the anti-MSM boys. I don’t know about landmark, but it could be, certainly a chalkmark in the sand for Samoa.
- THAT the Plaintiff is an accomplished author with 13 titles in various stages of publication AND an investigative blogger specialising in the investigation and exposure and of international criminals and commercial financial fraud in the alternative currency field;
- THAT my investigations have included significant exposure of some very large and high profile frauds including privately owned companies WITH alleged billion dollar turnovers and Publicly Listed Companies with multimillion dollar turnovers;
- THAT in the six years I have resided in Samoa, I have to date blogged 829,458 published words averaging 1,643 words per post, the primary topic discussing the Samoan culture from a Christian worldview, AND the second most prolific topic being investigations into the alternative currency industry;
- THAT my blogs have ultra-fast exposure on the Google Search Engines being indexed by Googlebot (Google’s robot spider), hourly;
- THAT my photographs, stories and ideas about Samoa are almost always at the top of the SERPs (Search Engine Results Pages) AND often virtually the only story that exists, THUS I have incredible influence in how Samoa and Samoan culture is perceived online;
- THAT due to the nature of Internet materials, my words have a permanence and authority – as defined in two ways: human credibility but also in terms of how Search Engines like Google assess their ‘rankings’;
- THAT to date I have exposed serious fraud and corruption in multiple jurisdictions, notably the USA, The Netherlands, The UK, Australia, New Zealand and some of them spread across dozens of countries AND have achieved successes that have stumped some of the best legal teams that money can buy;
- THAT I currently have investigations underway in more than one jurisdiction (including Samoa), WITH one Australian company currently under my lead in a private investigation of a combined Ponzi Scheme and Pump & Dump operation with fraud estimated in the vicinity of $AUD400m (four hundred million Australian Dollars) and some claimed 24,000 people affected worldwide;
- THAT I have more than one ongoing investigation within Samoa including individuals, the legal profession, the Police, the Samoa Land Corporation, the Ombudsman’s office, the Prime Minister’s office and the Samoa Tourism Authority;
- THAT to date my credibility has only ever been called into question by those whom I have investigated and exposed AND always in direct response to the investigative blogging I have conducted;
- THAT no claim of wrongdoing or error on my part has ever been proven to have substance apart from minor errors of spelling, grammar or minor facts corrected openly online in quicktime;
Yeah yeah yeah. A little over the top for a statement of Defence maybe but Samoa Observer put in a little rant about their awards and stuff, so what’s good for the goose is good for the gander I guess. Oh darn . . . there I go again defaming the old boy again? Maybe I did. Nah, he’s definitely a goose alright, a cooked one at that too I reckon!
- THAT many a victim of my exposure has threatened to sue me for defamation in the heat of the moment BUT that they all have chosen NOT to sue upon receiving professional legal advice; then UNDERSTANDING the basics of defamation; then understanding the principle of negative press (commonly known as the Streisand Effect); then applying them to my writing and then finally exercising WISDOM;
Right this gets serious but I used a bit of creativity with the words and this clause. What I’m saying here, pretty directly but without actually saying it is that yes, I know I’m polarising, yes I know I’m a pain in the posterior but you should have engaged brain before racing off to court, sir.
- THAT the Defendant is the FIRST victim of my exposure to either receive legal advice to sue me for defamation OR to instruct his counsel to sue for defamation in the face of legal advice to the contrary;
This one has a nasty barb for as I say, either the legal advice he’s received is in the pits, or he’s pushed his weight around to get her run the Counterclaim up without really thinking it through. In fact I actually have no real issue with the Counterclaim – it’s poorly conceptualised and wouldn’t win a dime in any serious jurisdiction that I can think of but they have every legal right to submit it and give it a go, but if Sano has left it all to his lawyer and Rosella was the brains behind it then he’d have a pretty strong case against Rosella for pathetic legal advice, unbecoming of a junior apprentice lawyer, let alone an experienced supreme court lawyer who was the secretary of the Legal Eagle Cartel (oops I mean Law Society) and as I said before is no spring chicken. Some of the senior players in the industry should grab a hold of her and have a quiet word to her methinks. “Back off the gravy train honey”, as Kenny Rogers sings in The Gambler, “you gotta know when to hold ’em; when to fold em and when to run . . . ” What’s even worse for her is that I have warned her in writing that she’s exposed and that she should advise her liability underwriters that she’s exposed. If she hasn’t (and I’m sure that she won’t have because she’s proceeded with the case on the back of proven lies and no underwriter would EVER have let her do that) then she’s on her own and not covered on this one anymore. Maybe lawyers in Samoa don’t bother with liability insurance – I don’t know and don’t care.
- THAT my credibility, commitment to the truth and Christian ethics outworked in practice is at the upper (honest) end of the scale of deception;
- THAT my writing style is free but extraordinarily generous in all my written materials, including my blog entitled, ‘Savea Sano Malifa – fooled by gossip’;
This is all relatively straight-forward stuff. She makes wild claims – prove it if you can. She uses crazy logic – OK prove it in court if you can. Think about this for a minute, that’s more than these turkeys have given it, I say that Sano was fooled by gossip and she’s suing me because I said that Samoa Observer bases their stories on lies? What? He told me in a private email that he believed the gossip about me then he breached a commercial contract because of that. I say basically that he’s up himself and fooled by the gossip and that’s $2m thank you from the newspaper! These guys are bat-sh*t crazy!
I can’t wait to cross examine her witnesses. I just can’t wait!
DENIAL OF DEFAMATION
- THAT I deny the allegations in Clause 8 of the Defendant’s Counterclaim that the whole context of the blog post entitled ‘Savea Sano Malifa – fooled by gossip’ is “defamatory, scandalous and libellous” and put the Defendant to the proof thereof;
- THAT the Defendant’s Clause 9a (“That the blog and specific comments set out in 2 -7 infers that the Defendant and Mr Malifa relies on gossip”) is false in that I actually STATE that this is my opinion, very clearly, indeed a major point I made in the aforementioned post and that therefore no inference has occurred;
- THAT I deny the Defandant’s claims in Clause 10 and put the Defandant to the proof;
- THAT I question the Defandant’s claims in Clause 11 and put the Defandant to the proof, particularly in relation to the blog post in question, “Savea Sano Malifa – fooled by gossip”;
- THAT I deny the claims in Clause 12 of the Defendant’s Counterclaim and particularly the inference that they are an ethical company when in fact they conduct business unethically, specifically:
- lying in a court document;
- stealing the work of others, then denying the rightful owner reasonable and legal opportunity for redress;
- failing to honour commercial agreements for their own pecuniary benefit; and
- utilising the Samoan legal processes to bully those whom they choose to harass
AND claim that rather than being “reknowned” in a positive sense they are rather “infamous” for their hypocrisy, blatant commercialisation of news, one-sided reporting, over-the-top sensationalism and suchlike;
- THAT in relation to the Editor in Chief (Mr Malifa) being an award winner and any inference from that that he is a man of credibility and [good] ethics, that I claim instead that he is seriously lacking in credibility and [good] ethics and that I reiterate herewith my opinions stated in the blog post in question that:
- Mr Malifa was indeed a “goose”, as defined specifically as being “silly” or “lacking common sense”;
- Mr Malifa did indeed act like a “dick”, as defined specifically as “conduct of a self-centered nature with less regard for others than is socially accepted”; and
- Mr Malifa did indeed “have an attitude”, as defined specifically as a “bad” attitude most likely resulting from him being “fooled by gossip” combined with his now badly-exposed pride;
The judge will look sideways at this I’m sure. I’m expecting a stern look over his glasses and a, “Mr Smith a Defence is not supposed to be a charge sheet you know. It should lay out your defence not detail all the other parties crimes!” to which I will say, “But sir, my defence is running on truth and that is the truth!” I can see him rolling his eyes and thinking, “OMG how many more days do I have to put up with is nonsense in my courtroom?” Too bad, all these guys get paid for me having fun!
I might get really lucky and Rosella will file a Motion to have my Statement of Defence etc all redone with less accusations in it and then another defence of THAT motion and then the Judge pushes the whole thing out for another week or two or ten so it goes on and on and on with another couple of thousands words of blogging going up there week after week telling the Search Engines that the word Sano + goose go together for the next 100 years and that Rosella + crazy + Samoan + lawyer all go together!
I’m not joking, just type in either of those two phrases and see for yourself!
- THAT because the Defendant’s claim takes issue with the fact that I claimed that he was ‘fooled by gossip’ then logically, the matter of “gossip” needs to be defined;
- THAT the gossip in question relates to Mr Malifa’s own words, “I was warned about you;
- THAT in order to defend myself, I need to know what that gossip was;
- THAT, as hearsay evidence is inadmissible in court, I require the full details of the gossip/warning(s) including the time, date, source, context and contents of all the warning(s) that Mr Malifa received and I request this from the Defendant;
- THAT all gossip/warnings Mr Malifa received prior to the point when he informed me that “[he] was warned about [me]” will be required for they will all have contributed, even subconsciously to Mr Malifa’s assessment of me;
- THAT I intend to examine the gossip/warning(s) including cross-examination of the person, people who issued the warning(s) for this is of course the basis of my defence;
- THAT Mr Malifa’s assessment of me was that I was a “smooth talking opportunist…” and that he “know[s] well [those] kind of people” and “has no time for [those kind of people]” in reference to me;
- THAT Mr Malifa’s assessment of me was and is a critical factor in guiding his subsequent actions, including:
- His refusal to honour his commercial agreement with me;
- His deliberate, or reckless ignorance of his own companies actions, or lack thereof despite my warning;
- His lack of due diligence on me until the evening of the day that a Matai (Tupai) of Fusi Safata informed him of the blog post, “Savea Sano Malifa – fooled by gossip”;
- His refusal to engage at all anywhere, anytime;
- Engaging ‘flakey’ Counsel who would initiate a defence based on provable lies and thinking that he/they could get away with it;
- Digging the hole he was in deeper and pushing through with a vexatious defamation lawsuit;
- THAT I accept the literal interpretation that I am “smooth talking” as defined specifically as being one who “has a way with words” and is “able to lead others” and put colloquially one who has “the gift of the gab”, well demonstrated with:
- the book THE TWO MILLION TALA PALAGI in which the entire defamation case is examined and commented upon extensively;
- my fearless prolific blogging;
- the many other materials I have written including;
- the three Palagi Perspective articles that the Defendant claims to have published;
- the other Palagi Perspective articles that the Defendant claims NOT to have published but has; and
- the five other Palagi Perspective articles that Mt Malifa referred to as “lousy” and failed to publish;
- THAT I accept the literal interpretation that I am an “opportunist” as defined specifically as being one who takes life’s opportunities with both hands and makes the most of them well demonstrated with the defence of a vexatious $2m defamation case that has been demonstrating and will continue to demonstrate my integrity, intellectual capability, credibility and even perhaps chutzpah to the Defendant, Mr Malifa and interested observers from within Samoa and offshore;
- THAT in reference to Clause 42 above, I deny any inference that the words “smooth talking” apply to any manipulative, selfish or untoward intent;
- THAT in reference to Clause 43 above, I deny any inference that the words “opportunist” apply to any selfish or untoward intent;
- THAT in consideration with Clauses 13 to 27 of this Statement of Defence and Counter-Counterclaim I am clinically ruthless and effective in exposing poor logic, deception and self-interest encapsulated best by the masthead of my website, www.dennis.co.nz, that contains a small text cryptic byline image, “walking the fine line between genius and insanity” a partial and humourous description of my personality AND by numerous references throughout my written work, including my blog, websites, books and eBooks;
If they’ve got half a brain they might to try get me on the insanity part. If they’ve got a fully working brain they will work out that I’m baiting them, just having fun with them like a cat plays with a rat before it nips its head off.
- THAT I claim that the Defendant’s inference that Mr Malifa “therefore lies to form the basis of the articles and stories published by the Defendant” COULD possibly be that case IF I lied;
- THAT the Claim referenced in Clause 47 above is however baseless and I put the Defendant to the proof thereof;
- THAT I claim that the aforementioned blog post “carries the imputation that the Defendant operate on lies and gossip” COULD possibly be that case IF I lied;
- THAT the Claim referenced in Clause 49 above is however baseless and I put the Defendant to the proof thereof;
- THAT in relation to Clause 16 in the Defendant’s Statement of Defence and Counterclaim, I put the Defendant to the proof in the matter that “the publication has caused much embarrassment, distress and inconvenience to the Defendant”;
I don’t know if they’ll be up to this in the slightest. I can’t see Sano spilling the beans now, even if there was any damage (which I seriously doubt BTW – it’s all Samoan puffery) because he will know full well by now that anything he says will be used against him. All I’ll do is say, “Nope – it’s all heresay and proof that you’re a sucker for gossip which proves my points!” And if he does bring forward witnesses for the crucifixion then so be it, Sano will have given me more people who are up for being called fools for believing the gossip. Maybe they might even disclose what the gossip was and who said it, which would give me incredibly incriminating evidence that . . . nah I could never be THAT lucky – they’re not that stupid, surely?
- THAT any person assessing my blog post who didn’t understand the proper context of the claimed defamatory words is in the same category as Mr Malifa and his Counsel, i.e. they have an attitude and/or a priori assumptions AND that unless proven to the contrary in this court, these must logically be as a result of themselves being “fooled by gossip”;
- THAT any newspaper that takes offence at the blog post “Savea Sano Malifa – fooled by gossip” and suffers $2m damages of embarrassment, distress and inconvenience is either fabricating the existence and/or extent of the damages OR is a very fragile News Media operation indeed;
- THAT the Plaintiff has no training in law, and has never worked in or near a legal office
- THAT the Plaintiff has only resided in Samoa since October 2009;
- THAT the Plaintiff commenced engagement with the Samoan legal systems contemporaneously with this Claim;
- THAT the Plaintiff’s Statement of Defence herewith is a lucid document prepared without input of any kind from any legal counsel;
- THAT in the absence of meaningful due diligence, and that in the light of all the above, the Defendant underestimated the Plaintiff, by an order of magnitude, in both material factors of credibility, but also intellectual capability and application of cold logic, demonstrating creativity, passion and commitment to defend the values of truth and justice that I believe in;
- THAT Mr Malifa undertook due diligence only after the blog post had been brought to his attention by Tupai;
- THAT with the above serious miscalculations of the Plaintiff and the abovementioned conduct this is rather the direct opposite of Mr Malifa’s assertion that he “know[s] well [those] kind of people” at the time that he made the claim;
- THAT I thus prove the entire basis of my defence, that I am credible because I spoke the truth with my assessment at the time that Mr Malifa was indeed “fooled by gossip”, is indeed a “goose” and has indeed acted “like a dick”.
Logic. Cold logic.
AND BY WAY OF COUNTER-COUNTERCLAIM the Plaintiff says:
- THAT the Counterclaim of defamation is a vexatious case, initiated without just cause in response to a simple commercial dispute – my initial Claim;
- THAT reasonable and professional legal advice would have been NOT to proceed with defamation in the first instance;
All I gotta do is find one other lawyer who thinks the same as me and then bring them in as witness and Rosella and her crazy Counterclaim is toast – spElled T-O-A-S-T. It would be a fight between two lawyers in the Supreme Court too about their own competence or otherwise. I told you to get the popcorn out!
You can see the headline on the front page of Samoa Observer, can’t you “Samoa Observer’s lawyer accused of incompetence in the Supreme Court!” – yeah right!
- THAT reasonable and professional legal advice would have been to withdraw or modify the Defendant’s Statement of Defence and Counterclaim upon the notification of errors of fact and logic issued in my written warning to Counsel for the Defendant;
- THAT reasonable and professional legal advice would have been to take the opportunity to secure a copy of my book THE TWO MILLION TALA PALAGI and to at least consider, if not actually, issuing a Right of Reply as I offered;
- THAT the multiple strategic errors including but not limited to a PR nightmare, and potential career-destroying exposure of the Defandant’s Editor in Chief, let alone the embarrassment resulting to the Samoan legal profession and thus Samoa as a whole, indicate a shallow, poorly thought-through case indicating that either the Defendant and Counsel for the Defendant are incompetent and/or as I claim herewith, that it was the Defendant’s intent to bully the Plaintiff using the legal process;
- THAT the Defendant had no intent to push through to trial;
- THAT the Defendant knew the case had no merit, but either received poor legal advice and proceeded against the Defendant’s better judgement OR that the Defendant instructed Counsel for the Defendant to proceed and “give it a go” regardless of her advice to the contrary;
- THAT a track record exists of malice and dishonesty toward the Plaintiff from the Defendant’s initial commercial engagement right through to the present, including but not limited to:
- A deliberate intent to defraud me of payment due, due to the fact that the Defendant’s staff failed to act in accordance with our agreement, but instead under Mr Malifa’s direct instruction, confirmed by Mr Malifa’s email in which he shows indignation over being caught out/held to account;
- Refusal to engage with me in any way, shape or form despite multiple efforts from me to do so and multiple opportunities to do so including an opportunity to engage in the morning at the Supreme Court of Samoa on 29 September 2015;
- Initiating (or at the very least permitting) a defence based on lies;
- This vexatious lawsuit;
- THAT a track record of malice and dishonesty exists towards the Plaintiff from Counsel for the Defendant from her initial engagement right through to the present, including but not limited to:
- Providing service of all documents by ambush at the last possible moment (twice AFTER the matter being called) contrary to court rules, professional conduct and normal human goodwill.
- Deception before the District Court Judge Roma in regards to her “forgetting” to appear the week before, yet still requiring another week, “to obtain instructions from her client”
- Proceeding with the defamation case knowing that there was provable dishonesty on a document that she had signed and previously submitted to the Courts of Samoa.
- THAT should the defamation case have succeeded at trial on the basis of lies and misrepresentation (the Defendant’s intent) that such a finding would have:
- unjustly destroyed my credibility in the industry of my professional endeavours with huge ramifications personally, professionally and financially;
- brought enormous shame and disgrace to the international independent blogging community; to the revisionist and truth movements, and to non-denominational Christians with incalculable damage long-term;
- THAT should judgement be entered against me in this defamation case based on lies and misrepresentation (the Defendant’s intent) and then later found out, that this scandal would have inflicted permanent and incalculable damage to the name and reputation of Samoa, it’s half a million or so residents both on-island and in the Samoan Diaspora; to the MSM internationally and to the investors, shareholders, staff and believers in the Defendant’s business;
- THAT the Defendant and Counsel have not only brought a frivolous, vexatious case before the court, but they have done so in a particularly deceptive and high-handed manner unbecoming of their trusted roles in a proud Samoan tradition and culture;
They have to prove that defamation has occurred and that they would naturally incurred loss. I know in New Zealand that they wouldn’t have to prove actual loss but it would help their possible payout chances. My case is a little different because there is no actual loss to me, quite the reverse, that I’ve leveraged the claim for huge kudos, exposure and hopefully credibility. BUT there COULD have been if I lose (or had lost). Those losses I look forward to quantifying at trial. If it gets to that stage, Samoa Observer will get a little surprise. They simply have no idea what I do outside these sleepy little islands in the South Pacific.
- THAT natural justice based on biblical guidelines determines that the penalty for dishonest action (bearing false testimony – and more) should be the equivalent penalty that would have been issued to an innocent party wrongly found guilty with the false witness and malice;
At trial we can go through the legal examples and argue the matter, no doubt Rosella (if she’s still allowed to practice by then and if she can keep her job with the old man) will argue this all at length, I look forward to it, but the simple point is that anyone watching these so-called leaders of society can get away with trying to destroy an innocent man’s life on false testimony with just a warning will surely not hesitate to try it on themselves the next time a Palagi wanders in and says something they don’t like online. The next thing, they’ll be passing laws to make it illegal to say bad things about Samoa . . . oh, whoopsie, didn’t the Samoa Tourism Authority do that a couple of years ago, and made the entire country a laughing stock around the world?
NO PERSONAL GAIN
- THAT the Plaintiff has engaged with Samoa constructively and resided in Samoa since October 2009;
- THAT the Plaintiff has chosen to reside in Samoa at great personal cost and has remained in Samoa despite extreme adversity, good opportunities elsewhere, including encouragement and lucrative inducements to relocate to the major business centres of the world;
- THAT the Plaintiff has effectively lived off capital during this time and does not seek to gain personally from the errors, foolishness, malice or greed of the Defendant or the Defendant’s Counsel;
- THAT an award of punitive damages however would be appropriate, just and fair of $2,000,000.00 (two million tala);
- THAT a payment in cash or kind to “WRITING THE WRONG” a Samoan registered Charitable Trust dedicated to encouraging the speaking of truth, in love, with sound logic and a good understanding of the law would:
- Produce a win-win scenario for both Defendant and Plaintiff;
- Be of enormous social benefit to Samoa with increased understanding of the legal systems; increased sound logic based on facts; and improved social interaction utilising fearless speaking of the truth;
- Make a strong statement that the Samoan legal system has other options aside from adversorial win/lose restitution;
- Provide the Defendant with a tax benefit and potentially the means to “save face”, rescuing themselves from certain losses resulting from their failure in court;
- Demonstrate the benefit of utilising Samoan cultural and biblical values in conflict resolution;
Writing the Wrong is a concept that I will offer to the Samoan publishing, journalism and educational communities as result of my experiences with the Samoan Court system (Sano and Rosella have helped a little to push it along) but briefly there is a lot of trouble here in Samoa with people fighting – physically yes, but also about money and things and land so on. The little people need help badly. It’s not the sort of help that money can fix for that will simply go to the rich fat expensive lawyers, it is the help that teaches, encourages, supports and loves people to do things the right way. I want the proceeds from my counter-Counterclaim to go to Writing the Wrong for several reasons – it’s a nice thing to do; I don’t need or want the money; it will stop the gossip-mongers from their incessant, “Oh he’s just a greedy Palagi come here to rip us all off” and believe it or not, if Sano wants to push through and lose, I want him to have a tax benefit of helping a Charitable Trust and the kudos for helping set it all up. It will be a little bit of light at the edge of his very dark cloud.
VALIDATION TO SEPARATE
- THAT because the entire contents of this Counter-Counterclaim have no causal relationship with the Defendant’s Statement of Defence it thus reinforces the point of my Motion for Separate Hearing of Claim and Counterclaim dated 21st October 2015;
WHEREFORE the Plaintiff seeks:
- a) DISMISSAL of the Counterclaim;
- b) JUDGMENT pursuant to the Counter-Counterclaim in the total sum of two million tala (ST$2,000,000.00) paid in cash (or in kind to the value of) to the WRITING THE WRONG Charitable Trust with enforcement suspended for a period of 30 days for the parties to establish an agreed nature of goods and services, timeframe and process for delivery;
- c) JUDGMENT pursuant to the original Claim in the total sum of three thousand five hundred and twenty tala ($3,520.00);
- d) COSTS relating to both the Claim and the Counter-Counterclaim; AND
- e) SUCH further relief as the Court deems just in the circumstances.
I finish with this in the event that all motions are heard together because their Counterclaim and my Counter counterclaim reference the original Claim only in passing, thus proving that the defamation suit is a totally separate matter from the initial civil case of breach of contract.
DATED at Apia this 3rd day of November 2015.
DENNIS A. SMITH
Bring it on Samoa Observer, Savea Sano Malifa and Rosella Viane Papalii. See you in court on the 26th March 2016.
If you pull out now, the world will know why you chickened out.
If you win, then good onya, take the win, you will have deserved it.
Lose in court though and the world will know that the above defence is based on fact, with cold logic applied, sufficient that a Judge has stamped my forehead with the word, “CREDIBLE”.
In the meantime Samoa Observer, I’m preparing the private prosecution under Section 139 I think it is of the Crimes Act for your good reading pleasure – THEFT which I will lodge in the Courts when I’ve saved up enough coins to get down to the courthouse again.
There’s a lot more on the way too, team, blogging and being held to account and all that stuff . . .