100%(1)1 out of 1 people found this document helpful
This preview shows page 15 - 17 out of 24 pages.
establishes that the purpose of punitive damage is not confined merely to punishment or deterrence, but also appeasement of the plaintiff to assuage any urge for revenge, and to make the court’s denunciation of the behaviour. All of these, say Spiegelman, are public issues that DON’T INVOLVE a balancing act inter partes(between parties) and hence, he thinks that punitive damages should not be awarded.Spigelman CJ believes the appeal should be allowed.Mason P:Cites Viscount Haldane’s speech in Nocton v Lord Ashburtonand exposes the error of restricting equity’s capacity to award compensation for infringement of a right recognised in the pre-Judicature Act era. Claims that the ability of equity to offer different remedies is expansive - he claims that the idea that equity is supposed to be compensatory rather thanpunitive, the cited cases don’t stand in the way to award exemplary damages. He thus disagrees with Spigelman CJ and decides that the fusion fallacy itself is false - he claims that both equity and common law had adequate powers to adopt and adapt concepts from each other’s system before the passing of the Judicature Act. The ideas and principles of equity are not so superior to common law concepts that equity can’t pick from common law ideas. His honour also says that distinctions with nothing but history to support them have often been weeded out. Identifies that the appellants are saying that equity cannot be about punishment whatsoever - he claims that equity reveals itself readier to punish if actions were deliberate or motivated by greed. As an example of this,
he cites the fact that there are alternative remedies - there are a hierarchy of remedies involved in equity, this solidifying its punitive / deterrent potential. There is a larger similarity between fiduciary duties and contractual relationships. He claims that equity intervened in the first place because of such dogmatism- why would it stand back andlet a similar thing happen here, based on something so trivial? Mason P believes the appeal should be dismissed.Heydon JA:His honour disagrees with Mason P but still thinks the idea may be a ‘distraction, not a difference’. His honour acknowledges that the trial law was correct when claiming that he was essentially creating new law upon his decision - he now claims that doing this is a radical step that may affect the operation of legal regimes established by statute. His honour then concludes by saying that the proposition has no English or Australian legal support and so should not be changed. Heydon JA believes the appeal should be allowed.iii Day v Mead 2 NZLR 443FactsMead was Day’s solicitor and bought shares in Pacific Mills on Mead’s advice. Day took anactive interest in the company Day ought more shares after being advised to do so.