Legal Research
Cases
Haureliuk v Furler

Haureliuk v Furler

Case [2012] ACTCA 11 29 February 2012

Appeal

Costs

Statutory Construction

Damages

Statutory Interpretation

Civil Procedure

Type to search within this case.

MARK HAURELIUK v BOEN JAMES FURLER
[2012] ACTCA 11 (29 FEBRUARY 2012)

STATUTORY INTERPRETATION – construction of s 144(2) of the Road Transport (Third-Party Insurance) Act 2008 (ACT) – whether damages for pain and suffering excluded from amount of “mandatory final offer” when considering award of costs under s 144 of the Act – principles of statutory construction – when extrinsic material may be relied upon in process of statutory construction.

Held: The appeal should be dismissed with costs. In the absence of ambiguity or uncertainty in the interpretation of s 144(2) of the Act, reference to surrounding provisions and extrinsic material was unnecessary. The “mandatory final offer” referred to in s 144(2) is not to be reduced by the amount identified as damages for pain and suffering when determining costs.

Acts Interpretation Act 1901 (Cth)
Interpretation of Legislation Act 1984 (Vic)
Legislation Act 2001 (ACT)
Migration Act 1958 (Cth)
Road Transport (Third-Party Insurance) Act 2008 (ACT)
Road Transport (Third-Party Insurance) Regulation 2008 (ACT)

Alcan (NT) Alumina Pty Ltd v Territory Revenue (2009) 239 CLR 27
Casey v Alcock (2009) 3 ACTLR 1
Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
Griffiths v Kirkemeyer (1977) 139 CLR 161
Harrison v Melhem (2008) 72 NSWLR 380
Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642
Newcastle City Council v GIO General Ltd (t/as GIO Australia) (1997) 191 CLR 85
Paff v Speed (1961) 105 CLR 549
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
R v Abdulla (2005) 93 SASR 208
R v Young (1999) 46 NSWLR 681
Re Bolton; Ex parte Beane (1987) 162 CLR 514
Wentworth Securities v Jones [1980] AC 74

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 4 of 2011
No. SC 691 of 2010

Judges: Refshauge, Burns and Besanko JJ
Court of Appeal of the Australian Capital Territory
Date: 29 February 2012

IN THE SUPREME COURT OF THE     )          No. ACTCA 4 of 2011
  )          No. SC 691 of 2010
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL )

ON APPEAL FROM A MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: Mark Haureliuk
Appellant

AND: Boen James Furler
Respondent

ORDER

Judges:  Refshauge, Burns and Besanko JJ
Date:  29 February 2012
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be dismissed.

That the appellant pay the respondent’s costs of the appeal.

IN THE SUPREME COURT OF THE     )          No. ACTCA 4 of 2011
  )          No. SC 691 of 2010
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL )

ON APPEAL FROM A MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: Mark Haureliuk
Appellant

AND: Boen James Furler
Respondent

Judges:  Refshauge, Burns and Besanko JJ
Date:  29 February 2012
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT

This is an appeal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Haureliuk v Furler

Details

AGLC: Haureliuk v Furler [2012] ACTCA 11
Case: [2012] ACTCA 11
Decision Date: February 29, 2012

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory heard an appeal concerning the interpretation of section 144(2) of the *Road Transport (Third-Party Insurance) Act 2008* (ACT). The dispute centred on whether damages awarded for pain and suffering should be excluded from the calculation of a "mandatory final offer" when determining an award of costs under section 144 of the Act.

The primary legal issue before the Court was the proper construction of section 144(2) of the Act, specifically whether the phrase "amount of the mandatory final offer" encompassed damages for pain and suffering. This involved considering the principles of statutory interpretation, including the circumstances under which extrinsic material may be used to aid in construing legislation.

The Court reasoned that the plain language of section 144(2) did not support the exclusion of pain and suffering damages from the calculation of the mandatory final offer. It applied established principles of statutory construction, finding no ambiguity in the provision that would necessitate recourse to extrinsic materials. The Court concluded that the Act intended for all components of a settlement offer, including pain and suffering damages, to be considered when assessing costs under section 144.

Consequently, the appeal was dismissed.

Orders

Orders of the court

The appeal be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Haureliuk v Furler [2012] ACTCA 11

Most Recent Citation

Singh v Rodden [2013] ACTSC 272

Cases citing this decision · 16 of 16 shown

Australian Turf Club Ltd and Commissioner of Taxation (Taxation)
[2024] AATA 2728 Para 27

…In Haureliuk v Furler [2012] ACTCA 11; 6 ACTLR 151 , it was said of Spigelman J that he: [27] Spigelman CJ expressed what he considered the relevant principle to be that words are not inserted to perfect the intention of Parliament; rather, the actual words are construed to conform with the intention, where they m…
Illawarra Turf Club Ltd and Commissioner of Taxation (Taxation)
[2024] AATA 2727 Para 26

…In Haureliuk v Furler [2012] ACTCA 11; 6 ACTLR 151, it was said of Spigelman J that he : [27] Spigelman CJ expressed what he considered the relevant principle to be that words are not inserted to perfect the intention of Parliament; rather, the actual words are construed to conform with the intention, where they m…
Grenfell Jockey Club Limited (Taxation)
[2024] AATA 2730 Para 26

…In Haureliuk v Furler [2012] ACTCA 11; 6 ACTLR 151, it was said of Spigelman J that he: Spigelman CJ expressed what he considered the relevant principle to be that words are not inserted to perfect the intention of Parliament; rather, the actual words are construed to conform with the intention, where they may rea…
Clarence River Jockey Club Ltd and Commissioner of Taxation (Taxation)
[2024] AATA 2729 Para 26

…In Haureliuk v Furler [2012] ACTCA 11; 6 ACTLR 151, it was said of Spigelman J that he : [27] Spigelman CJ expressed what he considered the relevant principle to be that words are not inserted to perfect the intention of Parliament; rather, the actual words are construed to conform with the intention, where they m…
Armidale Jockey Club and Commissioner of Taxation (Taxation)
[2024] AATA 2726 Para 26

…In Haureliuk v Furler [2012] ACTCA 11; 6 ACTLR 151 , it was said of Spigelman J that he: [27] Spigelman CJ expressed what he considered the relevant principle to be that words are not inserted to perfect the intention of Parliament; rather, the actual words are construed to conform with the intention, where they m…
In the matter of an adoption of QS (No 2)
[2021] ACTSC 107 Para 1

…the terms of the Legislation Act , for the reasons given by Gleeson CJ in Qld v AIRC at 493, set out at [18] of these reasons. In Haureliuk v Furler [2012] ACTCA 11; 6 ACTLR 151 ( Haureliuk ) Refshauge, Burns and Besanko JJ provided a succinct summary of the Court’s task at [19] (emphasis added):…
SX v NT
[2020] ACTMC 20 Para 1

…nsider the context and, in particular, the mischief the Act is intended to cure: see the Legislation Act 2001 , ss 138 and 139 and Haureliuk v Furler [2012] ACTCA 11 at [19] – [30]. In this case there is no need to go to any extrinsic materials to ascertain that intent, as the objects of the Act and how those obje…
Ryrie v Tanner (No 3)
[2020] ACTSC 223 Para 1

…In Haureliuk v Furler [2012] ACTCA 11; 6 ACTLR 151, the Court considered the proper construction of the expression “mandatory final offer” in s 144(2) of the TPI Act as it then was. The insurer had served a “mandatory final offer” of $85,000 “plus costs”, and stated that the sum of $85,000 was “broken down” as “$4…
Moloney v Zhu
[2020] ACTMC 3 Para 1

…ases of judgments entered into by consent. In doing so he applied the various principles of statutory interpretation summarised in Haureliuk v Furler [2012] ACTCA 11; 6 ACTLR 151 at [19] – [30] by considering the context and purpose of the legislation.…
Director-General Community Services Directorate v HJ
[2018] ACTSC 6 Para 1

…That possibility was rejected by Besanko J in Casey at [100]-[101]. The Court of Appeal in Haureliuk v Furler [2012] ACTCA 11; 6 ACTLR 151 similarly referred to the distinction in the wording of the provisions at [20]-[21], stating that the important point is that the Court is not authorised to rewrite legislation…
Albrecht v Insurance Australia Ltd
[2016] ACTCA 58 Para 1

…f the word “part” appears to have been in error, it is not open to the Court to rewrite the text of the statute: Haureliuk v Furler [2012] ACTCA 11; (2012) 6 ACTLR 151 ( Haureliuk ) at 159-160 [21].…
Insurance Australia Limited v Albrecht
[2015] ACTSC 68 Para 1

…In Haureliuk v Furler [2012] ACTCA 11 the Court of Appeal held that the reference to the amount of the mandatory final offer in s 144 was a reference to an amount that included any component of general damages. In other words, s 144 could not be read so as to give it an effect consistent with s 155, which expressl…
Hammond v Commissioner for Act Revenue
[2015] ACAT 12

…or ACT Revenue [1996] ACTAAT 134 Flaherty v Girgis (1987) 162 CLR 574 Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56 Haureliuk v Furler [2012] ACTCA 11 Hedley Commercial Property Services P/L v BRCP Oasis Land P/L [2009] QCA 231 Kozman v Chief Commissioner of State Revenue [2013] NSWADT 143 Leichhard…
Graham Cooper v Nigel Hill
[2014] ACTSC 94 Para 1

…The Court of Appeal has had occasion, in a number of decisions, to consider the appropriate approach to statutory construction. In Haureliuk v Furler [2012] ACTCA 11 at [21], the Court, after considering the Legislation Act 2001 (ACT), noted that “[t]he important point is that the Court is not authorised to re-wri…
Singh v Rodden
[2013] ACTSC 272 Para 1

…s to how the question should be considered and the matters which should be taken into account, although there was a passing reference to the issue in Furler v Haureliuk (2010) 4 ACTLR 230 at 232; [6].…
BUTT & ACT PLANNING and LAND AUTHORITY & ACT HERITAGE COUNCIL (Administrative Review)
[2012] ACAT 69 Para 8

…to ensure that if a development proposal evolves it may be properly captured by an amended development approval. [25] Section 139 Legislation Act; Haureliuk v Furler (2012) 6 ACTLR 151…

View all 16 citing cases →

Cases cited in this decision · 19 of 19 shown

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue
[2009] HCA 41 Para 1

…In Alcan (NT) Alumina Pty Ltd v Territory Revenue (2009) 239 CLR 27, Hayne, Heydon, Crennan and Kiefel JJ said (at 46–47 [47]):…
Minister for Immigration and Citizenship v SZJGV
[2009] HCA 40 Para 1

…In Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642, French CJ and Bell J adopted a construction of s 91R(3) of the Migration Act 1958 (Cth) which overcame an obvious drafting error and avoided an absurd result (at 653 [12]).…
Casey v Alcock
[2009] ACTCA 1 Para 1

…In Casey v Alcock (2009) 3 ACTLR 1 at 20–21 [103] Besanko J said:…
Harrison v Melhem
[2008] NSWCA 67 Para 1

…es in which that was impermissible and he referred to the reasons for judgment of Spigelman CJ in R v Young (1999) 46 NSWLR 681 and Harrison v Melhem (2008) 72 NSWLR 380.…
R v Abdulla
[2005] SASC 399 Para 1

…in extrinsic material are rarely of any use other than as identifying the purpose of the Act or mischief it is designed to remedy: R v Abdulla (2005) 93 SASR 208 at 226 [75]; Harrison v Melhem (2008) 72 NSWLR 380 at 384 [12]–[14] per Spigelman CJ at 400 [168]–[170] per Mason P with whom Beazley JA and Giles JA at 40…
R v Young
[1999] NSWCCA 275 Para 1

…Court to insert words into a section in circumstances in which that was impermissible and he referred to the reasons for judgment of Spigelman CJ in R v Young (1999) 46 NSWLR 681 and Harrison v Melhem (2008) 72 NSWLR 380.…
Project Blue Sky Inc v Australian Broadcasting Authority
[1998] HCA 53

…Council v GIO General Ltd (t/as GIO Australia) (1997) 191 CLR 85 Paff v Speed (1961) 105 CLR 549 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 R v Abdulla (2005) 93 SASR 208 R v Young (1999) 46 NSWLR 681 Re Bolton; Ex parte Beane (1987) 162 CLR 514 Wentworth Securities v Jones [1980] AC 74…
Newcastle City Council v GIO General Ltd
[1997] HCA 53 Para 1

…ton; Ex parte Beane (1987) 162 CLR 514 at 517–518 per Mason CJ, Wilson and Dawson JJ; Newcastle City Council v GIO General Ltd (t/as GIO Australia) (1997) 191 CLR 85 at 113 per McHugh J; R v Young 46 NSWLR at 690–691 [33]–[35] per Spigelman CJ. Statements of intention in extrinsic material are rarely of any use othe…
CIC Insurance Ltd v Bankstown Football Club Ltd
[1997] HCA 2 Para 1

…As far as the principles governing the use of extrinsic material are concerned, we start with CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384. In a well-known passage, Brennan CJ, Dawson, Toohey and Gummow JJ said (at 408):…
Chugg v Pacific Dunlop Ltd
[1990] HCA 41 Para 1

…In Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 Dawson, Toohey and Gaudron JJ (at 261-262) noted the difference between an interpretation provision that said “a construction that would promote that purpose or object [of the Act] … shall be preferred to a construction that would not promote that purpose or object” (i…
Mills v Meeking
[1990] HCA 6

…on in s 138 ‘(b) confirming or displacing the apparent meaning of the Act’ and from the reasons for judgment of Dawson J in Mills v Meeking (1990) 169 CLR 214 at 235. Neither s 139 nor s 15AA of the Commonwealth Act authorises a court to rewrite legislation and the construction adopted must be one which is open havin…
Re Bolton; Ex parte Beane
[1987] HCA 12 Para 1

…person when the result cannot reasonably be deduced from the words actually used by a recognised technique of construction: Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 517–518 per Mason CJ, Wilson and Dawson JJ; Newcastle City Council v GIO General Ltd (t/as GIO Australia) (1997) 191 CLR 85 at 113 per McHugh J; R…
Griffiths v Kerkemeyer
[1977] HCA 45 Para 1

…the difference between pain and suffering and general damages: Paff v Speed (1961) 105 CLR 549 at 559 per Fullagar J (see also Griffiths v Kirkemeyer (1977) 139 CLR 161 at 179 per Stephen J). In the Regulatory Impact Statement for the Regulation dated 20 August 2008 the following appears:…
Paff v Speed
[1961] HCA 14 Para 1

…The author of that Statement does not appear to have been aware of the difference between pain and suffering and general damages: Paff v Speed (1961) 105 CLR 549 at 559 per Fullagar J (see also Griffiths v Kirkemeyer (1977) 139 CLR 161 at 179 per Stephen J). In the Regulatory Impact Statement for the Regulation dated…
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation
[1981] HCA 26 Para 1

…In Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, Gibbs CJ (at 304–5) said that words in a statute were to be given their ordinary meaning unless that led to an irrational result, such that it could be concluded that the draftsman had made a mistake. The position was differ…
[1980] AC 74
[1980] AC 74 Para 1

…n as if it contained additional words. The Chief Justice referred with approval to the approach taken by Lord Diplock in Wentworth Securities v Jones [1980] AC 74 at 105–106 as follows:…
Residual Assco Group Ltd v Spalvins
148 F 2d 737

…tralian Broadcasting Authority (1998) 194 CLR 355 at 381 [69]. The courts no longer ‘make a fortress out of the dictionary’: Cabell v Markham 148 F 2d 737 (1945) at 739, per Learned Hand J. Putting to one side obvious typographical errors (see Bennion, Statutory Interpretation: A Code , 3rd ed (1997) Butterwort…
Pty Ltd v Federal Commissioner of Taxation
381 US 479 Para 1

…In Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, Gibbs CJ (at 304–5) said that words in a statute were to be given their ordinary meaning unless that led to an irrational result, such that it could be concluded that the draftsman had made a mistake. The position was different, the Chief Justice said, in…
Project Blue Sky v Australian Broadcasting Authority
(1998) 194 CLR 255

…itizenship v SZJGV (2009) 238 CLR 642 Newcastle City Council v GIO General Ltd (t/as GIO Australia) (1997) 191 CLR 85 Paff v Speed (1961) 105 CLR 549 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 R v Abdulla (2005) 93 SASR 208 R v Young (1999) 46 NSWLR 681 Re Bolton; Ex parte Beane (1987) 162 CLR 514 Wentworth Securities v Jones [1…

Legislation cited in this decision · 6

Acts Interpretation Act 1901 (Cth)
15AA) 2 mentions (from Para 1)
Interpretation of Legislation Act 1984 (Vic)
35(a) 2 mentions (from Para 1)
Road Transport (Third-Party Insurance) Act 2008 (ACT)
2 mentions (from Para 1)
Civil Law (Wrongs) Act 2002 (ACT)
1 mention
Legislation Act 2001 (ACT)
1 mention (from Para 1)
Migration Act 1958 (Cth)
1 mention (from Para 1)