This post is an initial ‘whack’ at reporting my observations of the politics within the Samoan legal system. Judges and lawyers with conflicts of interest, bias and personalisation of business matters in a small fiercely proud island state are par for the course it seems. Knowing how corruption pervades Samoa in other strands of Samoan society, I’ve been expecting, perhaps even dreading revelations of the same within the Samoan legal system. My take is that indeed it’s not much different.
First-up this is not intended as a hit-piece and I HAVE observed justice being served in Samoa, but my observations are condemnatory to a degree. Again, if I have anything wrong or you wish to add, connect to me via my Tipline or add a comment below.
Over the last year or so I’ve been spending increasing amounts of time and energy within the Samoan legal system. After five years of absorbing the blows, in mid 2015 I started taking those who have variously lied to me and ripped me off to court. Triggered by a lady who bought my car, only paid part of it then wouldn’t return it when she ran out of money (except I return her all that she had paid) I’ve commenced a series of cases that have put me in court for various things pretty much weekly.
I started in the District Court using templates supplied by the court staff and have variously experienced delays, adjournments, counter-claims and all manner of delays and legal tricks. I’ve been told off for not wearing a tie, for wearing an ula fala (Samoan necklace) sitting in the wrong place, standing when I should be sitting and visa versa and for not completing documents in the right manner or in enough detail or with too much detail. I’ve got or had cases before the District Court and the Supreme Court and Mediation with one of them a $2m defamation case.
I’m starting to get to know the names, personalities and idiosyncrasies of the various judges as well as a whole bunch of the court staff, from the girls at the counter through the court registrars including the new one, right through to the recently retired Registrar who has white snowy hair and has been in the courts for 39 years! I call him the “old man” as a sign of respect and because I haven’t yet learned his Samoan name – it takes me a big effort to do that.
In terms of operations I’d consider the entire court processes to be reasonable, although speed or efficiency wouldn’t be their middle name. They’ve ‘lost’ critical documents more than once on me, and requests can take forever but the core systems seem to work well and the staff are generally helpful.
CONFLICTS OF INTEREST
But all is not well as I watched a senior judge preside over a case where he had the same surname of one of the parties. Related? Yes, as I found out later, and not only that but the person trying to get justice explained that they didn’t hold out much hope, “Because I know he doesn’t like me”. Oops! Asking why that might be, I got the reply, “Because I tell him like it is!” Double oops!
I had a case where I charged a lawyer for lying in court – a private prosecution too. He didn’t stand down when he was representing a client I was suing and tred to defend his right to represent her even though I’m charging him with a crime of dishonesty. As the visitors said in them olden days, “These Romans are CRAY!”
It’s difficult when you live, work and play in a small country because there is always a conflict of interest when you are seemingly related to or know everyone BUT there are clear-cut cases where a Conflict of Interest exists.
COURT OF APPEAL
This is all very well but I witnessed an extraordinary sequence of events this week that involved a Court of Appeal Judge imported from New Zealand, Robert Fisher, QC. He’s on the Supreme Court circuit of Samoa, Tuvalu and the Cooks** – most likely a kind of a juicy junket. I was next door in the Supreme Court and popped in to listen to and observe a Court of Appeal session in which he presided, some issues that Olinda Woodroffe was involved in.
The most striking things as an outsider (to both the cases and the legal system) were his:
- Decided absence of humility;
- Disrespect afforded the lawyer; and
- Apparent lack of homework.
Now before I go pinging people, prior to this Appeals Court hearing I’ve seen Olinda in court a few times, met her briefly enough to say, “Hello! How are you? We must catch up sometime.” – that sort of thing and I wouldn’t accuse her of being short of causing an argument. She’s a fighter and if she believes in something she’s not the one to stand aside and let it go. So if ever there was a lawyer that could get up the noses of a poofy old judge, then she would be it. I’ve seen it happen with her too, BTW, so arguing with a judge seems second nature to her!
But this time it was different and I sat there scratching my head at what “beef” this judge had. As I said I was new to the case being tried and it was a complex one going back 13 years but Judge Fisher QC really was quite rude and I could see that Olinda was holding back her indignation. That a judge could interrupt a lawyer in mid stride didn’t seem normal or ethical to me. That he did it many times grated with me. It wasn’t all one way in the sense that the Judge was against her at every turn (he acknowledged some things and did condescendingly side with her on one matter) but I got the impression that there was an a priori assumption of the case and that Olinda was targeted for special treatment.
It didn’t seem to me that Fisher knew the case that thoroughly either. The two Samoan judges either side of him seemed to know and understand the issues and case history much better. That’s not the sort of conduct that gives confidence that justice will prevail.
EXTREME NEPOTISM i.e. CORRUPTION
But the real kicker for me was that after the case, I got asking around about the history and found out that the thirteen years of delayed justice was because of one individual (the Chief Justice) who had bounced it back and forth. Digging deeper I found out that they were all part of the same political party, HRPP, and the original fraudster was, yup you guessed it, umm, how can I say this politely, rather high up in politics at the time! A likely cover-up was now exposed as far as I saw it.
Along with all my other observations, I now had seen enough to ‘get the picture’ – basically that the same forces of power, greed, self-interest and what the Palagi call corruption (but what I prefer to label “extreme nepotism”) affect the Samoan legal system.
ROBERT FISHER, QC
I return to the Court of Appeal judge Fisher, specifically. He’s apparently got a good legal mind but has now moved off the bench in New Zealand. He had a rough ride in the early part of the 2000’s when he got pinged for watching porn on court computers. He got his fingers rapped for that, apologised and said he wouldn’t do it again, sort of thing. The Chief Justice at the time let him get away with it basically. Even though political power and the judiciary should in theory be separated, Helen Clark, the Prime Minister of New Zealand at the time tried to muscle him out by stating that people in positions of power should be more accountable . . . hint, hint . . . step aside buddy!
He moved into arbitration and mediation shortly after that and I think the shame of being found out (it took a while to become public) or the fear of being accused of being a dirty old man while on the bench may have affected his career adversely. Ninety minutes of titillation in exchange for a “distinguished career” is not a good deal if you ask me – sounds like the sort of thing that happened in the Garden of Eden eh? Same old, same old!
He’s billed as a smart cookie with a good track record but it’s not that clean or simple. He got hauled in by a New Zealand Minister to “peer-review” the Binnie Report*** into David Bain which he overhauled finding serious errors throughout. On the surface this appeared to validate the Minister’s call, that Binnie got it wrong and that’s the message that has stuck. What most people haven’t done as far as I can see is analyse Binnie’s response to Fisher’s damning analysis. I have and it’s pretty solid rebuttal of the criticism, so much so that it makes you wonder if Fisher was called in as a hit-man to get the Minister of the time what she wanted.
Holding that thought in mind then, I continue with my investigations. This week, following the Court of Appeal hearing I mention, the “We should catch up sometime” became reality and I met with Olinda Woodroffe and her team. We discussed her case, her web presence and marketing strategy (of course) and then I was free to ask questions of her and her team. I dived straight into the big one . . . her disqualification as a lawyer in Samoa.
Olinda has not made friends in the Law Society. She’s been denied a practice certificate and there’s a big fight going on. Olinda says she’s a senior lawyer with experience; high profile cases and a major commitment to Samoan legal profession to boot. She claims to be out to defend and she’s a fighter standing up for the little people. The Law Society says that she doesn’t comply, and it’s her fault if she doesn’t comply. You can tell that there’s a little bit of the personal in there too judging by the intensity of the scrap. There’s a ‘history’ (can I say it) between secretary of the Law Society Rosella Viane Papalii and Olinda sufficient that the claws come out pretty quickly.
So my first question was, “Can I see a copy of the charges, or the termination letter which has the grounds for termination or whatever document you have?”
Laughter didn’t quite fill the room but it probably SHOULD have. The reason was that according to Olinda’s team there IS no record! There IS no document that Olinda has received that details what she should do, or must do to rectify the matter and retain her status as a practicing lawyer! NOTHING!
“That Dennis, is THE problem!” I was told. “They refer back to a conversation that was had in Sydney some time ago but there is no document, nothing formal!”
Holy Schmoley . . . this was insane! Here is the Samoan Law Society that has a legal responsibility for the entire Samoan legal profession kicking off arguably Samoa’s top high-profile lawyer in what looks clearly to be a personal vendetta with NO document – talk about Mickey Mouse!
THE ‘PHANTOM’ OFFICE
On the way in to speak with her I was casually just pointed out their office (in a downstairs are of her house) and I knew from other times that they claimed she never had an office. I asked if I could take a photo of it. Sure they said, so I did. I asked the girl (Ame Tanielu) how long the office had been there and she said as long as I’ve been here – okay so I knew that was years. I asked others on the team how long the office had been there . . . “20 years or more maybe?”
In the time I was there we met in a large room with couches and chairs and there were a couple of lawyers present plus Ame. This seemed to be the location for private meetings for later when a client arrived we relocated down to the lower level to rooms beside the admin office – again it was decked out in couches and we had a meeting with four of us, and could have easily fitted in the same again quite comfortably. Renovations were going on and it appeared to me that they had been going on for months. I really don’t know what the fuss could be all about her not having an office!
BLACKMAIL & SELF INTEREST
So I then dived into the Court of Appeal hearing and this got scary . . . Let’s set the scene here:
- Olinda Woodroffe, Samoa’s top lawyer was struck off over what appeared to be a personal thing
- A big-shot Court of Appeal judge is flown up from New Zealand to sit over her Appeal against her dismissal so that she can represent her clients to be heard before him immediately following
- That Olinda is stroppy with the Law Society and they appear to have a dysfunctional relationship with her and that the Judge is on a sweet little number despite a few pornography indiscretions don’t get in the way too much
Then it came out . . . “IF you don’t agree with the Law Society thing then you won’t be able to represent your clients.”
To me, that’s blackmail, from a QC in a foreign country as a guest.
I’ve pondered long and hard over this one, why a judge would do such a thing. Only Fisher knows but perhaps it’s because he’s in cahoots with the Law Society people? I’ve seen it with my own eyes – bias – and I know from personal experience that the secretary of the Law Society is not averse to telling a porky.
Samoa should never allow Fisher back into this country unless he pays to come (not the other way round). Samoa deserves MUCH more than this and the Law Society needs a big boot up the backside for bringing so much shame and dishonour to the profession. In a conflict situation you need to DIFFUSE the personal and work to resolve it, and if you want to go down the legal avenues DO IT PROPERLY, and that means written warnings with clear deliverables justified by the law. This idea that “we had a conversation [ways back when] so you can’t practice law here anymore”, is just pathetic, petulant, childish nonsense.
In one of his opinion pieces Fisher discusses the significance of the adversorial approach (vs the inquisitive approach) PDF. I found it interesting reading and I like his words BTW, especially his advice in regards to conflicts of interest in relation to the various strands of the profession. After talking about the various competing agendas he concludes with this advice:
. . . we are all hopelessly mired in selfinterest. All we can do is try to evaluate the idea rather than its source
In my eyes Mr Fisher (and all other lawyers who are unprofessional or lie) you owe the people of Samoa an apology. May I [respectfully] suggest that you take note of your own advice above and indeed put your selfinterest aside and look at the facts [in your words the “idea”] surrounding Olinda Woodfoffe’s termination and her fight to be able to practice law? I spoke to others in the courtroom watching your ‘show’ and your conduct this week has caused serious offence.
While I am not a lawyer, I would posit that Olinda would be perfectly in her rights to complain about the condescending way that you dealt with her in the Court of Appeal first by attempting to force her to capitulate on what is clearly a petty personal matter with the Law Society and then secondly with an incompletely prepared and arrogant conduct while on the bench. And sir, this has nothing to do with Olinda’s legendary fiery, provocative approach either – it wasn’t on display before you in the slightest as far as I observed.
In due course, I hope to interview Olinda Woodroffe and I look forward to being able to put her side of the story forward.
So are there politics in Samoan legal system? You betcha! My hunch too is that this is only the tip of the iceberg, if that.
** Kiribati too I think
PUBLICATION NOTE: This post was held back from publication on Woodroffe Law’s request, even though it is my words and third party commentary and I didn’t have to. I complied with their request because it was reasonable and asked respectfully; they had extended goodwill to me to discuss their matters and the content of this post and the grounds for delay in publication were perfectly reasonable – that they had a difficult legal/business situation with the Samoan Law Society. They did not want to cause undue troubles in a small country such as Samoa and potentially cause difficulties for their clients. Yesterday though, I attended a Supreme Court callover on another matter, where I heard the Chief Justice accept Olinda’s right to conduct law in Samoa in person and confirmed with her that these matters are now resolved. I therefore publish this today Friday 5th August 2016 now and still hope to interview Olinda Woodroffe in greater depth.