SOLDADO DE PLOMO

Approaching 80 years of age, Barlow was not fi nished with litigation. In 1947, in an application that echoed her 1917 case against the Railway Commissioner, she sought leave to sue West Australian Newspapers Limited for negligence. She alleged she had fallen and injured her leg and back when entering the building. Although Woolf J granted leave to proceed, subject to payment into court of £50, there is no record of further action.135

Then, in 1948, Barlow was in the High Court fending off a bankruptcy application by one George Flood. He had sought to recover costs following a failed property purchase from daughter Mercia, through Barlow. No doubt drawing on her Brennan experience, Barlow unsuccessfully sought leave to have the bankruptcy notice set aside. She then appealed to the High Court. In 1951 the appeal was dismissed for want of prosecution.136

Tenancy matters also continued to occupy Barlow’s time. In 1949 she obtained leave to sue Paul and Marie Smith for outstanding rent. They were tenants sharing her home at 25 Monument Street, Mosman Park, a property in Mercia’s name. When they failed to make good Barlow obtained further leave to issue eviction proceedings.137 _{It was her last application. She would live out}

her life at that address alone.

On 2 August 1951 Barlow died and was buried with her son John in the Roman Catholic sector of Karrakatta cemetery. She was 82.

Conclusion

It is 90 years since Ellen Barlow fi rst sought to resolve her matrimonial dispute through the legal system. Since then there have been considerable changes in the way the law approaches family disputes. The Family Law Act 1975 (Cth) introduced a national approach that abolished “fault” or “matrimonial crimes” as a basis for a dissolution and replaced them with the single ground of “irretrievable breakdown” based on one years separation.138 _{The Act also}

introduced alternative approaches of confi dential dispute resolution, including early intervention and counselling. These initiatives minimise the scope for family disputes to be conducted publicly. Signifi cantly, although maintenance applications are no longer contingent on there being grounds for a divorce, the role of the court has narrowed signifi cantly following the passage of the Child Support (Assessment) Act 1989 (Cth). This has made assessment of

135 _{SROWA, WAS 936, Cons 4239/1803, Supreme Court, Court Orders and Cases, Order of}

Woolf J, 24 April 1947.

136 _{NAA: A10078, 1948/11, High Court Principal Registrar to Perth Registry, dated 5 June}

1951.

137 _{SROWA, WAS 936, Cons 4239/1818, Supreme Court, Court Orders and Cases, Affi davit}

of Ellen Cecilia Barlow,22 March 1950.

138 _{Family Law Act 1975 (Cth), section 48. The parties must have formed and acted on the}

child maintenance essentially an administrative matter. Importantly, all these changes have been accompanied by changed community attitudes to family break-up and there has been a softening of religious objection to divorce.

These changes provide a stark comparison to the legal mechanisms available to Barlow in the 1920s. By contemporary standards the system then was narrow and rigid. The very title of legislation such as the Married Women’s Protection Act 1922 (WA) refl ects that. Nonetheless, Balfour indicates that the common law was evolving in its approach to legally enforceable domestic arrangements. However, it is arguable, even if Barlow had been able to access the modern regime, whether her persistence, even obsession, in pursuing Thomas would have been different. The fact that she was still pursuing him in the late 1930s after his business had failed indicates the litigation was being driven by personal rather than practical considerations. That family disputes attract this obsessiveness is well known.

Barlow was clearly an able and determined woman. This is evident from the way she not only raised a family alone but started a property portfolio in a period when women faced signifi cant social obstacles in business. Similarly, her 100 or more legal actions show that the legal system did not intimidate her. But it was this same fearlessness, a propensity to exaggerate and lack of proportion that saw her push the legal boundaries beyond what was reasonable. As a result her credibility suffered and her notoriety rose. In the face of such a litigant the traditional sanctions of the system, such as costs and bankruptcy, have no impact and the professionalism of practitioners drawn into the litigation vortex also suffers. Arthur Haynes and TAL Davy both allowed themselves to be drawn into the litigation in this way. Certainly, Barlow was shown remarkable tolerance by the Perth judiciary. In a 30-year period she regularly appeared before the same small group of judicial offi cers in her matrimonial and other litigation. Probably the relative intimacy of the jurisdiction gave her litigation leeway beyond that which a larger, less personal jurisdiction would have tolerated.

With the benefi t of hindsight, Barlow’s behaviour exhibited a pattern consistent with the Mullen and Lester defi nition of querulousness. She was uncompromising in her persistent pursuit of her grievance against Thomas Barlow to the point that it was damaging to her economic, social and personal interests and to the functioning of the courts. She was also in the age range for the querulent profi le although, as a woman, she was in the smaller gender grouping. Further, the form and content of her court documentation was also consistent with the profi le, although perhaps not at the extreme edge. It nonetheless had its share of curious formatting and methods of emphasis. It also contained regular employment of ultimatums, rhetorical questions and “inappropriately ingratiating statements”.139 _{However, as with Millane, the}

prospect of a multi-disciplinary approach to the challenge of her litigation was something in the future.

For his part, Thomas Barlow remains somewhat of an enigma, his persona being obscured by the representations of his wife and those of his solicitor Haynes. While it is common ground that the couple was incompatible, it is unclear why he did not initiate divorce proceedings. Was he reluctant to have the further expense or provide Barlow with another court forum? Was his legal advice that he lacked an appropriate “fault” ground, such as adultery, desertion or cruelty? Did his Catholic faith also pre-empt that option? However, it is clear that he was estranged from his children and that they showed hostility toward him ― although is hard to gauge whether or not, as McMillan CJ suggested in 1924, they were just “unconsciously repeating” what Ellen Barlow suggested.140 _{But Thomas Barlow was a respected member of the Bruce Rock}

and Narambeen communities and regarded as an “outstanding personality of the town”, a pioneer who “was a typical example of the early day country storekeeper who did so much towards opening up the districts right throughout the wheat-belt”.141

140 _{Western Australia Supreme Court, Perth, In the Matter of the Vexatious Proceedings} Restriction Act 1930 and In the Matter of Barlow, File 31/A21, Affi davit of Arthur Goodwin Haynes, sworn 6 May 1931, Judgment of Chief Justice in Barlow v Barlow, dated 17 December 1924, Attachment “C”.

141 _{Extracted from the diary of John T Rutherford (undated), forwarded by Secretary of}

Bruce Rock Historical Society (WA) to author, April 2007.

Thomas Barlow in Bruce Rock. Thomas Barlow (second left) and staff outside his store in Bruce Rock. 1923.

Finally, it is clear that the introduction of the vexatious litigant sanction was not a success in respect of Barlow. A sanction of “last resort”, it certainly did not stop her litigation. At best, it slowed her down. But as she was aged 62 when the order was made, it may well be that she was slowing anyway. The sanction also moved the focus of her litigation from defendants to the Supreme Court judges and then to the Commonwealth courts. First, she required leave to issue and then, if unsuccessful, she transferred her attention to the federal jurisdiction where the declaration did not apply.

In the end it was Barlow who lost the most from all her litigious activity. She suffered fi nancially and she pushed her family away. Both her surviving children, while supportive, chose to live outside Perth where the name Barlow was less notorious. Mercia moved to Sydney and Marcus to near Bunbury.142

At the end Barlow was living alone in a derelict house without power.143

It is probably of little consolation to be known by history as a legal pioneer.

142 _{Interview with Barlow grandchildren, John Barlow and Frances Kininmonth, 23 November}

2006.

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