Marine Paints, Marine parts and House paints at trade prices direct to public – Servicing the marine industry since 1914

Court Transcript 17 10 2017 City of Kingston – Pompei Marine

City of Kingston vrs Leon Pompei


MR KNOWLES:  Your Honour, if it pleases the court, I appear for the plaintiff in this matter.

HIS HONOUR:  Thanks, Mr Knowles.

MR KNOWLES:  I don’t believe there’s been any appearance for the defendant.  I don’t know whether Your Honour wishes to have anybody called but obviously the matter has been ordered to proceed as an unopposed trial and that might explain why nobody has certainly come into the courtroom at this juncture.

HIS HONOUR:  Yes.  I might just out of caution have Mr Pompei called.  So, associate, please call Mr Pompei.

MR KNOWLES:  As Your Honour pleases.

HIS HONOUR:  Thanks.  All right, Mr Knowles, I’m in your hands.  How long is this matter going to take?

MR KNOWLES:  It was initially listed for three days.  It’s not going to take that long I can assure the court, and I think now it really depends to some extent, the estimate that was previously given as a result of the order that it be an unopposed trial no longer than a day, and it may be, subject to any queries that the court has, it may finish within half a day.

HIS HONOUR:  I do have quite a number of queries, Mr Knowles, I’ll tell you upfront, and in a sense the fact that there is no contradictor here makes the matter more problematic, not less.  I’ve read the material and there are a number of quite difficult issues raised by this proceeding and, frankly, it is a case which cries out for a contradictor.  So the fact is we are where we are but there are a number of matters.

           I’m not going to make orders, Mr Knowles, unless I am 100 per cent satisfied that there is a sound basis for making those orders, whether the case is opposed or unopposed.  That’s just a given.

MR KNOWLES:  We are in furious agreement with that, Your Honour, as a model litigant.

HIS HONOUR:  Perhaps it might be convenient at the outset if I just raise with you a couple of matters which are exercising my mind and you can take those matters into account.

MR KNOWLES:  Yes, if Your Honour pleases.

HIS HONOUR:  So the pleading that you move on is the amended statement of claim which is in the court book, is that so?

MR KNOWLES:  Yes, Your Honour.  It’s at p.1 in fact of the court book.

HIS HONOUR:  As I read your pleading your cause of action is in trespass, is that so?

MR KNOWLES:  Yes, but it’s essentially that the person is, yes, a trespasser as pleaded in paragraph 4.

HIS HONOUR:  But that of course is in itself problematic because in order to found an action for trespass your client has to be in possession and, as I understand the position, your client has at no relevant point in time been in possession of the land.  Your cause of action is in fact a claim for ejectment, not trespass.

MR KNOWLES:  That is a better formulated way of putting it indeed, Your Honour.

HIS HONOUR:  On the facts as I understand them you do not have a cause of action in trespass, you have a cause of action potentially in ejectment, and one, I’m troubled by the fact that that’s not been pleaded in terms.  What’s been pleaded is, if anything, a claim in trespass.  So you haven’t pleaded a cause of action in ejectment.  In order for you to sustain an action for ejectment you must establish a right of immediate possession of the land.

           Your claim turns on the strength of your own title, not any deficiencies in the title of Mr Pompei.  The claim will fail if there is a right of possession in a third party.  That raises squarely the status of the land as Crown land and the rights such as they may be conferred upon your client, assuming in its favour, that it can establish that it is the committee of management of the land.


HIS HONOUR:  Some of the issues which have arisen there is, if you can establish that you are a committee of management of the land does that confer upon you a right of immediate possession of the land or, for example, are any dealings with the land by your client subject to a requirement for ministerial approval?  If so does that confer upon your client sufficient standing to maintain a claim for ejectment?  These are all very difficult and engaging issues, none of which are properly ventilated by your pleading.

MR KNOWLES:  Perhaps if I can just say, Your Honour, in relation to the pleading certainly there’s been a demand to vacate the premises and in terms of the committee of management powers it is submitted that those powers of control and management are sufficient to sound in the cause of action to which Your Honour has referred.

HIS HONOUR:  I understand you’d say that but you obviously would need to satisfy me of that.

MR KNOWLES:  Yes, I accept that.

HIS HONOUR:  The problem I have, Mr Knowles, frankly is that none of this has been pleaded.  I don’t know the background to this matter.  I’ve seen the orders which were made by Associate Justice Mukhtar and I can only assume, and I’m sure it’s the case, that His Honour would not have made such serious orders unless there was a very sound basis for doing so.


HIS HONOUR:  It would appear there’s been a great deal of attention focused upon the – I’m sorry about that, I don’t know why the lights aren’t working.  You probably need to do some star jumps.  There seems to have been a great deal of attention I assume focused on the deficiencies in the way in which the defendant has conducted this litigation, but perhaps no one has actually, in the course of those deficiencies no one has ever actually engaged with your pleading.  But the first point obviously, a properly resourced, properly engaged defendant would have been to take issue with your pleading.

MR KNOWLES:  He has had representation at various stages previously.  The defence to the amended statement of claim which was struck out, as Your Honour will have seen, pursuant to the orders made by Associate Justice Mukhtar had been prepared by legal representatives.  He also had the assistance of legal representatives in more recent times as well, but despite – – –

HIS HONOUR:  I understand that.  Well, we are where we are, Mr Knowles, and frankly I’m troubled by being in this position of hearing an unopposed trial in circumstances where there are some fundamental issues which I’m raising with you.

MR KNOWLES:  I can say that obviously to some extent those issues have been addressed in the outline of submissions and I’d be proposing to take the court through those submissions in due course.  We also have witnesses here who are ready to give evidence to assist the court as needs be, including the expert, Mr Macy.

HIS HONOUR:  All right.  Mr Knowles, ultimately it’s a matter for you.  I’m putting you squarely on notice of some fairly fundamental concerns I’ve got with your pleaded case.


HIS HONOUR:  If you’re telling me that you are ready to proceed and you’re going to proceed and run a case and that’s what you want to do please don’t be heard in another place to complain that the case has been decided by the judge on a different basis than the way it was pleaded.

MR KNOWLES:  Yes, I understand.

HIS HONOUR:  Because I’m raising with you your pleaded case.  If I had a red pen in my hand I’d be putting a line through your one cause of action pleaded, all right?  So if you wish to proceed with the case you are squarely on notice that when this case – if a judgment is delivered I will be addressing the issue of whether or not your client has a sound basis for a cause of action in ejectment, which is not what you have pleaded.  If you as counsel are confident that you can make good a case other than the one that you’ve actually pleaded then in the unusual circumstances I will let you proceed.  Do you want five minutes to consider your position, Mr Knowles?

MR KNOWLES:  That would be useful, Your Honour, if I might have that indulgence.

HIS HONOUR:  You can have ten minutes, all right, to consider your position.  I’ll be candid with you whilst I’m being candid, Mr Knowles.  The other thing that troubles me is that the orders which were made by Associate Justice Mukhtar were still within the appeal period.  Those orders could be appealed by Mr Pompei.  I think he’s got 28 or 30 days to appeal an order of an associate judge.  It has occurred to me, what’s the position if we go through this full hearing and then on the last day of the appeal period an appeal is lodged against those orders?

MR KNOWLES:  I’d have to check the relevant appeal, Your Honour.

HIS HONOUR:  I think it’s 28 days.  That’s something else that is something of a concern.  But the more fundamental issue, Mr Knowles, is the one I’m raising with you, and that is, I’m putting you squarely on notice you don’t have a claim in trespass, that claim is hopeless and doomed to fail.  If you’ve got a claim in ejectment you’re going to have to go through a series of hoops.  If you are confident that you’re ready to do that then we can proceed.  But if you’re not you might want to make an application.  Anyway, I’ll adjourn until 11 o’clock.

MR KNOWLES:  If Your Honour pleases.

      (Short adjournment.)

HIS HONOUR:  Yes, Mr Knowles.

MR KNOWLES:  Thank you, Your Honour, for that time and apologies for going slightly past the 11 o’clock timeframe contemplated.  In light of the issues that Your Honour has raised, particularly the issue in respect of appeal periods, I’ve sought some instructions and I’m instructed to seek from the court an adjournment of the date for the hearing of the trial on the basis that it would be appropriate to have that hearing occur at some time after any appeal period in respect of the orders made on 5 October had expired.  That’s the first issue that arises out of Your Honour’s comments before the break.


MR KNOWLES:  The second is in relation to the pleadings.  Given the matters identified by Your Honour my client would seek leave to further amend the pleading to plead the ejectment cause of action and would seek leave to file and serve a further amended statement of claim in those terms within a period of time prior to the matter coming back to the court.

HIS HONOUR:  All right.

MR KNOWLES:  That then obviously begs the question as to what response might be permissible from the defendant in those circumstances.  Obviously the defence was struck out not because of the substance of the claims that were made in it, not because of the substance of the claims that appeared in the pleadings more generally, but rather because of persistent failures to comply with procedural matters.  So it was a general order and arguably on that basis there is no entitlement even for the defendant to plead a defence in respect of the new cause of action.

           But we don’t necessarily press that, Your Honour.  We are content for a defence to be pleaded if the court thinks that that is appropriate in all the circumstances given the change of the substantive nature of the pleading that would be advanced.

HIS HONOUR:  Yes.  I think, Mr Knowles, what I would be minded to do would be to make an order for the plaintiff to file and serve the further amended statement of claim.  I won’t make any order, I’m not presently minded to make any order that the defendant file a defence to that further amended statement of claim.  If the defendant wishes to agitate a right to do so then that would be a matter for the defendant to seek to so agitate such a right.

           As things presently stand there is an order of the court in place that the trial is to proceed unopposed and absent that order being set aside the existence of that order would seem to be irreconcilable with an order being made for the defendant to file a defence to a further pleading.

MR KNOWLES:  I respectfully agree with that, Your Honour.

HIS HONOUR:  The defendant has his rights, he has a right of appeal to seek to set aside that order, and my present thinking is that if he wishes to have that order set aside then the appropriate vehicle to do that is by way of an appeal.  Mr Knowles, you’ve heard some of the issues that I’ve raised in the exchange with you around the action for ejectment and they do seem to be – and it may well be that I’m jumping at shadows, but I did look at the provision of the Crown Land Reserves Act and I saw the issues around, for instance, in s.17A, the power to grant a licence.

           I saw the provisions in relation to the requirement for ministerial approval in writing and either in your pleadings or by the time the matter comes back on for hearing you will need to give very careful attention as to the basis upon which the council contends that it has an immediate right of possession and the extent to which, if at all, that right is qualified.

            Because if it is qualified the question then – well, to put it bluntly, Mr Knowles, the question is whether or not it’s the Crown in the right of the State of Victoria which actually has standing to bring an action for ejectment on the basis that this, as I understand it, is Crown land.  That is the issue which is front and centre in my mind.


HIS HONOUR:  Does your standing as the committee of management confer upon you title to maintain this cause of action?  And that strikes me as a very nuanced question of law, Mr Knowles, and you will need to give very careful attention to how you make good that proposition.  It may be, and I’ll put it no higher, that this falls between the cracks, it may be.

MR KNOWLES:  Perhaps one of the things that I’d wish to do, Your Honour, was to deal with any additional issues the court might have before any orders are made today, and certainly in relation to the matter Your Honour has just raised about the granting of a licence pursuant to s.17A of the Crown Land Reserves Act.  As Your Honour will have seen in the pleading there is no licence.  There hasn’t been a licence since the 13th, well, since before 13 April 2016.  So there’s no licence, lease or other right of occupancy for Mr Pompei or any person or entity associated with him to occupy the land for private purposes.

HIS HONOUR:  Yes, I understand that.

MR KNOWLES:  Then one turns to the matter that Your Honour raises vis-à-vis standing, and in that regard obviously the committee of management powers, as Your Honour will have seen from the submissions advanced by council are, in council’s submission, broad.  They relate to management of the land but not only that, they also relate to control of the land such that the submission goes if a person is using the land in a way that is antithetical to the public purposes permanent reservation of the land, and they’re using it in that way without any lawful permission by way of licence, lease or otherwise then part of the council’s powers as committee of management is to take action in a court to prevent that and to have them ejected from the land if they’re doing that in an unauthorised manner.

HIS HONOUR:  The question, Mr Knowles, is whether or not those rights of management fall short of a right of possession.  If the position is, on a proper construction of the statutory scheme, that those management rights fall short of an unqualified right of possession is that sufficient to maintain an action in ejectment?

MR KNOWLES:  As I say, Your Honour, they are management – – –

HIS HONOUR:  I’ll be greatly assisted if you can find any authority.  I’ll be wanting you to address me specifically on that issue, Mr Knowles.  I’ll be asking you to take me to the authorities on this issue.  It’s a fairly somewhat obscure area of law, Mr Knowles.

MR KNOWLES:  Yes.  There’s so far, on my understanding, very little authority on this issue.  As I say, the powers are greater than mere management powers.  They are control powers according to the committee of management powers that are referred to.

HIS HONOUR:  The granting of a licence is the flipside of a right of possession.  Start from that premise, all right?


HIS HONOUR:  But it appears to me that the powers to grant a licence are not unqualified.  You need ministerial approval in writing.  So if that’s so, and I’m not expressing any concluded view at all, I’m raising it as an issue for your consideration.  If the right to grant a licence is qualified by an express requirement for ministerial approval that raises a question as to whether or not any right of possession which the council has falls short of that which would sustain a claim in ejectment.  Which raises the other issue.  So this is Crown land, correct?

MR KNOWLES:  It is, Your Honour.

HIS HONOUR:  Your contention is that the land that is currently occupied by the defendant is on Crown land.

MR KNOWLES:  That’s correct.

HIS HONOUR:  Does that not mean that, again, the question, does that not mean that the Crown would in fact have a better title to the land than the council?  You don’t need to answer these questions.  I’m just throwing them at you.

MR KNOWLES:  So these are matters that we’ll have to consider but I’m assisted by Your Honour in that regard.Â

HIS HONOUR:  Basically Fleming observes at paragraph 390 of the tenth edition that if it can be established that a third party has got a better right to title then you lose.  If the Crown has a better right, has a stronger title then that’s problematic.

MR KNOWLES:  There are alternative ways in which the case can be put, and this is something that will need to be considered in the formulation of any further amended statement of claim.  It’s something that, in my submission, it’s arguably contemplated in the pleading as it stands, but we’d rather have things better clarified.  But certainly the statutory provisions provide for, as I say, powers of control and the ability to exercise powers and have authority to do all such acts, matters and things as are necessary for or incidental to carrying into effect and enforcing those things.

           So arguably that confers on the council as committee of management the ability to bring proceedings of this nature to ensure that if a person is engaging in activities that are contrary to the purposes of the public reservation and contrary without any permission in the nature of a licence then the council can act to have them removed from the land by bringing a proceeding of this nature.

HIS HONOUR:  Mr Knowles, the first thing I did when I looked at your pleading was to ask myself, well, what’s the source of the court’s power to grant you the relief that you are seeking?  To date I’ve been of the understanding that you are not relying upon any statutory cause of action.


HIS HONOUR:  You have simply pleaded a tort, albeit in the somewhat befuddled way, your claim is in tort, the tort being an action in ejectment or, in its modern formulation, for recovery of possession of land.  But your claim is in tort and that’s the basis upon which you enliven the court’s powers for the relief you seek in your pleading.


HIS HONOUR:  If you’re going to rely on a statutory head of power then obviously you would need to articulate that very carefully.  But plainly, Mr Knowles, I think you will have gathered that I’m somewhat troubled about this matter proceeding unopposed.  The further you depart from the pleaded case which was extant at the time the orders were made by Associate Justice Mukhtar the more troubled I’m going to be frankly.

MR KNOWLES:  I should just seek to allay Your Honour’s fears there.  I’m not pleading a statutory cause of action.  I’m just simply going to the question of council as committee of management having a power to bring the proceeding of the nature that Your Honour refers to, that’s all.  It is a proper plaintiff to bring this proceeding as distinct from the Crown more generally.

            That’s all I’m dealing with when I say that the statutory provisions relating to powers of committees of management, particularly, say s.15 of the Crown Land Reserves Act, does specifically refer to the committee of management taking legal proceedings for the purposes aforesaid, that is, the purposes that are referred to earlier.

           For instance one of those is, “Shall manage, improve, maintain and control the land for the purposes for which it is reserved.”  So that’s the critical issue here, that if the land, a committee of management has this relationship with the reserved Crown land, that is, it manages the land and controls it for the purposes for which it was reserved.

           In this case the land was reserved for public purposes in terms of the permanent reservation and for a public park in terms of the temporary reservation.  So they are the purposes for which the council as committee of management can bring proceedings if, I would say, there is a person occupying the land without authority and engaging in conduct which is contrary to those purposes.

           So conducting a private business for instance without authority would permit the council to bring the proceeding in the nature of what is contemplated by way of a proceeding for ejectment.

HIS HONOUR:  What if anything do you say turns on the fact that – because as I understand it for decades the Pompei family have conducted a business from this land and they’ve done so with the approval of the Kingston City Council and its predecessors?

MR KNOWLES:  Yes.  Well, they’ve had licences in more recent times, and I would have to seek instructions about prior to those times the nature of any permission or authority that was granted, whether it was a formal licence or something more implied.  But certainly in more recent times there have been licences that have been granted in accordance with the provisions of the Crown Land Reserves Act.

           Essentially what brought matters to a head is that the most recent period of time where there was a negotiation about a licence Mr Pompei wasn’t amenable to entering into that licence, and after that occurred there was a demand for him to vacate the property.  That’s really the nub of it.

HIS HONOUR:  In the court book is there a copy of the licence which was in existence up until 2012, in the court book?

MR KNOWLES:  Pardon, Your Honour, I’m sorry I missed that last bit?

HIS HONOUR:  Is there a copy of the licence that was in existence up until 2012 in the court book?

MR KNOWLES:  I understand that there isn’t, and that licence was one which, in terms of the permission that was granted the other party wasn’t in fact Mr Pompei at that time, it was his late mother.

HIS HONOUR:  The licence was with his mother?


HIS HONOUR:  Yes, very well.  How long do you want to have in order to file a further amended statement of claim, Mr Knowles?  Perhaps we’ll work backwards.  I would be able to hear this matter on 4 December with a possibility of the 5th also being available, but I’m then committed.  I could hear the case on 11 December.  I have time available in that week apart from Friday 15 December.  So I’m keen for the matter to be heard obviously before the year is out.  So those are the two days I’m offering you.  So there’s 4 December and possibly the 5th and there’s the week beginning 11 December.

MR KNOWLES:  Yes, we’re content with either of those dates with perhaps a slight preference for the week commencing the 11th, Your Honour, either of those dates.

HIS HONOUR:  All right, that’s convenient.

MR KNOWLES:  My instructor is just checking the availability of, in particular, Mr Macy, the expert for the council.

HIS HONOUR:  Can you explain to me how does the expert evidence come into play in this case?

MR KNOWLES:  In particular understanding how the reservations work.  I understand that might be a question of mixed fact and law, but also being able to assist the court with walking through some of the historical documents and the historical plans and identifying areas on those plans that relate to particular reservations or committee of management appointments.  That’s really the gist of it.

           Mr Macy has extensive experience and expertise in the Surveyor General’s Department in the past and has acted in a consultancy role for some years in respect of the proper classification of land.  So he’s a person who is very familiar with the files, the plans, the gazettals and so on.  I understand to some extent they are legal matters but also there are questions that arise that involve some broader expertise.

HIS HONOUR:  I see.  So how many other witnesses are you proposing to call?  So you’ve got Mr Macy, and any other witnesses?

MR KNOWLES:  The only other two deponents, Your Honour, who are relevant to the 2016 proceeding, obviously Your Honour will have seen the 2017 proceeding about the closure of the boat ramp was dismissed, and there was an expert separately for that proceeding who no longer need be called.  The only other witnesses in respect of the 2016 proceeding are a Mr Daniel Freyer, who is a relevant council officer, and a Mr Liam Grigg from Maddocks Lawyers who can depose to having obtained authorised versions of particular documents.

           In relation to that it may be that his evidence to some extent is highly uncontroversial.  He is exhibiting to his affidavit documents in the nature of gazettals for instance which could otherwise be admitted into evidence under the Evidence Act, but there are some other documents such as plans which he deposes to having obtained from the relevant departmental files concerned with this particular area.

HIS HONOUR:  So the report of Mr Macy, that’s in the court book is it?

MR KNOWLES:  Yes.  So the two reports of Mr Macy are in the court book from p.750 through to 816 inclusive.  He made a short supplementary report on 17 August.  He otherwise prepared his principal report which is dated 1 August.

HIS HONOUR:  All right.  I think I’ll set the matter down for two days, Mr Knowles.

MR KNOWLES:  If Your Honour pleases.

HIS HONOUR:  If it can be finished in one, well, so be it.  On that basis the trial starting on 11 December.  Are you able to file an amended pleading within two weeks?

MR KNOWLES:  Given the hearing date if we could have three weeks that would be greatly appreciated, Your Honour.

HIS HONOUR:  All right.  Three weeks from today is Cup Day so I’ll make it 8 November.  So the first order will be the plaintiff have leave to file and serve a further amended statement of claim by 4 pm on 8 November.  I would be assisted, Mr Knowles, if you can file an amended outline of submissions.  I won’t make an order for that but my expectation is that you would be filing an outline of submissions in advance of the hearing and preferably several days in advance of the hearing.

           I won’t make an order but you’re hearing what I’m saying.  I’ll be assisted if you do that.  Otherwise the only other orders that I’ll make will be that the further hearing of this matter is adjourned until 10.30 am on 11 December 2017.  I’ll reserve the costs of today’s hearing.  There are no further orders are there?

MR KNOWLES:  My instructor has just raised one issue.  It’s not really to do with the orders, but Your Honour has mentioned having some issues with various matters in the proceeding.  We obviously wouldn’t want to go away without the benefit of knowing if there are any other issues that Your Honour had that we ought to consider in the interim.

HIS HONOUR:  I think I’ve given you quite a few, Mr Knowles, if I may say so.

MR KNOWLES:  Undoubtedly so, Your Honour, but perhaps we’re just gluttons for it.

HIS HONOUR:  There are no other issues which are currently exercising my mind but, if I may say so, I think the points that have been raised are very substantive points, Mr Knowles.  It’s something of a labyrinth, the regulatory history in relation to the water, the land, the road and the Dandenong Valley Authority and the like.  It would be very helpful if you would actually provide me with a chronology of events which lined up the dates with the relevant instruments which brought about changes in control.

           So when you file your outline of submissions you should file at the same time a chronology, and I would be greatly assisted also if I could have in one folder, if you could provide a folder which contains all of the relevant government gazettes and all of the relevant statutory provisions which you say confer upon you the requisite title to bring the proceeding.


HIS HONOUR:  All right.  I have nothing else that I want to burden you with, Mr Knowles.

MR KNOWLES:  Thank you, Your Honour.

HIS HONOUR:  Thank you.  The court will adjourn until 11 December at 10.30 am.

MR KNOWLES:  If the court pleases.