“The discretion conferred on the trial judge is unfettered, but there is a right of appeal, and, to quote from Lord Simon’s speech in Blunt v. Blunt (above, at p. 526)- “If it can be shown that the court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take into account matters that are relevant, there would, in my opinion, be ground for an appeal. In such a case, the exercise of discretion might be impeached, because the court’s discretion will have been exercised on wrong or inadequate materials, but, as was recently pointed in this House in another connexion in Charles Osenton v. Johnston [1942] AC 130, 138: ‘The appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the judge. In other words, appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion, had it attached to them, in a different way. But if the appellate tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight, or no sufficient weight, has been given to relevant considerations … then the reversal of the order on appeal may be justified’. “Osenton’s case was one in which the discretion being exercised was that of deciding whether an action should be tried by an official referee, and the material for forming a conclusion was entirely documentary and was thus equally available to the appellate court. The reason for not interfering, save in the most extreme cases, with the judge’s decision under S.4 of the Matrimonial Causes Act, 1937, is of a far stronger character, for the proper exercise of the discretion in such a matter largely depends on the observation of witnesses and on a deduction as to matrimonial relations and future prospects which can best be made at the trial. In Holland v. Holland [1918] P. 273, 280, Swinfen Eady M.R. defined the only issue that can be raised in the Court of Appeal in challenge of the exercise of the divorce judge’s discretion thus: “The question for consideration by this court is whether his judgement is erroneous, and not whether we should have exercised the discretion in the same manner as the judge below did. There is no appeal from his discretion to our discretion, and the appellant is not entitled to succeed unless the judgement is erroneous.”
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