Styles v O'Brien

[2007] TASSC 67

[2007] TASSC 67

CITATION:              Styles v O'Brien [2007] TASSC 67

PARTIES:  STYLES, Alan Alfred
  A A & C A STYLES PTY LTD (ACN 009 526 587)

v
  O'BRIEN, Mark Augstine
  WILLIAMS, Michael John
  MATTHEWS, Gerald Desmond
  VIMPANY, Richard Eric
  MATTHEWS, Kevin Anthony
  INVESTMENT NOMINEES LIMITED (ACN 009 503 315)
  TASMANIAN NOMINEES (LAUNCESTON) PTY LTD     (ACN 009 494 580)

TITLE OF COURT:                   SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LDR 3/2007
DELIVERED ON:  28 August 2007
DELIVERED AT:  Launceston
HEARING DATE:  7, 8 June 2007
JUDGMENT OF:  Crawford J
CATCHWORDS:

Profession and Trades – Lawyers – Duties and liabilities – Solicitor and client – Acting against former client – When a solicitor may be restrained – Whether duty of loyalty – Court's inherent jurisdiction – Public policy.

Styles v O'Brien [2007] TASSC 13, affirmed.
A v Law Society of Tasmania (2001) 10 Tas R 152; Prince Jefri Bolkiah v KPMG [1999] 2 AC 222, followed.
Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501, not followed.
Kallinicos v Hunt [2005] NSWSC 1181, considered.
Aust Dig Professions and Trade [1156]

REPRESENTATION:

Counsel:
             Appellant:  S Wartski
             Respondent:  K J Stanton
Solicitors:
             Appellant:  Horak Frankovich Rose & Cross
             Respondent:  S B McElwaine

Judgment Number:  [2007] TASSC 67
Number of paragraphs:  33

Serial No 67/2007
File No LDR 3/2007

ALAN ALFRED STYLES and A A & C A STYLES PTY LTD (ACN 009 526 587)
v MARK AUGSTINE O'BRIEN, MICHAEL JOHN WILLIAMS, GERALD DESMOND MATTHEWS, RICHARD ERIC VIMPANY, KEVIN ANTHONY MATTHEWS, INVESTMENT NOMINEES LIMITED (ACN 009 503 315) and TASMANIAN NOMINEES (LAUNCESTON) PTY LTD (ACN 009 494 580)

REASONS FOR JUDGMENT  CRAWFORD J
  28 August  2007

1. The appellants sued the respondents.  In essence, the action amounted to a claim for whatever money might be due to the first appellant ("Mr Styles") following his resignation as a principal from the accounting firm known as Camerons Accountants and Advisors ("Camerons"). 

1. The action was commenced on 24 November 2006.  The respondents instructed Mr S B McElwaine, a legal practitioner, to act for them.  On 12 December 2006, he filed an application to strike out the statement of claim because it failed to disclose a reasonable cause of action and for other reasons.  On 14 December 2006, he filed and delivered a defence, which merely denied everything in the statement of claim.  I was informed from the bar table, without objection, that it should only be regarded as a holding defence and that it was provided in that form only because the appellants insisted on a defence within the prescribed time limit and were not prepared to wait for it until after the application to strike out the statement of claim was determined.

1. On 17 December 2006, the appellants' solicitors demanded of Mr McElwaine that he cease to act because he had "a very serious conflict of interest" and they threatened to report him to the Law Society if he did not undertake, by the following day, that he would do so.  He continues to act for the respondents.  On 2 February 2007, the appellants applied for an order that he "be disqualified from acting as solicitor for the defendants".  The parties agreed that the application should be determined before the application to strike out the statement of claim is heard.  The application to disqualify Mr McElwaine was heard by the Master on 23 February and 21 March, and on the latter date the Master dismissed the application for reasons that were published.  Styles v O'Brien [2007] TASSC 13. On 30 March 2007, the plaintiffs appealed from the Master's decision. I heard the appeal on 7 and 8 June.

1. The second appellant is the trustee of a discretionary trust of which Mr Styles and members of his immediate family are the beneficiaries.  Mr Styles was one of six principals of Camerons.  The first five respondents are the continuing principals of Camerons.  The second appellant holds units in two unit trusts which hold assets of the accountancy business.  There are separate corporate structures for associated businesses of Camerons.  The sixth respondent operates a finance business known as Equity Finance.  The seventh respondent holds the assets of a financial planning business carried on by Camerons.  The structure of the group is more intricate than I have stated, but it is unnecessary to detail everything. 

1. The basis upon which the appellants seek to prevent Mr McElwaine from acting for the respondents arises out of events that occurred nine years ago.  In 1998 and 1999, there was what in essence was a dispute between an expelled principal of Camerons, Mr Clark, and the remaining principals, who consisted of Mr Styles, the first to fifth respondents and some other persons who have since left the firm.  At that time, the third and fourth respondents were "salaried principals" only but they became "equity principals" on 1 July 1999.  At the time of the dispute with Mr Clark, Camerons, made up of the remaining principals, instructed and sought advice from legal practitioners, Bishops, including advice in relation to Mr Clark's exit entitlement.  It appears that in turn, Bishops instructed Mr McElwaine to act for Camerons and provide advice in relation to the matter.  On 10 November 1998, there was a conference at the Launceston office of Camerons with Mr McElwaine.  Mr Styles did not attend because he worked out of an office at Scottsdale, and he had no personal dealings with Mr McElwaine.  In his affidavit sworn in support of his application to remove Mr McElwaine, Mr Styles said that Mr McElwaine was provided with information that included the internal structure of Camerons, its component entities and its business practices.  Mr Styles also said that Mr McElwaine was imparted with knowledge of "negotiation strategies employed", but what that meant is not apparent.  Mr Styles also said that he believed that Mr McElwaine "was advised of the criteria the principals of Camerons considered to be relevant in determination and quantification of the unit price and exit entitlement".  The meaning of that is also unclear. 

1. On 30 November 1998, Mr McElwaine sent to Bishops an eleven page letter of advice.  Most of the first eight pages of the letter concerned Millar Seymour Unit Trust, which is no longer a relevant entity.  He then briefly mentioned Camerons Unit Trust, which was established by a deed dated 1 July 1997.  The respective principals of Camerons, then and now, were collectively the trustees of Camerons Unit Trust pursuant to that deed.  The principals, either personally or through their nominee companies, were the unit holders of Camerons Unit Trust.  (The second appellant, as Mr Styles nominee company, is a unit holder in it.)  Mr McElwaine stated that the deed was a valid document and, as a consequence of the conference with the client on 10 November 1998, he thought that the only issues that needed to be explored were the expulsion of Mr Clark and the determination of the value of the interest in the trust that was held by his family trust company as a unit holder.  On pages 8 and 9 of the letter, he advised that there had not been an effective removal of Mr Clark as a trustee of Camerons Unit Trust nor an effective acquisition of the units held by his family trust company, explaining why by reference to procedural clauses in the Camerons Unit Trust deed.  He gave advice as to how, procedurally, those matters could be resolved. 

1. In his letter of 30 November 1998, Mr McElwaine referred in five lines to Equity Finance, the finance business operated by the sixth respondent, noting merely that without much more detailed information about it than he had, he could not express any views about it. 

1. Finally, under the heading "Dealings with Mr Clark", Mr McElwaine wrote:

"It is apparent from the letter which Mr Ellis sent dated 12 October that the offer to settle for $310,000 was made in respect of all entities in which Mr Clark and or companies in which he has an interest are interested.  It also emerged during our discussion on 10 November that there are many more entities than the Camerons Unit Trust, equity finance and the ownership of the building.  Tactically I think that Mr Clark must be dealt with on an entity by entity basis.  That is principally because persons who have interests in other entities no longer have interests in the Camerons Unit Trust or the accounting business.  I do not see any great urgency in dealing with the other entities at this juncture.  That which are most pressing (the Camerons Unit Trust) must be dealt with first."

1. On the same date, Mr McElwaine wrote to Mr Clark's solicitors.  Among other things, he stated:

"Consideration has been given to your client's proposal to settle for $310,000 in respect of all relevant 'entities'.  But when I looked at this, the more questions I asked, the more entities which were identified to me.  I do not think that this matter is capable of resolution on a global basis ... I have looked fairly carefully at the ... Camerons unit trust and some select dealings surrounding them.  I do not share the concerns which you have expressed in your letter about the constitution or operation of those respective trusts."

1. It was Mr Styles' evidence that in many essential respects, entities comprising Camerons and their mode of operation are unchanged since 1998 and that given the similarities in the nature of the disputes then and now, and given the common factual ground in both matters, he fears that there is a real possibility in the present action of misuse to his detriment of information received by Mr McElwaine in confidence on behalf of Mr Styles [and the other principals of Camerons] in about 1998. 

1. There was also evidence from Mr Styles that on 18 May 1999, Mr McElwaine gave some taxation advice to Camerons concerning York Accounting Services Pty Ltd, which employed some of the staff who worked at Camerons at that time and of which Mr Styles was one of two directors and shareholders of that company.  It has since ceased to operate and was deregistered, I infer many years ago and probably not long after Mr McElwaine provided his letter of advice, in which he expressed concern surrounding the continued use of the company as an employer.  It was Mr Styles' evidence that to the best of his recollection, in or about February 1999, one of the then principals of Camerons, on behalf of all of the principals, wrote to Mr McElwaine seeking advice concerning the company, and at the same time sent to Mr McElwaine information regarding the beneficiaries who were benefiting from the trust, of which the company was the trustee.  One of those beneficiaries was one of Mr Styles' nominee companies.  He claimed in evidence that he was concerned that there was a real possibility that confidential information imparted to Mr McElwaine, in relation to the York Accounting Services Pty Ltd matter, might be used to his detriment in the present action, especially as to matters of credit.  He provided no evidence that supported that claim of concern and the making of a finding that there was a real possibility of confidential information being used by Mr McElwaine.  The Master made a finding that there was no such possibility when dealing generally with the question of a breach of confidentiality. 

A conflict of interest?

1. Before the Master, the appellants maintained what they claimed in the letter of 17 December 2006, that Mr McElwaine should be disqualified from acting for the respondents because of a conflict of interest.  The Master regarded the assertion to be hopeless and it was abandoned by the appellants after their counsel acknowledged to the Master that the appellants were not existing clients of Mr McElwaine.

A breach of confidentiality?

1. It was next maintained before the Master, that Mr McElwaine should be restrained from continuing to represent the respondents as an enforcement of his duty to preserve the confidentiality of communications made in the course of the former dealings.  The Master regarded that assertion hopeless, because there was no suggestion, nor could there be, that communications made to Mr McElwaine in about 1998 were confidential between the two of them and not to be disclosed to the other principals, and vice-versa.  All relevant communications concerned matters of joint interest as between the appellants and the respondents.  See Farrow Mortgage Services v Webb (1996) 39 NSWLR 601 at 608 and Yunghanns v Elfic Pty Ltd [2000] 1 VR 92 at pars 30 and 35. Although the first five grounds of the appeal to this Court attacked the Master's rejection of the assertion, they were abandoned at the outset of the hearing.

A duty of loyalty?

1. The next argument of the appellants was that Mr McElwaine's involvement in this action amounts to a breach of a duty of loyalty.  The Master rejected the argument, holding that he was bound by A v Law Society of Tasmania (2001) 10 Tas R 152, in which it was held that in this State, no enforceable duty of loyalty exists. Ground 6 of the appeal maintains that the decision in A v Law Society of Tasmania was wrong in law and ground 7 maintains that if there is such a duty, it should be held that Mr McElwaine's involvement as solicitor for the respondents amounts to a breach of it. 

1. In Prince Jefri Bolkiah v KPMG [1999] 2 AC 222 at 235, it was held by Lord Millett, with whom the other Law Lords agreed, that where a former client seeks an order preventing a former solicitor from acting in a matter for another client, it is incumbent on the former client to establish (i) that the solicitor is in possession of information which is confidential to the former client and to the disclosure of which the former client has not consented, and (ii) that the information is or may be relevant to the new matter in which the interest of the other client is or may be adverse to the former client. Lord Millett made the point that with the termination of the relationship of solicitor and client, which between the plaintiffs and Mr McElwaine happened in 1999, the court's jurisdiction cannot be based on any conflict of interest, real or perceived, for there is none. The fiduciary relationship which subsists between solicitor and client comes to an end with the termination of the retainer. Thereafter, the solicitor has no obligation to defend and advance the interests of the former client. The only duty that survives the termination of the client relationship, according to the House of Lords, is a continuing duty to preserve the confidentiality of information imparted during its subsistence.

1. Prince Jefri has been followed and applied in a number of cases in this country, to the extent that in A v Law Society of Tasmania, Underwood J said at 164 that for the purposes of the appeal he was considering "there is no need to examine the different approaches taken by the Australian Courts ... for all the authorities dealing with inter partes applications are united that:

·there is no general prohibition against a solicitor acting for [sic] a former client in the same or a related matter;

·injunctive relief will be granted only for the purpose of protecting confidential information."

(What the learned judge meant to say in the first dot point is that there is no general prohibition against a solicitor acting against a former client.)

1. Underwood J was considering disciplinary proceedings before the Disciplinary Tribunal under the Legal Profession Act 1993, s72, and was not concerned with an application by a former client to restrain a former solicitor from acting.  Nevertheless, his Honour observed at 165 that it followed, in the circumstances he was considering, that as the former solicitor, against whom disciplinary proceedings had been taken, was not in possession of confidential information, the former client would have failed had he applied for an injunction to restrain the former solicitor from acting against him in litigation. 

1. The Master considered himself bound by what Underwood J said.  However, the appellants submitted that I should not regard myself as being bound in that way and that I should apply obiter dictum of Brooking JA to the contrary in Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501 at 508 – 525 which have been supported by other obiter dictum in Victoria (for example Sent v John Fairfax Publication Pty Ltd [2002] VSC 429 at [103] – [104]) and by a Victorian solicitor, Sandro Goubran, in an article Conflicts of Duty: The Perennial Lawyers' Tale – A Comparative Study of the Law in England and Australia [2006] 30 MULR 88.  See also McVeigh v Linen House Pty Ltd (1999) 3 VR 394. However, there is a considerable body of authority outside Victoria against those views, in particular in New South Wales. See for example Belan v Casey [2002] NSWSC 58 at [21]; AG Australia Holdings Ltd v Burton (2002) 58 NSWLR 464 at [140]; Asia Pacific Telecommunications Ltd v Optus Networks Pty Ltd [2005] NSWSC 550 at [54]; Kallinicos v Hunt [2005] NSWSC 1181 at [76]; Fruehauf Finance Corporation v Feez Ruthning [1991] 1 Qd R 558 at 570; Flanagan v Pioneer Permanent Building Society Ltd [2002] QSC 346 at [11]; Carindale Country Club Estate Pty Ltd v Astill (1993) 42 FCR 307 at 312 – 313; Nasr v Vihervaara (2005) 91 SASR 222 at [33]; Newman v Phillips Fox (1999) 21 WAR 309 at 315; Westgold Resources NL v St Barbara Mines Ltd [2002] WASC 264 at [28]. A useful text on the subject is Lawyers' Professional Responsibility (3^rd ed) Lawbook Co by Professor Dal Pont at 181 – 209. 

1. A judge of this Court should usually follow a decision of another judge of the Court unless persuaded that it was clearly wrong.  I will follow what was said by Underwood J in A v Law Society of Tasmania (supra) at 164 and hold that for the purposes of considering an inter partes application to prevent a solicitor from acting for one of the parties, there is no general prohibition against a solicitor acting against a former client in a matter that in some way is related to a matter concerning which the solicitor previously acted for the applicant, and the Court will not grant injunctive relief in such circumstances except for the purpose of protecting confidential information.  There is a considerable body of authority in this country supporting that view.  For the purposes of deciding the appeal, I proceed upon the basis that there is no enforceable duty of loyalty in the sense claimed by the appellants. 

Public policy and inherent jurisdiction

1. The final argument of the appellants was that jurisdiction to grant the injunction was nonetheless available on the grounds of public policy and based on the inherent jurisdiction of the Court to discipline and control legal practitioners.  The Master accepted that superior courts may have inherent jurisdiction to disqualify a legal practitioner in order to protect the integrity of the judicial process, the test, an objective one, being whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that the practitioner be prevented from acting, giving due weight to the public interest that litigants should not be deprived of their choice of a practitioner without good cause.  However, the Master could find nothing in the factual circumstances of this case to cause him to conclude that a fair-minded reasonably informed member of the public would think that the proper administration of justice required that Mr McElwaine be prevented from acting. 

1. Grounds 8 and 9 of the appeal attack that conclusion.  In particular, ground 9 asserts that it was erroneous given that:

(a)Mr McElwaine's knowledge of the internal structure of Camerons and its component entities, the business practices of Camerons, and negotiation strategies employed and the criteria and principles relevant in determination and quantification of the unit price and exit entitlement;

(b)the similarities in the nature of the dispute between the appellants and the respondents in this proceeding and in the dispute in which he was previously retained;

(c)the information provided to him in relation to York Accounting Services Pty Ltd;

(d)the third and fourth respondents were not equity principals nor were they trustees of Camerons Unit Trust nor were they beneficiaries of either Camerons Unit Trust or Cameron Unit Trust nor were they shareholders or directors of the sixth or seventh respondents during the time that Mr McElwaine was retained;

(e)the appellants were at the time he was retained, and continue to be at the present time, respectively a trustee and beneficiary of Camerons Unit Trust, beneficiary of Cameron Unit Trust, and director and shareholder of the sixth and seventh respondents on whose behalf he acted. 

1. In those paragraphs there are references to both Camerons Unit Trust and Cameron Unit Trust.  According to the submissions of counsel for the appellants, the accountancy business of Camerons is operated by the principals of Camerons who collectively are the trustees of Camerons Unit Trust pursuant to the deed dated 1 July 1997.  Mr Styles and the first five respondents are unit holders, either personally or through their nominee companies.  On the other hand, the sixth respondent, which operates Equity Finance, is the only trustee of Cameron Unit Trust.  The second appellant is a unit holder in it and I infer that the first five respondents, or their nominee companies, are also unit holders.  Mr Styles and the first five respondents are directors and shareholders of the sixth respondent.  The letter of advice of Mr McElwaine dated 30 November 1998, refers to Camerons Unit Trust and Equity Finance, but not to the sixth respondent or Cameron Unit Trust. 

1. It was conceded by the appellants that the Master was exercising a discretion when he refused to disqualify Mr McElwaine on the ground of public policy, and that the principles upon which a court will interfere with the exercise of the discretion are those referred to in House v R (1936) 55 CLR 499 at 504 – 505.

1. On first impressions, cases such as Prince Jefri and Belan v Casey dictate against the Court's jurisdiction on the basis being considered.  However, there are a number of authorities which suggest that the jurisdiction is merely part of the Court's inherent jurisdiction over legal practitioners and Prince Jefri has been distinguished because it concerned an accountant and not a legal practitioner.  One such case is Kallinicos v Hunt [2005] NSWSC 1181, in which Brereton J reviewed a considerable number of cases and at [76], came to the following conclusions:

1During the subsistence of a retainer, where a court's intervention to restrain a solicitor from acting for another is sought by an existing client of the solicitor, the foundation of the court's jurisdiction is the fiduciary obligation of a solicitor, and the inescapable conflict of duty which is inherent in the situation of acting for clients with competing interests.

2Once the retainer is at an end, however, the court's jurisdiction is not based on any conflict of duty or interest, but on the protection of the confidences of the former client (unless there is no real risk of disclosure).

3After termination of the retainer, there is no continuing (equitable or contractual) duty of loyalty to provide a basis for a court's intervention, such duty having come to an end with the retainer. 

4However, the Court has inherent jurisdiction to restrain solicitors from acting in a particular case, as an incident of its inherent jurisdiction over its officers and to control its process in aid of the administration of justice. 

5The test to be applied in this inherent jurisdiction is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that the legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice. 

6The jurisdiction is to be regarded as exceptional and is to be exercised with caution. 

7Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause. 

8The timing of the application may be relevant, in that the cost, inconvenience or impracticality of requiring a lawyer to cease to act may provide a reason for refusing to grant relief. 

1. Given that I take the view that the Master did not err in the exercise of his discretion and that none of his relevant findings of fact or statements of law or principle are challenged by the grounds of appeal, I find it unnecessary to consider whether all of the conclusions of Brereton J do in fact represent the law of this State.  I will assume that they do.  I am, in fact, unhesitatingly of the view that the discretion was not exercised erroneously.  I would have exercised it the same way.  I will state a number of factors that have led me to that conclusion. 

1. It is over seven years since Mr McElwaine acted for the continuing principals of Camerons, and its associated companies and entities.  He did not continue to act for them.  At that time he acted for them mainly by way of giving them advice concerning the entitlement of Mr Clark, a principal the others had expelled.  That is not the issue here.  There is, of course, a similarity between the kind of matter then arising and now arising, for both concern the entitlement of a principal upon leaving the firm; many of the principals, but not all, are the same; many of the relevant deeds and documents, but not all, are the same; and some of the entities associated with the firm, but not all, are the same.  But I have no reason to think, nor has a fair-minded, reasonably informed member of the public, that identical issues arise, such as disputed questions of interpretation of the same clauses in documents and the same disputed valuations of assets and liabilities.  It is likely that most of the assets will have changed, and certainly their values will have done so.  Values will need to be reassessed. 

1. There is no reason to think that the same significant issues will arise and that as a result, the respondents will have an unfair advantage over the appellants by utilising the services of the same solicitor as before.  A fair-minded, reasonably informed member of the public is likely to think that it is understandable and reasonable that the continuing principals of Camerons should use the services of the same lawyer as before, upon a break-up of the firm, and that the retiring principal should use the services of a different lawyer. 

1. I regard it as extremely unlikely, indeed fanciful, the claim that Mr McElwaine is likely to be called as a witness on the hearing of the action.  He played no part in the preparation of any of the relevant documents, the formation of the firm or the negotiations when Mr Styles joined the firm.  It would surprise me very much to know that Mr Styles, until recently a principal in a relatively small firm of chartered accountants, does not have possession of, or know how to obtain access to the relevant documents and an understanding of the assets and liabilities sufficient for him to understand his rights and to negotiate or litigate concerning his entitlement, without being forced to call Mr McElwaine to give evidence of what he learned in about 1998 from or on behalf of the principals of the firm, who included Mr Styles.  Mr McElwaine has no information that is confidential as against the respondents.  There is no prospect of a breach of confidence occurring. 

1. In answer to a question from his own counsel, in re-examination, concerning his reason for seeking to have Mr McElwaine disqualified from acting against him, Mr Styles said that it was because he believed that "bully boy tactics will be used ... I think there will be pressure brought to bear.  There are other matters other than the York Accounting matter that will be used to bring pressure upon me."  When asked to explain further he said: "I believe it's information that McElwaine will have had from the initial discussions with Clark into the working of Camerons."  Mr Styles was then stood down as a witness, not being asked to explain further.  The real reason for the application is unclear.  Having regard to the fact that it does not concern the risk of a misuse of confidential information, a fair-minded reasonably informed observer would be likely to think that the reason behind the application to disqualify is merely a tactical one, and based only on a belief that the lawyer for the opposing parties knows something the appellants would prefer he did not know.  Whatever it is, he received it in his capacity as legal practitioner for all of the parties at the time.  It was or became the information of the continuing principals of Camerons, including the appellants.  It does not justify the granting of the application. 

1. The exercise by the Master of his discretion has not been shown to be erroneous in accordance with the principles of House v R.

The duty to give reasons

1. By the time the Master exercised his discretion, he had made findings of fact.  He had concluded that Mr McElwaine would have no conflict of interest if he acted for the respondents, that Mr McElwaine had no information that was confidential to the appellants in any relevant sense and that there was no duty of loyalty that is recognised in this State.  The Master then said that there was nothing in the circumstances of the case to cause him to conclude that a fair-minded reasonably informed member of the public would think that the proper administration of justice required that Mr McElwaine be prevented from acting for the respondents, and that he could find no reason for depriving the respondents of their choice of legal practitioner. 

1. The tenth and last ground of the appeal asserts that the Master erred in law by failing to give sufficient reasons for that conclusion.  There is no merit in the ground.  The Master had made findings of fact.  He had correctly stated the test he should apply.  He concluded that there was no reason for making the orders sought.  That was sufficient.  In any event, he exercised the discretion correctly.

Conclusion

1. The appeal will be dismissed.