THE GENERAL MANAGER, AUCKLAND CENTRAL REMAND PRISON V MAILLEY CA CA69/2009

THE GENERAL MANAGER, AUCKLAND CENTRAL REMAND PRISON V MAILLEY CA CA69/2009 21 July 2009IN THE COURT OF APPEAL OF NEW ZEALAND CA69/2009 [2009] NZCA 314BETWEEN THE GENERAL MANAGER, AUCKLAND CENTRAL REMAND PRISON Appellant AND MARTIN JAMES MAILLEY Respondent Hearing: 15 June 2009 Court: Glazebrook, Potter and Keane JJ Counsel: B J Keith for Appellant T Ellis for Respondent Judgment: 21 July 2009 at 4.00 pmJUDGMENT OF THE COURT A The appeal is dismissed for want of jurisdiction. B There will be no order as to costs.____________________________________________________________________REASONS OF THE COURT(Given by Keane J) [1] On 17 December 2008, John Hansen J granted a writ of habeas corpus requiring the release of Martin Mailley from the Auckland Central Remand Prison, where he had been held since 2 July 2008 under warrants of detention issued underthe Extradition Act 1999, the most recent of which was dated 10 December 2008. The Judge held that this last warrant, like those preceding it, was fatally flawed. [2] On 22 December 2008, John Hansen J awarded Mr Mailley costs. The costs he awarded were not indemnity costs of $22,000 as Mr Mailley wished, nor were they pitched broadly at scale 2B of Schedule 2 of the High Court Rules or less, as the General Manager had said was customary. Rather, the costs the Judge awarded were set at scale 3C. The application, the Judge said, had been brought to secure the liberty of the subject and with considerable urgency. [3] The resulting award claimed exceeded $30,000. On this appeal, the General Manager, who has no right of appeal against the principal decision granting the writ but claims a right of appeal against the award, contends that the award is out of all proportion. The General Manager contends that the case was no more complex and had no greater urgency than any other. It was decided on a narrow point, and not the wide array of grounds on which Mr Mailley relied, most of which were inapt to the writ. A normal award was warranted, no greater than $2000 - $3000. [4] In reply, Mr Mailley contends that the Judge was right to hold that the significance of the writ, the purpose and effect of which is to safeguard liberty, was of paramount importance. He should not, he contends, have to meet the cost of extricating himself from unlawful custody. The case was brought with urgency, once he engaged his present counsel. He had by then been detained for five months. He could not be confident he would succeed on the single point that led the Judge to grant the writ. To secure his release he had been obliged to pursue every point with a bearing. The award made will still leave him out of pocket.Governing issue[5] The issue governing this appeal is whether the General Manager has any right of appeal against the costs award made, given that he has no right of appeal against the principal decision. This raises an intimately related issue. If there is no right of appeal against the principal decision, what sensible scope could a right of appealagainst the related award have? How could the one decision be disentangled from the other? [6] Also, two other factors are limiting. The Judge did not decide the wider array of points taken for Mr Mailley. As he saw it, he did not need to. Nor could he on the instant. The point on which he granted the writ was the only one on which he had submissions for the General Manager. Furthermore, the issue as to whether Mr Mailley is to be extradited has yet to be resolved in the District Court, where he continues to rely on his wider argument. The decision made there will be open to successive rights of appeal. It is not for us on this appeal to anticipate the outcome.Context[7] On 2 July 2008, Mr Mailley was arrested on a bench warrant issued on 30 March 2005 in the District Court, Beenleigh, in the State of Queensland, Australia. This warrant was endorsed on 14 March 2008 by Judge Barbara Morris in the District Court, North Shore. In the endorsement the Judge, addressing 'every member of police', said this:I authorise and request you to arrest (Mr Mailley), being the person named in the warrant to which this endorsement relates, and to bring him before a District Court as soon as possible to be further dealt with in accordance with the Extradition Act 1999.[8] Judge Morris gave no reasons for making this endorsement. But the application she granted was made under s 41 of the Extradition Act. For the purpose of this appeal, we will assume she was satisfied as to the four conditions s 41 imposes and for the reasons set out in the memorandum of counsel for the police. The Judge accepted, we will assume, that: the Queensland warrant emanated from an extradition country, Australia; the Judge of the Queensland District Court who issued the warrant endorsed had authority to do so; Mr Mailley was suspected of being in New Zealand; there were reasonable grounds to believe that he was extraditable to Australia; and the offences for which his arrest was sought were extradition offences.[9] According to the affidavit evidence from Queensland, the bench warrant was issued after Mr Mailley failed on 30 March 2005 to appear in the District Court, Beenleigh, to answer twelve charges: six of fraud attracting maximum terms of imprisonment of ten years and six of attempted fraud attracting five year maximum terms. Mr Mailley was alleged, over a period of two and a half years, to have obtained by fraud A$185,220 and to have attempted to obtain A$1,790,000. [10] On 2 July 2008, the day after he was arrested, Mr Mailley was brought before the North Shore District Court. In the first instance, he was remanded in custody until 4 July. He was further remanded seven more times at least, and lastly by Judge Wilson QC on 10 December 2008. The warrant issued that day required that he remain in custody until 22 January 2009. That warrant was brought to an end by the issue of the writ on 17 December 2008. [11] The successive warrants of detention under which Mr Mailley was detained were identical in general form and modelled on a warrant issued in Wellington. The last warrant, dated 10 December 2008, purported to be issued under ss 26(1)(a), 28(2) and 46(1)(a) of the Extradition Act. It was addressed to every member of police and the Manager of the Mt Eden Prison. It said this:On 01 February 2007 Australia made a request under s 18 of the Extradition Act 1999 for the surrender of Martin Mailley also known as James Martin Caldwell and on 14 March 2008, B A Morris, District Court Judge, issued a provisional warrant for the arrest of Martin Mailley, also known as James Martin Caldwell. The warrant issued in Australia for the arrest of Martin Mailley also known as James Martin Caldwell was endorsed on 30 March 2005 by W Tutt, District Court Judge. On 02 July 2008 Martin Mailley also known as James Martin Caldwell was arrested under the warrant in North Shore, Auckland, where the Court was requested to make a determination of eligibility for surrender. The Judge adjourned the hearing to the District Court at North Shore on 04 July 2008 pending a bail application. On 10 December 2008, Judge Wilson QC, District Court Judge, directed that the hearing of the extradition application be adjourned to 22 January 2009 at 10 am. I DIRECT YOU, THE SAID MEMBERS OF THE POLICE, TO DELIVER Martin Mailley also known as James Martin Caldwell to the Manager of Mt Eden Mens Prison; and I DIRECT YOU, THE SAID MANAGER, TORECEIVE Martin Mailley also known as James Martin Caldwell into custody and to detain him pending surrender to Australia, appearance in Court or discharge according to law.[12] Under the Judge's signature there was, in a smaller font, what was described as additional information, Mr Mailley's date of birth and the nature of the charges he faced, 'fraud and attempted fraud'. [13] In his application, dated 12 December 2008, for the writ of habeas corpus eventually granted Mr Mailley contended that both the endorsed warrant, and the warrants issued successively afterwards, were nullities. The principal deficiencies in the warrants of detention, which became the point of focus for John Hansen J, were that they relied wrongly on ss 26(1)(a), 28(2) and 46(1)(a) of the Extradition Act, they referred incorrectly to s 18 and they misdescribed the endorsed Queensland warrant as a provisional warrant issued under s 42. There was also an inaccuracy as to a date. Those deficiencies apart, Mr Ellis on Mr Mailley's behalf, mounted a wide ranging attack on those warrants and the endorsed warrant on at least three other fronts. [14] Mr Ellis challenged both the lawfulness and the admissibility of the Queensland warrant. One cause for challenge was that the police officer seeking to have that warrant endorsed in New Zealand had a vendetta against Mr Mailley. A second was that the warrant endorsed was not issued for an extradition offence. It was neither issued for the fraud charges, nor for failure to appear on those charges, but for Mr Mailley's failure to comply with terms of bail that he report to a police station and live at a particular address. This is an offence that does not exist in New Zealand. A third was that the New Zealand Police had no right, on behalf of the Queensland Police, to apply under s 41 to have endorsed a warrant issued in Australia by a Court exercising state jurisdiction. Only the Crown could apply under s 41 and then only on a request by the Commonwealth of Australia. [15] Counsel appearing for the General Manager, not then Mr Keith, contended in reply that it was only the consequence of the conceded deficiencies in the successive warrants of detention that was 'properly susceptible to fair and sensible summary determination'. It was argued that the other points taken were beyond the scope ofthat application, and to be advanced rather by appeal or review: Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 at [47] - [52] (CA) (Manuel (No 1). [16] As to the single issue on which counsel for the General Manager did reply, she submitted that there could be no question that the judges who issued the warrants had both the power and the grounds to do so. The warrants themselves, she submitted, were merely administrative. Any errors they contained were merely formal and were explicable, as there was no fully definitive prescribed form. The errors gave rise to no injustice and were capable of cure under s 204 of the Summary Proceedings Act 1957. [17] In granting the writ, John Hansen J accepted that last submission to this extent. He confined himself to the significance of the errors on the face of the 10 December 2008 warrant, and, implicitly, those in the warrants preceding. He did not, however, see any basis to go behind any of those warrants. They were, he held, the only record of any decision the issuing Judges had made. Their decisions stood or fell with the warrants. He regarded the errors in the last warrant, and those preceding, to be more than merely errors of form. He considered them all to be 'seriously flawed'. That in itself, he said, created a significant miscarriage of justice. It was the responsibility of the judges, who issued those warrants, to ensure that they reflected the decisions they had made. [18] On 18 December 2008, Mr Ellis invited John Hansen J, in the exercise of his discretion, to award indemnity costs on the basis that the application should never have gone to hearing. An affidavit had been filed by the Registrar admitting the errors on the face of the ultimate warrant. Mr Ellis submitted that it was obvious that Mr Mailley was always going to succeed on that ground alone. The Court's time was thus wasted. [19] The indemnity award of $22,000 that Mr Ellis invited John Hansen J to make was less, he told the Judge, than the costs that Mr Mailley had incurred. Mr Ellis's own costs, for eleven days at $300 per hour, had been $23,962.50, and made no allowance for the hearing. Mr Minchen had acted as solicitor. Mr Ellis sought$20,000 on account of his own costs and $2,000 on account of Mr Minchen. Mr Ellis made no claim for Mr Shaw, who had appeared as second counsel. [20] Counsel for the General Manager accepted that there should be an award of costs under s 14(4) of the Habeas Corpus Act 2001. She opposed an award of indemnity costs, submitting that the high threshold that r 48C(3) of the High Court Rules imposed had not been made out. While the application was important to Mr Mailley, it did not have general importance. But for the errors on the face of the warrants, which were administrative in character, Mr Mailley had been detained lawfully. The time and cost of the application lay with him. The only point taken for Mr Mailley that was capable of fair summary determination, according to theManuel (No 1) principle, related to the errors on the face of the warrants. An award consistent with five cases cited, including one in this Court, lay in the range $2,000 - $3,000. [21] John Hansen J held, however, that the definitive feature of the application for the purpose of an award of costs was that it concerned the liberty of the subject. The application had also been brought 'with some considerable urgency'. That finding did not lead him to award the indemnity costs claimed. In contrast to Priestley J inLyon v Manager, Hawkes Bay Prison HC AK CIV 2006-404-6680 10 May 2007, he considered that the Second Schedule of the High Court Rules did assist. He thought a scale 2B award too modest. He awarded scale 3C.Ability to appeal costs award[22] The General Manager appeals, relying on s 66 of the Judicature Act 1908 which provides:The Court of Appeal shall have jurisdiction and power to hear and determine appeals from any judgment, decree, or order save as hereinafter mentioned, of the High Court, subject to the provisions of this Act and to such rules and orders for regulating the terms and conditions on which such appeals shall be allowed as may be made pursuant to this Act.[23] Whether s 66 gives a right of appeal in this case is not to be resolved by recourse only to that section and the Judicature Act 1908. As this Court said inAssociation of Dispensing Opticians of New Zealand Inc v Opticians Board [2000] 1 NZLR 158 at [23] – [33], there are at least three exceptions to s 66 beyond those it creates itself. As to the first and most general exception, the Court stated at [25] that:[T]here are numerous cases where, because of the character of the decision sought to be appealed, the scheme of the relevant provisions of the statutes and rules and underlying policy considerations, particular decisions of the High Court have been held to fall outside the purposes of s 66.[24] An obvious instance, as this Court said in Comalco New Zealand Ltd v Television New Zealand Ltd [1997] NZAR 145, is where a statute both prescribes and limits the right of appeal and so to allow an appeal under s 66 would be incongruous. In Comalco, the Court found that s 66 was overridden by s 19 of the Broadcasting Act 1989, which made the decision of the High Court final. The Court held, at 146, that the interlocutory or ancillary decision in question was beyond appeal:[T]he legislative practice is not to graft exceptions on to s 66 but to specify in the particular later legislation any limitation to a right of appeal. There are many instances of this in practice. It would therefore be extraordinary, to say the least, if there were to be a right of appeal on an ancillary or interlocutory matter, yet no right of appeal against a substantive decision.[25] The Habeas Corpus Act 2001 is just such a modifying statute. Section 15 brings finality to a decision made under s 14(3), determining the application by either granting or refusing a writ. Under s 15(1), an applicant, whose application is denied, must look to his or her right of appeal under s 16 or to those conferred by ss 7 – 10 of the Supreme Court Act 2003. Section 15(1) provides that: the determination of an application is final and no further application can be made by any person either to the same or to a different Judge on grounds requiring a re-examination by the Court of substantially the same questions as those considered by the Court when the earlier application was refused.[26] Conversely, s 15(2) assures a successful applicant that he or she can rely on the finality of the writ granted unless, as s 15(3) says, his or her release resulted from a 'jurisdictional procedural defect that has been corrected or no longer applies'. Section 15(2) says:A person who has been released from detention in accordance with a writ of habeas corpus must not be re-arrested or detained again on substantially the same grounds as those considered by the Court when the earlier release was ordered.[27] Section 16, reflecting s 15, gives an asymmetrical right of appeal. Under s 16(1)(a) an unsuccessful applicant may appeal. There can, however, be no appeal from the issue of a writ 'unless the substantive issue is the welfare of a person under the age of 16 years': s 16(1)(b). [28] Section 14(4) confers, nevertheless, a seemingly general discretion as to costs, and one that is not dependent on the result of the application. Section 14(4) provides:All matters relating to the costs of and incidental to an application are in the discretion of the Court and the Court may refuse costs to a successful party or order a successful party to pay costs to an unsuccessful party.[29] The constraints on appeal that s 15 and 16 impose can only apply expressly to an award under s 14(4) if it is part of 'the determination of an application'. Both ss 15 and 16 focus only on the principal decision given under s 14(3). The issue remains, as was said in the Amcor case with regard to interlocutory or ancillary decisions, whether it would be incongruous for there to be a right of appeal as to costs where there is no right of appeal against the grant of the writ that led to the award being made. [30] Mr Keith, counsel for the General Manager, relies on Friends of Pakiri Beach v McCallum Bros Ltd [2008] 2 NZLR 649. There, this Court considered it had jurisdiction under s 66 to receive and decide an appeal against a costs order, even though a substantive appeal under the Resource Management Act 1991 required leave. It gave two reasons, the first being that an award of costs is ordinarily fully susceptible of appeal in its own right. As the Court said at [48]:Costs orders may be challenged and reversed on appeal in two different ways. First, they can be challenged directly and independently of the substantive decision to which they relate via an appeal under s 66 of the Judicature Act. Alternatively, and more commonly, a High Court costs order may be reviewed if the substantive decision to which it relates is overturned or varied.[31] More decisively, the Court added, at [49], that the subject matter of a costs award is distinct from that of the principal decision. It will be 'based on the proposition that costs have been wrongly determined under the High Court Rules costs regime'. That being so, the Court said at [50], 'whether the costs order is right or not has nothing to do with the Resource Management Act'. [32] In Hawthorne v Cox [2008] NZCA 146, however, which concerned an appeal against a refusal of costs where s 145(1) of the Care of Children Act 2004 made any substantive appeal subject to leave, this Court said at [15]:In terms of principle, it would be anomalous for there to be an automatic right of appeal against a discretionary costs order where an appeal against the substantive decision arises only with leave. Indeed, if there is an automatic right of appeal, it could arise in cases where there is no right of appeal at all from the High Court decision on the substantive matter. Further, costs appeals can in some cases involve a challenge to the findings of the High Court on the substantive appeal [33] In order to retain the benefit of s 66 Mr Keith seeks to distinguish Pakiri Beach and this case from Hawthorne. First, he contends, the right of appeal inHawthorne conferred by s 145 encompasses any 'order or decision of the High Court under the Act'. That and the constraints it then imposes on appeal may well exclude s 66. By contrast the right of appeal in point of law in Pakiri Beach under s 308 of the Resource Management Act, and that conferred by s 16 of the Habeas Corpus Act are confined to the principal decision. Neither excludes a right under s 66 to appeal an award of costs. Secondly, he contends, it would not be anomalous for there to be such a discrete right of appeal against the costs award under the Habeas Corpus Act. Such an appeal would not encroach on the finality of the principal decision. The grant of a writ is beyond appeal. An appeal against the denial of a writ calls for leave. But whichever is the case costs, and any related appeal, are separate and consequent. [34] Mr Keith's first point appears to us to turn on an accident of legislative language, and not on any underlying distinction of principle. We are unable to accept his second point. The costs award under appeal in this case is clearly distinguishable from that made in Pakiri Beach and that in Hawthorne. This award was not made under the High Court Rules. It was made under the Habeas CorpusAct. This means that the only way we could resolve whether the award made was right in principle is to set it against John Hansen J's principal decision. This cannot be done because that decision, as we say in the next section of this judgment, is beyond the scope of any appeal. [35] On this appeal we have no need to determine whether and to what extent that conclusion extends to any right of appeal against a costs award made under the High Court Rules, where there is no unqualified right to appeal the principal decision. There is also no need to determine whether Pakiri Beach is able to be reconciled with Hawthorne and, if they are not able to be reconciled, which is right in principle. These are matters for another day.[36] At the heart of this appeal, we consider, there are two questions to be resolved. Can there ever be an award of costs under the High Court rules that does not also engage the principal decision? If there can be such an award, ought there to be a right of appeal in that residual category when there can be no appeal against an award on the ground that it is inconsistent with the principal decision beyond appeal?Special costs regime[37] Appeals against awards of costs, as the Supreme Court said recently inShirley v Wairarapa District Health Board [2006] 3 NZLR 523, at [15], have always been confined to correcting patent error:[A]n appellate court should not interfere unless satisfied that the Judge who made the order acted on a wrong principle, or failed to take into account some relevant matter, or took account of some irrelevant matter, or was plainly wrong.[38] The Court went on to say, as importantly, at [16] that 'although the costs jurisdiction is discretionary, it is not unprincipled, or else it would be unacceptably arbitrary'. Highly germane to whether an award is principled or not is the costs regime under which it is made. It is no less germane, therefore, that the costs regime in the Habeas Corpus Act is not to be equated with that in the High Court Rules. It is founded on a different principle and is, by contrast, widely expressed.[39] The general discretion to award costs conferred by s 14(4) excludes immediately the cardinal principle, embodied in the High Court Rules, that costs normally follow the event. As Anderson and Robertson JJ said in Manuel v Superintendent of Hawkes Bay Regional Prison [2006] 2 NZLR 63 at [32] (CA) (Manuel (No 2), this principle is of 'particular significance'. It underpins 'the authority and crucial importance of the great writ and the protection of liberty'. It has, as they said at [34], this obvious reason, 'money barriers' should not impede this 'avenue of freedom'. It is no accident that an application attracts no filing fee: s 7(6). Or that on an appeal s 16(2) rules out any order for security for costs against an applicant, who appeals, where the Crown or a public officer is respondent. Or that s 16(3) also dispenses with any fee on the appeal. [40] We consider that this distinctive feature of the discretion given as to costs supports the principle on which John Hansen J elected to award near indemnity costs, despite the fact, as Mr Keith points out, that relatively modest awards have been made thus far: Lyon; Palmer v Superintendent, Auckland Prison (2006) 18 PRNZ 261 (HC); Chu v Director of Area Mental Health, Wellington [2007] NZAR 415 (HC); Manuel v Superintendent, Hawkes Bay Regional Prison HC WN CIV 2004-485-566, 20 August 2004. [41] In two of those four cases, Lyon and Palmer, the application was dismissed and the award made in favour of the respondent. In the other two, Chu and Manuel, the application was withdrawn because it was no longer needed and, while the award was in favour of the applicant, the respondent had acted with propriety. Each of these decisions is intelligible, when set against s 14(4). None purport to exclude an indemnity award where an applicant succeeds on the merits, or in any other proper case. [42] In that assessment, the High Court Rules costs regime has no direct part to play. Those rules do not govern an application for habeas corpus. While s 21 of the Habeas Corpus Act may import them where 'a matter arises in relation to an application for which this Act does not provide', that is only so far as is consistent with the Act. Moreover, s 7 prescribes how a writ is to be applied for. It gives first place to the grant of swift relief. An application must be made by originatingapplication: s 7(1). But an application may be made orally in a case of unusual urgency: s 7(2). The rules applying before a hearing do not apply: s 7(3). Those as to discovery have no place: s 7(5). The High Court Rules are not paramount: s 7(7). [43] Like Priestley J, in the Lyon case at [13] (and in contrast to John Hansen J), we see s 14(4) as conferring a 'broad discretion' to which the Second Schedule of the High Court Rules has no sensible application. Indeed Palmer, where Venning J did apply the High Court Rules scale, illustrates just how limited its application actually is. Moreover, as Mr Keith says, the High Court Rules scale costs regime assumes, in the allowances it makes, that the burden lies on the plaintiff or applicant. By contrast, on a habeas corpus application, s 14(1) imposes a reverse onus to be discharged rapidly. That does not mean that any award in favour of the applicant should be cut back on that basis alone. It is, however, a reason for pause and there is another that is more basic. [44] An award of costs, whether or not habeas corpus is granted, must always bear some sensible proportion to the weight of the argument mounted for the applicant. Accordingly, a distinction must be made between those points with merit and those without, while allowing for the reality that whether a point lies to one side of that divide or the other cannot always be discerned clearly beforehand. As the European Court said when deciding this vexed issue of scope in Sunday Times v United Kingdom (Article 50) (1980) (1981) 3 E.H.R.R. 317 at [28]:[A] lawyer has a duty to present his client's case as fully and ably as he can and it can never be predicted with certainty what weight a tribunal may attach to this or that plea, provided that it is not manifestly otiose or invalid.[45] Manuel (No 1) brings home, moreover, that there can be no bright line between what is relevant and what is not. There, this Court accepted, at [46], that an application can extend beyond 'jurisdictional inquiry' to the 'administrative decision which underpins the legality of the applicant's detention.' But, it said at [47], only insofar as any point taken can be resolved summarily and always remembering that any finding of unlawfulness is unappealable. There can be no injustice in reserving 'administrative law challenges not susceptible to fair summary determination for judicial review'. The Court, at [49], said this: it will be a rare case, we think, where the habeas corpus procedures will permit the Court to inquire into challenges on administrative law grounds to decisions which lie upstream of apparently regular warrants. This is particularly likely to be the case where the decision maker is not the detaining party. [W]e see the test as coming down to whether the arguments in issue are properly susceptible to fair and sensible summary determination.[46] The result has to be that the Judge who hears the application must, when making any award, set what costs are proper against his or her principal decision. There is no other measure. Nor can there be any formulaic approach to what costs are proper, even where applications are successful. [47] In one case the Judge may consider the application has been brought responsibly, has merit, and rests only on grounds proper to the writ. In another the Judge may, though granting the application, consider it unduly complicated by grounds that lack merit or that ought only ever to have been advanced by way of review. An indemnity award may be proper in the former case. In the latter a significantly lesser award may be proper. Where an application is denied, but the applicant seeks costs, the issues are likely to be even more vexed. [48] It follows also, to return to the essential question, that an appeal under the Habeas Corpus Act, in contrast perhaps to one made under the High Court Rules, cannot be disentangled from the principal decision given. And, if there can be no appeal against the principal decision, this Court cannot begin to embark on a review of the costs award. Moreover, where a judge grants an application on one ground only, as John Hansen J did in this case, there will always be an issue as to what merit the other grounds advanced had and what weight they deserved if any. Such a decision is even less susceptible of review.Conclusions[49] On this appeal, to recapitulate, we are not required to decide whether any constraint on the ability to appeal a principal decision to this Court extends generally to any related award of costs. Even assuming in principle that it does not, and need not, we consider that under the Habeas Corpus Act, at least where a writ is granted,any appeal against a related award of costs could not help but trespass on the principal decision beyond appeal. That tells against an award of costs attracting any independent right of appeal. [50] That apart, in deciding to award near indemnity costs, by recourse to scale 3C of the High Court Rules, John Hansen J made, we consider, no error of principle. He could, had he chosen, have awarded indemnity costs on the principle he identified, to secure the liberty of the subject. That scale 3C had no literal application involved no error. He did not hold it to apply literally. He fixed on it as a measure to make clear that, though he was not awarding indemnity costs, he was awarding a near indemnity. [51] Finally, the award in excess of $30,000 that Mr Mailley now claims by recourse to scale 3C is irreconcilable with the award made. Whatever Mr Mailley's actual costs were, he claimed $22,000 on an explicit basis and John Hansen J, by recourse to scale 3C, mistakenly appears to have thought that he was granting him a lesser award.Result[52] The result remains that this appeal must be dismissed for want of jurisdiction. The General Manager's only recourse is by way of an application for recall to the High Court. There will be no award of costs.Solicitors: Crown Law Office, Wellington