COMPULSORY ASSIGNMENT 'In Harris v Digital Pulse Pty Ltd XXXXXXXXXXNSWLR 298, the majority judges (Spigelman CJ and Heydon JA) got it wrong and Mason P got it right'. Do you agree? Note: In...

HARRIS V. DIGITAL PULSE PTY. LTD.: REASONING IN THE THREE JUDGEMENTS
In this particular case, the three judges argued on the fact that the exemplary damages in Australian law were not available in equity. SC of New South Wales granted exemplary damages which gave rise to 2 main issues:
· Is it possible to award exemplary damages in Court?
· Did the NSW Court have the required jurisdiction to alter the law, ahead of HC and the Court of legislature?
Mason P agreed with the principle followed by New Zealand and Canadian courts, which have awarded exemplary damages and answered to these 2 questions in an affirmative, while Heydon JA did not agree to this decision of Mason P. The 2 issues have outlined the reasoning of each judge.
Mason P argued that a Court of equity has the power to develop new remedies where in an exclusive jurisdiction, available remedies are insufficient. He pointed out the remedies of estoppel, Mareva injunction, other injunctions and Anton Piller orders in order to illustrate the equity flexibility[footnoteRef:1]. His main contention was that if a society is in need of remedies for the fair and just treatment, the flexible nature of equity can help law to meet the requirements in modern times for the settlement of disputes. [1: Harris V. Digital Pulse Pty. Ltd., 2003]
Heydon JA argued that the equitable doctrines and common law did not fuse under Judicature Act. He held that the remedy of common law regarding exemplary damages is unavailable in case of equity and he moves this argument a step ahead. He denied the ability of equity with regard to the adoption of common law remedy for exemplary damages and implied that there is neither a fusion on enactment of Judicature Act nor a fusion in common law and equitable remedies could occur after the enactment of the Act of Judicature. He is basically suggested that as there lays no link between the doctrines in the history; the remedies would not be able to get fused in the future ahead.
He had to deal with refuting the ratios of a number of common law countries which had a ruling otherwise because of his precludement of ‘fusion fallacy’. He relied on the Jurisprudence of New Zealand and argued that in the Aquaculture Corp. Case and McKaskell V. Benseman, the judges had a presumption that a full-fledged fusion of the doctrines had occurred under the Judicature Act[footnoteRef:2]. He criticized as the two judges failed to provide any conclusion on such a presumption. He even claimed that equity and common law were fused under the Act and was never accepted in Australia, to forward his opposition. [2: Harris V. Digital Pulse Pty Ltd (2003) NSWCA 10, (357).]
He approached Canadian Jurisprudence and argued that McLachlin J. contradicted herself in Norberg V. Wynrib. Heydon JA noted that McLachlin J.’s idea stating that equity, torts or contracts comprise of different laws and it moved on to form remedy of common law for an equitable wrong. He claimed it as a classic case of law made by judges. He was a legalist so he objected to this reasoning. He stated that ‘in a nutshell’, McLachlin J. argued that it would have...