Judge who presided over landmark tikanga ruling in Takamore burial case, has died

Justice John Fogarty, once a Queen's Counsel, during his swearing-in as a judge of the High Court in 2003 (left) and in later years. Photo / Supplied

A judge who made a landmark ruling highlighting the conflicts between English common law and tikanga Māori, has died.

Justice John Fogarty died over the weekend after after almost five decades in law, including serving 14 years on the bench.

Perhaps his most well-known case was his ruling in favour of the widow of James Takamore to bury her husband’s body in Christchurch, which Takamore had wanted.

However, this meant disinterring him from his original burial place in the Bay of Plenty where family members had taken his body in a van after his tangi.

In this case English common law - or the law made by Parliament and enacted by the courts - said that the executor of a person’s will had the right to decide what happens to the body. In this case that was his widow.

But Ngāi Tūhoe custom requires that the bodies of those belonging to the iwi be returned to their family urupa - in Takamore’s case this was in the Bay of Plenty.

Judge Fogarty said in 2009 there was no doubt that the Takamore’s whānau could, if they had the support of other members of Tūhoe, return the body of Takamore to his partner Denise Clarke despite the grief it would cause to his mother and sister.

Police attended the burial but didn’t attempt to stop it, despite a court-ordered injunction.

Several years later an appeal against Fogarty’s decision by Takamore’s family was dismissed by the Supreme Court.

Chief Justice Dame Helen Winkelmann paid tribute to Justice Fogarty today, saying he would be missed by his many friends and colleagues in the judiciary and in the law profession.

“John brought to the bench a broad and deep knowledge of the law. As a lawyer, and then as a judge, he worked selflessly for a just outcome,” she said.

“He was a man of unfailing courtesy – his colleagues on the bench remember his courtesy to them, to counsel, and to litigants.

“He was also a kind, humble and elegant man – elegant in his style, in his thinking and in his writing.”

Justice Fogarty graduated from the University of Canterbury with an LLB (Hons) in 1971, before studying at the University of Toronto where he graduated with an LLM in 1974.

He then joined Weston Ward & Lascelles, becoming a partner in that firm in 1978 and practised as barrister sole from 1985. He was appointed a Queen’s Counsel in 1990, now known as a King’s Counsel [KC].

As a barrister he developed an extensive public law (including competition law) and commercial practice, appearing in many of the leading cases in those areas, Dame Helen said.

He also worked as a mediator and arbitrator.

Justice Fogarty was appointed as a Judge of the High Court in 2003, sitting in Christchurch.

He was the Civil List Judge for Christchurch in 2013, and was also a member of the criminal and civil division of the Court of Appeal between 2007 and 2015.

From 2014, he sat in the High Court at Auckland and retired from the bench in 2017.

During his 14 years of service he also assisted the High Court as a long-standing member of the Rules Committee and oversaw a reform of the rules relating to discovery.

He is survived by his wife Nan, his three children, Peter, Bridget and Francesca, and his six grandchildren.