Booth v Booth (1935) 53 CLR 1; 8 ALJ 460; [1935] ALR 183; Rabaul Times 28/6/1935; [High Court Files: 14/1934]. For decision of Wanliss CJ in the Central Court of New Guinea see Rabaul Times 16/6/1933 and 8/12/1933

• Jurisdiction: Papua New Guinea
• Judge: Starke J:
• Judgment Date: 01 April 1935
• Year: 1935
• Court: High Court
• Citation: [1935] ALR 183; Rabaul Times 28/6/1935; [High Court Files: 14/1934]. For decision of Wanliss CJ in the Central Court of New Guinea see Rabaul Times 16/6/1933 and 8/12/1933

Full Title: Booth v Booth (1935) 53 CLR 1; 8 ALJ 460; [1935] ALR 183; Rabaul Times 28/6/1935; [High Court Files: 14/1934]. For decision of Wanliss CJ in the Central Court of New Guinea see Rabaul Times 16/6/1933 and 8/12/1933

High Court: Rich J, Starke J, Dixon J

Judgment Delivered: 1 April 1935

1 Husband and Wife—Territory of New Guinea—Married woman—Legal capacity—Title to property—Joint venture—Lease taken up in name of wife—Lease transferred from nominee to wife—Beneficial ownership—Partnership—Money remitted by husband to wife for specified purpose—Failure of purpose—Retention of money by wife—Acquiescence by husband—Laws Repeal and Adopting Act 1921–1933 (NG) (No 1 of 1921—No. 25 of 1933), s4, s11, s13, s14, s16.

2 The capacity of a married woman in the Territory of New Guinea to acquire and enjoy property is not limited as at common law prior to the Married Women's Property Acts.

3 The meaning and effect of the provision in s16 of the Laws Repeal and Adopting Act 1921–1933 (NG) that "the principles and rules of common law and equity that were in force in England on" 9 May 1921 "shall be in force in the Territory" of New Guinea, discussed.

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The Laws Repeal and Adopting Act 1921–1933 (NG) s4 provides:

S4(1) Subject to this ordinance, all Acts, statutes, laws and ordinances of the German Empire and of any German State, and all ... legislative measures enacted ... in the name of the German Emperor or the German Government by the competent authority for the time being, and expressed to extend to, or applied to or in force in the Territory shall, as from the commencement of this ordinance, cease to extend or apply to, or be in force in, the Territory. (2) Nothing in the preceding subsection shall affect ... any existing status or capacity."

s11 "Subject to this ordinance, the Acts of the Parliament of the Commonwealth specified in the First Schedule to this Act shall, so far as they are applicable, apply to the Territory."

s13 "Those portions of the Acts and statutes of the State of Queensland specified in the Second Schedule to this Act that are in force in the said State at the commencement of this Act ... are hereby adopted as laws of the Territory, so far as the same are applicable to the circumstances of the Territory."

s14 "Those portions of the Acts, statutes and laws of England that are in force in the State of Queensland at the commencement of this ordinance, and that are applicable and can be applied to the Territory are, to the extent that they are in force in the said State at the commencement of this ordinance, hereby adopted as laws of the Territory, so far as the same are applicable to the circumstances of the Territory."

s16 "The principles and rules of common law and equity that were in force in England on the ninth day of May, one thousand nine hundred and twenty–one, shall be in force in the force in the Territory so far as the same are applicable to the circumstances of the Territory, and are not repugnant to or any Act, ordinance, law, regulation, rule, order or proclamation having the force of law that is expressed to extend to or applied to or made or promulgated in the Territory."

In an action brought in the Territory of New Guinea by a husband against his wife he claimed that he was entitled to the beneficial ownership of, or, alternatively, that he was a partner in (a) a dredging and sluicing lease in the Territory taken up in his wife's name; (b) a similar lease, adjoining the former, taken up two years later in the name of a nominee who subsequently transferred it to his wife; and (c) the mining business conducted thereon. He also claimed a sum of money which had not been applied to the specific purpose for which it had been forwarded by him to his wife and had been retained by her. Payment for the leases was made by the wife. The husband and wife both held a miner's right. The actual work of management and direction of the operations on the leased land was done by the husband, but the wife assisted him so far as she was able. All necessary supplies were obtained upon his credit, and proceeds from the gold won were for a number of years credited to his account. The husband claimed that in the taking up of the first lease his wife had acted as his agent, and that the other lease had been taken up by the nominee in trust for him. This was denied by the wife. She also alleged that the money, claimed by the husband was part of the proceeds of gold won from her leases, and, further, that he had acquiesced in its retention by her. The trial Judge found in favour of the wife, and the husband appealed to the High Court.

Held that there was evidence to support the Judge's findings, and the appeal should therefore be dismissed.

Decision of the Central Court of the Territory of New Guinea affirmed.

Appeal from the Central Court of the Territory of New Guinea.

Charles Booth, of Wau, New Guinea, miner, brought an action in the Central Court of the Territory of New Guinea, against his wife, Doris Regina Booth, in which he claimed (1) that he was beneficially entitled to (a) a dredging or sluicing lease, known as "Cliffside," in the Morobe district, registered in the name of the defendant, all the improvements thereon, and the mining business carried on in connection with it, together with all the machinery, plant and tools used and employed in the business; (b) the dredging or sluicing lease known as "Clifftop," in the same district, registered in the name of the defendant, and that the transfer of the lease, dated 13th January 1932, from one Ruth Evelyn Mateer to the defendant was void and of no effect; and (2) the sum of £3,000 which he alleged belonged to him and was wrongfully retained by the defendant.

In her defence the defendant claimed that she was the beneficial as well as the legal owner of the two leases, and that all that the plaintiff had done in respect of those properties was done by him as her agent.

The plaintiff demurred to this defence on the ground that by reason of the principles and rules of common law and equity in force in the Territory of New Guinea, pursuant to s16 of the Laws Repeal and Adopting Act 1921–1933 (NG), he was the owner of the properties; that all his wife's property became his by the jus mariti. Chief Judge Wanliss overruled the demurrer.

The action subsequently came on for hearing before the Chief Judge. The defendant alleged that the sum of £3,000 claimed by the plaintiff was portion of the proceeds of gold won from the "Cliffside" lease and was her property.

The following statement of facts is substantially as appears in the judgment of the Chief Judge Wanliss:

About 22 March 1924 the plaintiff and the defendant left Rabaul for Salamaua with the intention of going to the Morobe Goldfields. They had practically no capital. The plaintiff had an account with Burns, Philp & Co Ltd at Rabaul. That company in effect acted as plaintiff's bankers and into his account with them was, amongst other moneys, paid his war pension and also that of his wife, the defendant. Before leaving Rabaul the company supplied him on credit with a quantity of stores and mining material for his use on, the fields and were apparently prepared to give on credit further supplies if necessary. On arriving about the end of May at Salamaua, at that time an uninhabited landing place, their stores were put ashore and for some weeks they remained there, living in a hut or under a tent fly. This delay was caused by the necessity of obtaining native carriers to transport their stores inland to the neighbourhood of what is known as the Wau, which was to be their destination. Both husband and wife took part in this and eventually, about the end of June, a sufficient number was obtained to enable them to start on their rough and difficult journey. A day or two after the start most of the carriers deserted, leaving them with about six, a number quite insufficient for the carriage of the stores. It was then decided that the plaintiff with four of the natives should push on to the goldfields, leaving his wife and two boys, to follow as best they could with the stores. As she had to obtain carriers from the native population adjacent to the road, this was a matter of great difficulty and the journey took some five weeks, weeks of hardship and not unattended by danger. After joining her husband they made a camp on the Bulolo and carried on mining operations. Each of them had a miner's right, but the defendant's share in the work was simply that of helping her husband so far as she was able. Of mining she had no experience. This continued until Christmas, the results of their efforts being about fruitless. On Christmas Day one of the older and more experienced and successful miners in the neighbourhood, named Park, gathered practically...