Dr Roger Fenton died suddenly in Auckland on 7 June 2012 aged 61. Inheritor of a long lineage in the New Zealand legal profession, he was the longest-established member of Auckland’s Southern Cross Chambers at his death and author of the sixth and seventh editions of the highly regarded Garrow and Fenton’s Law of Personal Property in New Zealand.
Born in Te Puke on 28 October 1950, Dr Fenton’s father was a partner in the law firm Fenton McFadden. His great grandfather, Francis Dart Fenton, had been Chief Judge of the Native Land Court, while a great-great uncle, Thomas Gillies, was a Judge of the Supreme Court from 1875 to 1889.
After attending King’s College in Auckland, Dr Fenton studied law at Auckland University, graduating LLB in 1973 and LLB (Hons) in 1974. He found employment with Meredith Connell upon graduation, before commencing practice as a barrister sole in 1981. Further study saw him graduate MJur from Auckland University in 1983, and he joined Southern Cross Chambers in 1987.
Dr Fenton married Christine George in 1980 and they had three children.
His practice focused on civil litigation, with a specialisation in real and personal property and equity. He appeared in most courts in New Zealand with a particular emphasis on the High Court.
Dr Fenton was an active legal writer, and was invited to be a founding contributor to Butterworths Conveyancing Bulletin in 1982 and continued as such throughout the rest of his career. He also contributed articles and case notes to the New Zealand Law Journal and narratives on Gifts and Choses in Action to the New Zealand Encyclopaedia of Forms and Precedents as well as the Choses in Action chapter for The Laws of New Zealand. His greatest achievement was preparing the sixth edition of Garrow & Fenton on the Law of Personal Property in New Zealand, which was published in 1999, and the seventh edition in 2010. Upon submission of Garrow & Fenton and his other writings to Auckland University, he was awarded an LLD.
Address by Supreme Court Justice Robert Chambers at the funeral of Dr Roger Fenton on 11 June 2012
It is a privilege to have been asked to speak on behalf of the law fraternity on this occasion. There are a number of judges and lawyers present and I know I speak for all of them when I record our shock and sadness at Roger’s unexpected and sudden passing. I particularly want to acknowledge the presence of the Chief Justice, Dame Sian Elias, Justices John Priestley and Ailsa Duffy, Chief Judge Graeme Colgan, and retired Judges Bob Fisher QC and Peter Salmon QC. I single them out because all of us were chambers colleagues of Roger’s in Southern Cross Chambers.
Andrew has already outlined Roger’s fine legal lineage. His great grandfather was Francis Dart Fenton, Chief Judge of the Native Land Court from 1865 to 1881, and a pivotal figure in Maori-Pakeha relations over that period. A great‑great‑uncle (on his mother’s side) was Thomas Gillies, a Judge of the Supreme Court from 1875 to 1889. Gilles Avenue in Epsom is named after him. So law was in Roger’s genes.
Roger decided not to join his father in the family firm Fenton McFadden in Te Puke, having caught what his father called “the common law bug”. He decided to practise in Auckland, where he had gone to school and University. He worked for a time for Meredith Connell, the Crown Solicitors, and then from 1982 as a barrister. He practised initially on the 9th floor of the Southern Cross building with Russell Johnson, later Chief District Court Judge, a wonderful man who died last year, like Roger, at far too young an age. When Southern Cross Chambers, at that time Auckland’s largest group of barristers, expanded its premises in 1987, Roger moved up three floors and joined it and thus began this association with many who are here today. At the time of his death, Roger was the longest serving member of the Chambers. Throughout all his time in Chambers he never changed rooms as other, perhaps more salubrious, chambers became available. Roger was always very content with what he had.
We had a lot of fun at Southern Cross Chambers. I think I remember correctly when I recall Roger and Bob Fisher taking part in water pistol fights which I was powerless to stop, but I may have the roles muddled. And I seem to remember Roger may have been party to the theft of the Persian rug in Sian’s and my waiting room. The rug mysteriously appeared later in Bob’s coat cupboard. Can I make clear that the future Chief Justice was not involved in this mindless male buffoonery?
Roger’s practice was a civil one ie arguing cases and resolving disputes about contracts, land, trusts, and securities. Perhaps his most colourful case involved the delicate question of who was the rightful 17th Karmapa, a question in which David Baragwanath, another Southern Cross Chamber mate, was to play a role in the High Court, and in which I was to play a role in the Court of Appeal.
The Karma Kagyu school of Tibetan Buddhism, had a monastery in Kaukapakapa, which was administered by a charitable trust. The school is led by a karmapa, who is believed by the religion's followers to be an incarnation of the school’s founder, who lived, in his first body, in the 12th century. The 16th Karmapa died in 1981. Following his death, as is the custom in the religion, four regents were appointed to identify the new karmapa and to rule the school until he turned 21. Unfortunately the regents were divided in their view as to who was the incarnation: was it a boy born in 1983 or another born in 1985? The dispute as to which of the two contenders is the true karmapa remains unresolved even today. In Roger’s case, the spiritual leader for New Zealand backed one contender, while the trustees of the charitable trust which ran the monastery backed the other. This led to the spiritual leader trying to remove the trustees, which they resisted. Roger acted for the trustees. Before David Baragwanath, Roger was unsuccessful. David held the trustees had been validly removed. But in the Court of Appeal Roger won. You will be relieved to know we did not have to decide who was rightfully the 17th Karmapa. We decided the case on the basis of an interpretation of the charitable trust deed, which we held did not confer on the spiritual leader a power to remove the trustees. Roger always loved legal conundrums of this sort. And this was always, I think, his favourite case. Christine tells me that long after the case was resolved he kept in touch with his clients, the trustees, and used to go and visit the monastery.
But Roger’s greatest love in the law was indisputably The Book. Sir Alexander Turner, one time President of the Court of Appeal and after retirement a sort of super editor for Butterworths, the legal publishers, approached Roger about “a problem”, as he called it. Butterworths wanted someone to write a new edition of Professor Garrow’s text on the Law of Personal Property. Would Roger write it for him? The last edition (the 5th) had been published as long ago as 1968. Roger never said “no” to anyone and then began a labour of love which was to last to his dying day. Roger brought out the 6th ed in 1998 and then the 7th ed followed in 2010. And here it is: it’s a monster – two volumes of legal scholarship of the highest order.
My one regret about the 7th ed is that it did not come with a yacht on the front cover as the 6th edition did. The yacht was the “Gloriana”, built in 1892, and the picture showed Roger’s father at the helm – sometime in the 1930s. Roger chose the photograph because, he said in the foreword, it exemplified many personal property concepts found in the text. I think only Roger could have made that link! I loved the way his mind often worked.
In truth the book was a new text, but Roger wouldn’t hear of the Garrow name being removed from the title. Indeed, it took arm-twisting before he could be persuaded that the book had to be called Garrow & Fenton on the Law of Personal Property in New Zealand. I (and I am sure many others) persuaded Roger to submit this book and his other writings for consideration for an LLD from Auckland University. It was no surprise to me when the University awarded him one. I should explain that comparatively few lawyers have doctorates – but of those who do most have the lower class doctorate, the Ph D. The LLD is awarded only to the cream for, in terms of the university regulations, “an original contribution of special excellence to the history, philosophy, expedition or criticism of law”.
In many ways, Roger would have been better suited to the cloister. He had the air of the archetypal absent-minded professor, perhaps sufficiently exemplified by this story. As some of you will know, Roger always liked to catch the bus to and from work. It gave him time to think, he said. One day, however, he took the car. He arrived home that night – by bus. Chris asked where the car was. Ah, Roger had forgotten he’d taken it. So that evening back into town he came – by bus - to fetch the car. Once he got into the city, he decided to go into the office – I bet to just do a little bit on the book. After a couple of hours’ work, home he went – again by bus. The reason for the evening trip to town had long since been forgotten.
Roger’s first love and his undivided loyalty was always for Christine and his three children of whom he was immensely proud. But his primary legal legacy will be his book, one of the classics of New Zealand legal writing.
On behalf of all lawyers in New Zealand, I salute Roger. He was a very dear friend and I shall sorely miss him.