RWT v BZX[2016] QDC 246

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal under s. 164 of the Domestic Violence and Family Protection Act 2012 (the DVFP Act). The parties are husband and wife. He is the appellant. Each applied for a protection order against the other, making serious allegations which were denied. On 1 April 2016, the learned magistrate at Richlands allowed the respondent’s application, making a protection order against the appellant, dismissed his application and ordered him to pay costs of his application. He appeals against the making of the protection order against him and the costs order.

2. [2]
   The appeal is by way of rehearing – I respectfully adopt the analysis of McGill SC DCJ in GKE v EUT [2014] QDC 248 at [2-3] on this point. Section 168 of the DVFP Act provides that an appeal must be decided on the evidence and proceedings before the court that made the decision being appealed. However, the appellate court may order that the appeal be “heard afresh, in whole or in part”. I declined an application to hear the appeal afresh in part by receiving a further affidavit of the appellant. So, the relevant materials are the applications of the appellant and respondent filed in the Magistrates Court on 8 December 2015 and 11 December 2015 respectively; the affidavits of the appellant and respondent and an affidavit of a friend of the respondent; the transcript of the hearing and the learned magistrate’s reason for decision; the exhibits – Queensland Police Service records relating to a complaint made by their child that the respondent assaulted him 18 November 2015; Bank Statements of an account held jointly by the parties.

3. [3]
   The grounds of appeal are:

1. I
   The learned Magistrate’s consideration of whether to make a protection order under s. 37 of the Domestic and Family Violence Protection Act 2012 (‘the Act’) miscarried due to errors of fact and law;

1. II
   There was no proper basis on the evidence for the learned Magistrate to make a protection order under s. 37 of the Domestic and Family Violence Protection Act 2012 (‘the Act’); and

1. III
   There was no proper basis for the learned Magistrate to order costs under s.157 of the Act against the appellant in favour of the respondent, in the manner that was done, or at all.

4. [4]
   There is a degree of overlap in the grounds. I will deal with the particular complaints within the first ground as I deal with Grounds 2 and 3.

Ground 2 – Was there are a proper basis for the order made against the appellant?

5. [5]
   Before making a protection order, s. 37 of the DVFP Act required that the learned magistrate be satisfied that:

a) A relevant relationship exists between the aggrieved and the respondent; and

b) The respondent has committed domestic violence against the aggrieved; and

c) The protection order is necessary or desirable to protect the aggrieved from domestic violence.

6. [6]
   The magistrate was required to take into account the principles mentioned in s. 4 of the Act.

7. [7]
   The parties were in a relevant relationship. They were spouses (ss. 13 and 14). They were married in India on 25 February 2004. It was an arranged marriage.

8. [8]
   She came to Australia on a spouse visa in February 2005. Their son was born on 22 March 2006. The appellant’s parents came to Australia in September 2006 and lived with the family. The parents moved into their own home in 2008. At some point, which is not clear, the couple and their son moved in to his parents’ home at Oxley. The respondent said the home was bought by the appellant and his parents.

9. [9]
   It was open to the learned magistrate to conclude the appellant had committed acts of domestic violence against the respondent. The respondent’s application and affidavit set out particulars of domestic violence under several headings: verbal abuse; controlling behaviour; psychological abuse using the child; sexual abuse; financial abuse; threats and intimidation. She annexed to her affidavit a transcript of a recording she made, using her mobile phone, on 20 November 2015, as she was packing to leave the family home.

10. [10]
    She perceived an alliance against her – the appellant, his parents and the son. The transcript provides a basis for her perception.

11. [11]
    The appellant says the recording is not a reliable indicator of his conduct towards the respondent because he was upset upon hearing she was leaving. She answers that he was aware she would leave, because two days earlier he demanded she leave if she did not put all, instead of part only, of her wages into the joint account.

12. [12]
    The really telling aspect of the transcript is the language and attitude of the child towards his mother. It is startling. The learned magistrate considered the transcript at some length – it went to proof of the respondent’s case and to the credibility of the appellant. In my view, the magistrate was correct to so use the transcript. Even allowing for the appellant’s claimed surprise at the respondent’s leaving, it shows the manner in which the appellant treated the respondent. The conduct of the child gives rise to the inference that the appellant had treated the respondent in such a way over a lengthy period in front of the child.

13. [13]
    The magistrate, in my view correctly, interpreted the transcript as confirmation of the respondent’s claim that the discussion was principally about money – the appellant’s demand that the respondent deposit all of her wages into the joint account. The appellant’s evidence was that certain statements by him and his father, who was present for some of the interaction, concerned the allegation that the respondent punched the child two days earlier. The learned magistrate rejected this evidence. That was open to his Honour. In my view, that evidence does not explain the discussion in the transcript.

14. [14]
    I interpret the transcript precisely as the learned magistrate did. His Honour remarked the recording was of ‘an appalling exchange …. It speaks volumes about what was going on.’

15. [15]
    Of course, care must be taken in its use. The transcript is largely a translation. Although no serious issue was taken with its accuracy, there are occasional possible errors. The child was playing at the time with Yu–gi-oh cards and other toys. Some of his remarks to his father are about the cards. Sometimes the transcript reads ‘cars’ when it is likely the child said ‘cards’.

16. [16]
    The appellant and respondent are both tertiary-educated and the child, although only 9 years old at the time, is obviously very intelligent and articulate. A significant part of the transcript is an exchange between the appellant and the child while the respondent packs.

For example, the appellant says, “She will force you to live with her”.

The child responds, “I know. She is probably going to put a law suit that I can’t live with you, I have to live and stay with her. Isn’t that right, mummy? Good thing I have already planned contingency for it.”

17. [17]
    The learned magistrate referred, in his reasons, to relevant parts of the transcript, including where the appellant tells the respondent that he had shown her only decency, that she had not seen ‘rowdyish’. He says, “I will now show you rowdyism. Now, you be scared.”

18. [18]
    The evidence of the respondent’s friend, although about an incident which occurred in 2012, after a separation of the appellant and respondent, confirmed the respondent’s evidence about financial abuse. The friend deposed that the appellant told her, on the telephone, that the respondent must put her redundancy payment into the joint account and must not hold separate accounts, or she would not be able to return to the family.

19. [19]
    The transcript also confirmed or was at least consistent with other aspects of the respondent’s claims, for example, that the appellant would shout at her in front of the child.

20. [20]
    The learned magistrate noted in detail the conduct of the child as shown in the transcript. I have already quoted one short passage. A little later, apparently adapting Yu-gi-oh strategy, the child says he is putting the respondent into ‘Exile forever’.

After further exchanges the appellant says, “She is worst mother. She could never be a good daughter, she could never be a good wife and not even a good mother, yet.”

The child says, “Probably she is not a good ………………” [the respondent’s profession].

The appellant: “Well, I don’t know about that her company knows. And I really wish they kick her out she can be punished in her own life.”

The child: “Who says, daddy, I am going to ask grandmother grandfather and you at the time she is leaving when her last bag is excited (sic.’exited’) I would give her punishment short.”

The appellant: “You can do whatever you want man, no problem. Nobody is going to ever stop you from doing anything to her.”

21. [21]
    One cannot be certain whether the child is referring to a punishment such as ‘Exile’ but earlier, after the appellant told him to make some space – “she needs to move out so she needs that space” – the child said, “Now can you slap her on her way out?”

22. [22]
    The child then says, “She can go in the hole I don’t care. All I care is mummy is leaving. If she lives in New York I will go furious. You live in the big apple without your son that the height.”

23. [23]
    From these and other passages the learned magistrate referred to, his Honour concluded the child had been coached and poisoned against his mother, the respondent.

24. [24]
    In my opinion, such a conclusion was open. I draw it too. But the learned magistrate went further, going on to conclude that the appellant’s case was scurrilous, deliberately false and vexatious.

25. [25]
    I will return to this issue when dealing with Ground 3.

26. [26]
    His Honour did not expressly set out the elements of s. 37 of the Act but there is no doubt his Honour was conscious of them. The transcript of submissions shows that each of the relevant requirements was subject to argument. And the learned magistrate referred specifically to the third ‘element’ when assessing the appellant’s application. The materials led the learned magistrate to conclude the appellant’s application was,

“an outrageous case and pure nasty, vindictiveness on this woman because she wouldn’t hand over her money to a controlling, bullying husband. I don’t believe she has been anything other than a good mother to her child. I dismiss the [appellant’s] application …, as I said, but I do intend to make an order in favour of the wife.

In my view, as I mentioned during submissions, the fact that property settlements in family law matters are still contentious and, indeed, the mother still isn’t even getting face-to-face contact with her own child at the moment, there is every opportunity for the husband to continue his bullying behaviour to try and manipulate the wife into caving in to his demands about the child, about financial affairs, and anything else that he might have a penchant to do in his bullying behaviour. She is absolutely in need of protection. He needs to be kept well away from her”.

27. [27]
    It is advisable that a magistrate make specific findings with respect to the matters set out in s. 37 of the DVFP Act. These would make it plain to the person bound by an order that it is based on facts found in the evidence and inferences drawn from them. The appellant takes that point, as a particular to Ground 1 – that there was a failure to give proper reasons for findings under s. 37, amounting to an error of law. Even very busy courts have a duty to provide reasons for their decisions.^[1] In Martin v Rowling & Anor [2005] QCA 128 at [3] McMurdo P said,

“The obligation to give adequate reasons does not require the reasons to necessarily be lengthy or elaborate but they should articulate the essential ground or grounds upon which the decision rests”.

28. [28]
    In this case, the appellant was present for the whole proceeding and the transcript of the proceeding including the submissions of Counsel is available to this court upon the appeal. In the circumstances, the manner in which his Honour reached and set out conclusions is sufficiently clear to be amenable to examination and review. The statements I have just referred to may be properly understood as his Honour’s reasons for being satisfied that the protection order was “necessary or desirable to protect the aggrieved from domestic violence” (s 37(1)(c)).

29. [29]
    I have already set out why I agree with the learned magistrate’s analysis of the transcript of the recording made on 20 November 2015. To the extent that that transcript is available as part of the court record, I am in a broadly similar position to the magistrate. However, the appellant and respondent presented two dramatically opposed accounts of various incidents in their marriage relationship. His Honour saw and heard both giving evidence. Although his Honour spoke in very strong language, the passages I have referred to in this judgment from his Honour’s reasons reduce to the finding that his Honour rejected utterly the credibility of the appellant and accepted completely the credibility and reliability of the respondent. There is nothing in the materials which objectively suggests that those findings were not open to his Honour or that I should draw different inferences from facts in the record.

30. [30]
    In support of Ground 1, the appellant submitted that the magistrate’s acceptance of the respondent’s evidence that she had not assaulted the child could not be reconciled with the magistrate’s “lack of acceptance of the respondent’s evidence that she had been raped by the appellant”.

31. [31]
    The magistrate was not required to decide whether the appellant raped the respondent. One of the appellant’s allegations of domestic violence was that the respondent falsely complained to police that he had raped her in 2013. As the magistrate explained, to find that the complaint to police was an act of domestic violence by the respondent against the appellant would require first a finding that the allegation was not true. On the evidence the learned magistrate was not prepared to make that finding. No error is disclosed in that process. More to the point, I am not satisfied there is any inconsistency between the magistrate’s position on that point and his Honour’s credibility findings.

32. [32]
    The learned magistrate’s reasoning with respect to the need or desirability for an order to protect the respondent from domestic violence in the setting of the continuing family court proceedings was not shown to be wrong. In this regard I notice the remarks of McGill SC, DCJ in GKE v EUT [2014] QDC 248 at [28] that this question:

“is concerned with the situation in the future, something which cannot be proved as a matter of historical fact, but depends on the magistrate’s assessment of the circumstances, bearing in mind the extent to which there is likely to be a continuing need for contact between the parties”.

33. [33]
    In that case Family Court orders were in place but the parties had children together and there would necessarily be some continued contact. In those circumstances, which appear to have required less contact than is to be expected in the current case, McGill SC DCJ said, “it is clear that, at least for a long time there is going to be some continuing contact between the parties, in connection with their respective rights and obligations in relation to the children, this a relevant consideration.”

34. [34]
    In the result, Ground 2 fails because it was open to the learned magistrate to conclude, and it is my opinion upon a review of the record, that there was a sound basis for the order made in favour of the respondent.

Ground 3 – the appeal against the costs order

35. [35]
    No provision for appeal against a costs order is made under s. 164 of the DVFP Act. It provides, relevantly, that a person aggrieved by any of the following decisions may appeal against the decision, namely: a decision to make, vary or refuse to vary a domestic violence order; a decision to refuse to make a protection order or a temporary protection order.

36. [36]
    The costs order was made under s. 157 of the DVFP Act. It provides that parties must bear their own costs but the court may award costs against an unsuccessful applicant “on the grounds that the application is malicious, deliberately false, frivolous or vexatious.”

37. [37]
    Section 143 of the DVFP Act, ‘to remove any doubt’, declares that the provisions of the Justices Act 1886 apply to a proceeding under the Act before a Magistrates Court, unless inconsistent with the DVFP Act. But s. 222 of the Justices Act, which allows an appeal against an ‘order’^[2] made by a magistrate in a summary way ‘on a complaint for an offence or breach of duty’, is not analogous. So, although it has been held that an appeal may lie under the Justices Act against the making or the failure of a magistrate to make a costs order^[3], the terms of s. 164 of the DVFP Act appear to define the ‘decisions’ which may be the subject of appeal.

38. [38]
    The Supreme Court of Queensland Act 1991 s.62 provides for an appeal to the Court of Appeal from ‘any judgment or order’ of the court in the Trial Division. That this includes an order for costs is confirmed by s. 64, which provides that an appeal only in relation to costs lies to the Court of Appeal only by leave of the judge who gave the judgment or made the order. Similar provision is made with respect to appeals from the District Court: District Court of Queensland Act 1967 s. 118B. That the DVFP Act has no such specific provision for appeal against a costs order tends to suggest none is available.

39. [39]
    The UCPR 1999, which, by s. 142(2) of the DFVP Act apply to an appeal, do not seem to supply an answer.

40. [40]
    No point was taken by the respondent that the appeal against the costs order was incompetent and I have heard no argument on the issue. It is unnecessary to decide the point because of the conclusion I have reached about the order.

41. [41]
    Just before making the statements quoted in paragraph [26] above, the learned magistrate said:

“Sadly what I say in these proceedings can’t be used in the Family Court. These proceedings are private proceedings. I wish they could. I wish the Family Court could hear what I think about the reliability of [the appellant]. It’s been a scurrilous case. On my view, his application has been deliberately false and vexatious. I can say that, in 12 years as a magistrate, I have never ordered costs in a domestic violence case before. I intend to today for the first time in many hundreds of cases.”

42. [42]
    The conclusion that the appellant’s case was scurrilous, deliberately false and vexatious, was likely informed by the magistrate’s general rejection of the appellant’s credibility and his Honour’s view that the child had been “put up to make up about being assaulted, which I don’t believe for a moment.” This involved three findings. First, that the respondent did not assault the child by punching him in the mouth on 18 November 2015; second, that the child falsely complained in his statutory declaration and to the doctor; third, that the appellant ‘put up’ the child to make the false complaint.

43. [43]
    The evidence relevant to whether the respondent had assaulted the child included the following. The appellant deposed that on the evening of 18 November 2015 he received a report that the child was not completing his homework. He spoke to the respondent, asking her to speak to the child about the homework. She went downstairs and then the appellant heard an argument. He went downstairs and the child told him, ‘mummy punched me in the mouth and she has broken my tooth’. He exhibited a photo which is said to show the broken tooth. He took the child to the police on 20 November 2015 to make a complaint. The appellant made a statement to police dated 19 December 2015.

44. [44]
    The appellant attached to his application a statutory declaration apparently made by the child on 5 December 2015, written in a child’s hand writing:

“On 18/11, my mother punched in the mouth and broke my tooth. On 20/11, she moved out. On 24/11, she came to after school care around 4:30 pm and tried to take me with her. When I refused, she said that she will cause me ‘a lot of pain’. I am very scared of her. She may harm me. I do not wish to meet her or talk to her. She can do anything* to harm me. She is very abusive, violent* and unpredictable*”. (* - spelling corrected)

45. [45]
    The respondent visited the child at his after-school care on 24 November 2015. Her account is that she played with him.

46. [46]
    The appellant deposed that he collected the child that day and found him upset; the child said, “mummy came here and told me she wanted me to go to her house and not live with you, I told her ‘no’ but mummy said I will cause you a lot of pain and then she left.” The appellant reported the incident, in writing, to the centre.

47. [47]
    About this time, the respondent had the child’s passport placed on an airport watch list, which prevented the appellant and the child travelling to India for a family occasion.

48. [48]
    The appellant also attached to his application a Patient Medical History. The appellant took the child to a doctor on 7 December 2015. The notes record the child was “very anxious and worried that he will be harmed by his mum. Since she has made a threat to harm him and cause lot of pain to him on 24/22/15 at after school care,” The notes continue:

“As per Dad’s statement he is in need of some type of legal protection for his safety. Father has been trying to get a protection order for safety of the child and to ensure the child is in an environment that prevents his mum’s interference.

Dad also states that the Child’s passport has been blocked. So he was not able to attend the wedding overseas because the trip was cancelled on 6/12/2015. This is causing a lot of stress on the child.

Child is emotionally and psychologically traumatised by the action of mum.

Child is a known case of asthma.

Was punched in face by mum in the past that broke upper taring tooth.

As per the mental health plan: mum is very abusive. So he is very scared, crying in fear, does not want to see his mom again. He gets up in sleep and is worried about seeing his mum again.

Dad says that the child is getting nightmare of being abused by mum.

Anxiety

PTSD

Adv. to come for review in 3- 5 days

Dr Cheong has done a mental health care plan”.

49. [49]
    The notes do not include confirmation of a broken tooth. In my opinion, the photograph tendered does not confirm a broken tooth. It is not inconsistent with a dislodged tooth, which is the result recorded in the police file exhibited.

50. [50]
    Under cross examination, the respondent denied the assault allegation.

51. [51]
    The first three particulars of Ground 1 concern the finding that the appellant ‘put up’ his son to make a false complaint. The appellant submits as follows. This was effectively a finding that the appellant attempted to pervert the course of justice. Such a finding was so serious that a high standard of satisfaction was required before making it, according to the decision in Briginshaw v Briginshaw (1938) 60 CLR 336. The magistrate erred when he said, during submissions, “I have to decide these things on the balance of probabilities: what’s more likely than not.”  In the result, all of the magistrate’s findings, particularly findings of a serious nature, were affected by fundamental error.

52. [52]
    The appellant submits the conduct of the child as shown in the transcript, which demonstrates serious antipathy towards his mother, was explicable in ways other than brainwashing or coaching by the appellant. Suggested alternatives are prior ill-treatment by the respondent consistent with the child’s statutory declaration or the child’s hatred of his mother for other reasons.

53. [53]
    Once the learned magistrate rejected, properly in my opinion, the credibility of the appellant and accepted, as was open to his honour having seen the witnesses, the credibility of the respondent, the inference that the child had been influenced by his father, intentionally or by sheer repeated exposure to the appellant’s conduct, to consider his mother as the transcript shows was irresistible.

54. [54]
    Whether it was open on the evidence to be satisfied the father ‘put up’ the child to make a false complaint is arguable, but I am not satisfied the leaned magistrate erred in the application of the standard of proof. His Honour was expressly aware of the gravity and consequence of the ultimate finding – that the appellant’s application was so devoid of merit as to call for a costs order against him. His honour expressed the relevant remarks with a very high degree of confidence – “she’s only allowed contact over the telephone, no doubt because of these outrageous allegations that the child has been put up to make up about being assaulted, which I don’t believe for a moment.”

55. [55]
    The appellant submitted that the learned magistrate, in concluding that the child’s complaint was untrue, wrongly took into account the absence of evidence of the appellant’s father, despite his claim that the grandfather witnessed the assault.

56. [56]
    During submissions the learned magistrate remarked: “He also said that the child was punched in front of his father but doesn’t call his father.”

Counsel’s reply included, “So one might think that there’s a Jones and Dunkel issue there.”^[4]

57. [57]
    In his reasons, the learned magistrate said, ‘…the husband has today given evidence that that was witnessed by his father, the grandfather. The grandfather, as I’ve already said, has not given evidence; but there is an affidavit from the boy saying that this happened.’

58. [58]
    To the extent that this remark relates to the assessment of the appellant’s credibility, it is relevant to the discussion of Ground 3. The point is taken as a particular of Ground 1. The appellant submits the magistrate wrongly concluded that the lack of evidence from the father was relevant. Section 145 of the DVFP Act provides that the court is not bound by the rules of evidence and may inform itself in any way it considers appropriate. The appellant submits that notice should have been given of the point so the appellant could meet it. The difficulty for the appellant is that the magistrate questioned him directly on this point, asking, ‘did you see it.’ The appellant answered that his father, his parents, saw it. The magistrate asked again whether the appellant saw it and after an explanation that the appellant was upstairs, the magistrate said, “I’ll take that as a no.” That exchange must have alerted the appellant’s representatives to the utility of cogent evidence of the assault.

59. [59]
    The appellant sought to admit on the appeal an affidavit which attached a statement, consistent with the boy’s account, made by the grandfather, which was available to his representatives at the hearing below. This is the evidence I declined to admit under s. 168 of the Act.

60. [60]
    It is not clear the magistrate was actually influenced by the lack of evidence from the grandfather, given his immediate notice of the son’s statement. In any case, I am not satisfied the learned magistrate erred by wrongly concluding any evidence of the appellant’s father would not have assisted his case.

61. [61]
    Another point taken as a particular to Ground 1, which is relevant to the costs order, is that the learned magistrate erred in his reasons by ignoring alleged episodes of violence towards the child by the respondent as irrelevant to the appellant’s application,

“because that doesn’t go to whether an order should be made in favour of the husband, because I have to look at domestic violence he has experienced, and if I am satisfied he’s experienced domestic violence, I then have to decide whether it’s necessary or desirable to make an order to protect him from further domestic violence.”

62. [62]
    Section 8 of the DVFP Act includes in the definition of domestic violence behaviour that is emotionally or physically abusive (s. 8(1)(b)) or threatening a person with the death or injury of a child of the person (s. 8(2)(e)). To amount to domestic violence, the behaviour of the respondent must have been conduct directed at the appellant threatening death or injury to the child. I do not think the learned magistrate misunderstood the definition. Even if there were an error here I would not be satisfied that it substantially informed the costs decision. His Honour went on to say that, even if, which he did not accept, there had been denigration of the appellant over the years, he would not consider an order was needed to protect the appellant in future.

63. [63]
    His Honour’s decision to order that the appellant pay costs depended on the finding that the appellant’s application was malicious, deliberately false, frivolous or vexatious. As I have said, one matter that seems to have influenced his Honour’s conclusion was the finding that the appellant coached his son into making a false complaint against the respondent. It was open on the material to conclude that the son made a false statement, but it is difficult to see how one could be satisfied, on the balance of probabilities to a sufficiently high degree to draw such a serious and consequential inference, that the appellant coached or directed that action. Another possibility is that the child was so influenced by the culture of the home, as shown in the materials, that he would make a false complaint without the father’s direction or suggestion.

64. [64]
    However, in my opinion, it did not require the finding that the appellant ‘put up’ the child to make the false complaint before the magistrate could properly make the costs order. True it is that the order required the thorough rejection of the appellant’s application, but that was easily open to the learned magistrate.

65. [65]
    On its face the appellant’s application was not unreasonable. It is based primarily on threats allegedly made by the respondent against him and his family and by reference to the son’s allegation of assault. However, the application itself includes allegations that were not repeated in his affidavit or proved in evidence. One example is the assertion that the respondent “is surrounded and is friends with people involved in possible criminal activity with current proceedings in court”. In any case the learned magistrate was entitled, as I have said, to thoroughly reject any of the appellant’s assertions. Having done that it was open to find the appellant’s application vexatious. According to the statement the appellant made to police on 19 December 2015 in support of the son’s complaint of assault, the chronology leading to his application was as follows:

20 November 2015, the respondent moved out of the family home;

24 November 2015, the respondent visited the child at afterschool care;

30 November 2015, the respondent filed an affidavit in the Family Court in relation to custody and contacted the Australian Federal Police to put a “block” on the child’s passport;

7 December 2015, the appellant took child to the doctor;

8 December 2015, the appellant filed his application.

66. [66]
    The learned magistrate concluded the application was brought to vex the respondent – it was “deliberately false and vexatious”, brought because “she wouldn’t hand over her money to a controlling bullying husband”. These findings were open on the material.

67. [67]
    In the result, although I have a reservation about whether it was open to the learned magistrate to infer to a high degree of probability that the appellant put his son up to making a false complaint to police, it was nonetheless open to his Honour to conclude the circumstances permitted the costs order. I see no basis for interfering with the exercise of discretion.

68. [68]
    Upon my review of the record, I confirm the learned magistrate’s decisions to make the order in favour of the respondent and to order the appellant to pay the costs of his failed application.