Mandatory retirement provision in partnership agreement upheld by UK Supreme Court
By Darise Bennington

A partnership agreement setting out a compulsory retirement age of 65 will not necessarily be in breach of age discrimination laws, the Supreme Court of the United Kingdom has held in Seldon v Clarkson Wright and Jakes (A Partnership) [2012] UKSC 16 (25 April 2011). In a decision given on behalf of the majority, dismissing the appeal, Lady Hale found that where the aims of supposedly discriminatory measures have social policy objectives, age discrimination may be justified.

The Supreme Court found the following three policy objectives were legitimate reasons for justifying a clause in a partnership agreement requiring a law firm partner to retire at 65:

• Ensuring that associates are given the opportunity of partnership after a reasonable period as an associate, thereby ensuring that associates do not leave the firm;
• Facilitating the planning of the partnership and workforce across individual departments by having a realistic long-term expectation as to when vacancies will arise; and
• Limiting the need to expel partners by way of performance management, thus contributing to a congenial and supportive culture in the Respondent firm.

Subject to such a provision was Mr Seldon, a partner in Clarkson Wright and Jakes, who joined the firm in 1971, became an equity partner in 1972, and managing partner from 1989 to 1993, and who turned 65 on 15 January 2006. 

Next steps on fiscal responsibility - a spending cap for New Zealand?

Finance Minister the Honourable Bill English announced in his 26 April 2012 speech to the Wellington Employers’ Chamber of Commerce that the Government would look to amend the Public Finance Act 1989, to require Governments to:

• Consider the impact of their fiscal strategy on the broader economy, in particular interest rates and exchange rates;
• Set out their priorities for revenue, spending, and the balance sheet;
• Take into account the impact of fiscal policy decisions on future generations; and
• Report on successes and failures of past fiscal policy.

English also announced plans to introduce a legislated spending cap, as part of the National Government’s 2011 confidence and supply agreement with ACT. What is a legislated spending cap, what would it mean in practice, and what are the constitutional issues such a measure presents? 

The price a lawyer may have to pay for acting for an "unreliable" client

A lawyer whose “primary focus has been as a specialist in the law of trusts and tax” has been ordered to pay the losses that resulted from services that he gave to a trustee who was “neither a trustworthy nor reliable person”, in Fletcher v Eden Refuge Trust [2012] NZCA 124 (30 March 2012).

At the time he acted for the trustee, the lawyer had “serious concerns about [the trustee’s] intentions, honesty and reliability”.

The lawyer was held to have committed the wrong of “dishonest assistance”, and it is the Court of Appeal’s statements about “dishonest assistance” that make this case important reading for lawyers and, incidentally, accountants and other consultants.

If a lawyer has actual knowledge of a client’s dishonesty, he or she will, in general, commit the wrong of “dishonest assistance” if he or she facilitates a transaction that causes loss to an innocent person(s). 

LOCAL GOVERNMENT
Better Local Government
By Dr Grant Hewison, special counsel, Kensington Swan

The topic of local government legislative reform has become a recurrent theme in New Zealand.

The establishment of the Auckland Council necessitated the passage of three major statutes as well as several regulations and Orders in Council for that region. There has also been significant reform in the Canterbury region, with two major statutes being passed and several Orders in Council. In addition, the ‘Transparency, Accountability and Financial Management’ (TAFM) reforms promoted by the Honourable Rodney Hide in 2010 resulted in significant amendments to the Local Government Act 2002 (LGA). Not to mention the 2009 amendments to the Resource Management Act 1991 (RMA), and proposals for the Land Transport Management Act 2003 (LTMA).

RULE OF LAW
Lord Sumption and the Rule of Law?
By E W Thomas

Sir Stephen Sedley has beaten me to the punch. I was in the course of completing a critique of a lecture by the newly appointed member of the Supreme Court of the United Kingdom, Jonathan Sumption QC, when a brilliant article by Sedley relating to the same address appeared in the London Review of Books (“Judicial Politics: Stephen Sedley on the Separation of Powers”, 34 (4), 23 February 2012, at 15).

Lord Sumption was appointed to the Supreme Court on 4 May last year. His appointment was to take effect at a date to be agreed. He was finally sworn in on 11 January this year. His address, the prestigious F A Mann Lecture, was given in the interim on 9 November 2011.

CYBER BULLYING
Standing up to (cyber) bullies
NetSafe Executive Director Martin Cocker speaks with Craig Sisterson about the insidious dangers of cyber bullying in the workplace

People use technology to bully and harass each other a remarkable amount, says Martin Cocker, Executive Director of NetSafe, an independent non-profit organisation focused on educating and helping New Zealanders to use technology safely and responsibly. “The majority issue we face is bullying and harassment.” And while it seems there is often plenty in the media about cyber bullying amongst teenagers, and the potentially awful effects of such activities, it’s not just those at school that are at danger from cyber bullies. “I think there’s a growing understanding of how much bullying there is generally,” says Cocker. “Workplaces have their own modes of bullying, and technology is definitely a tool people use. They use it to exclude other people, to isolate other people in the workplace. It is a common issue, and definitely not something that is confined to children.”