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Barlow Chapter Ellen Cecilia Barlow (1869-1951): Western Australia’s pioneering Vexatious Litigant Simon Smith* Abstract Ellen Cecilia Barlow (1869-1951) was a determined woman. Her early life was marred by personal tragedy but she made a fresh start on the 1890’s goldfields north of Kalgoorlie and subsequently built a modest property portfolio around Fremantle. However, it was her persistent and unsuccessful 1920’s litigation, mainly against her estranged husband, where her unintended pioneering status is found. Her legal activity prompted the passage of the Vexatious Proceedings Restriction Act 1930 (WA). Under this law Barlow was the first person declared a vexatious litigant in West Australia (1931) and the second person declared in Australia. Once declared, it is not possible to commence new proceedings without the prior leave of the court. This article traces Barlow’s life providing context for her litigious forays and examines the effectiveness of the Vexatious sanction. Introduction Ellen Cecilia Barlow1 (1869-1951) was a Western Australian pioneer. A diminutive but determined woman whose early life was marred by personal tragedy, she made a fresh start on the 1890s goldfields north of Kalgoorlie and for a time, built a modest property portfolio around Fremantle. However, her true, if unintended, pioneering status is found in her persistent and unsuccessful 1920’s litigation, mainly against her estranged husband. Her legal activity prompted the passage of the Vexatious Proceedings Restriction Act 1930 (WA). Under this law Barlow was the first person declared as a vexatious litigant in Western Australia (1931) and the second person declared in Australia. Once so *B. Juris. LL.M (Monash). Ph D research student Faculty of Law, Monash University, Clayton 3168, Australia. I gratefully acknowledge the generous co-operation and assistance of John Barlow, Geraldine Woodhatch, Elise Histed, Frances Kininmonth and Bronwyn Naylor in the preparation of this article. Responsibility for the views expressed remains mine. 1 For consistency the surname Barlow will be used in this article when referring to Ellen Cecilia. She took this name in 1898 when she married her second husband Thomas Reginald Barlow. MURDOCH UNIVERSITY E LAW JOURNAL, VOL. 14, NO. 2 (2007) 69 declared, a vexatious litigant cannot commence new proceedings without the prior leave of the court. This article traces Barlow’s life, providing context for her litigious forays. By exploring the litigation it canvasses Barlow’s legal determination when challenged and the frustrated responses of her husband and other opponents and their legal advisers. It also considers whether the nature of matrimonial law at the time contributed to the litigation. Finally, the article examines the processes by which the state decided to limit access to the courts and the extent to which it succeeded in respect of Ellen Barlow. Early Life Little is known of the early years of Ellen Cecilia Barlow. In her court documentation she referred rarely to her parents or early life and if she spoke of it to her children it was not passed down to her descendants.2 What is now known has been gathered from official records. She was born in 1869 at Boggy Creek, Pambula3 near Eden a quiet coastal village of New South Wales, 473 kilometres south of Sydney. She was the second of nine children of Irish born farming folk, John and Catherine Theresa Cusack.4 Barlow next appears in 1892 at Wagga Wagga, New South Wales when, aged twenty-three, she married thirty-one year old English immigrant, Joseph Littlebury. A widower, Littlebury gave his occupation as Clerk and Barlow, as Domestic5. How they met and why they were in Wagga Wagga is unknown.6 Of coincidental interest is that Wagga Wagga was also the marriage place of another litigant who obtained legal notoriety. He was Thomas Castro, the Tichborne Claimant, who married in 1865 and left Australia the next year for England to make his unsuccessful claim for the Tichborne Baronetcy.7 2 Interview with Barlow grandchildren John Barlow and Frances Kininmonth 23 November 2006. 3 New South Wales Registry of Birth Deaths and Marriages, Birth Certificate Marriage of Ellen Cecelia Cusack, dated 28 April 1869, Registered Number 1869/010360. For a short history of Pambula see Higgins, J. Pambula’s Colonial Days: a short history of the period 1797-1901’ Merimbula Historical Society, 1983. 4 See New South Wales Registry of Birth Deaths and Marriages, Death Certificate of Catherine Theresa Cusack dated 25 August 1905, Registration Number 1905/008666. 5 New South Wales Registry of Birth Deaths and Marriages, Marriage Certificate of Joseph Littlebury and Ellen Cecilia Cusack, dated 6 January 1892, Registration Number 1892/007347. Littlebury arrived in Melbourne, Victoria as an unassisted immigrant in February 1888. He had sailed from London on the SS Liguria. See PROV, VPRS 7666/P0, Fiche 493, Page 005. 6 In March 1892, Joseph Littlebury appears to have been living at the ‘Rosehill Hotel’, Redfern (Sydney) where thieves stole his gold watch, silver Albert chain and Roman Catholic medal. See NSW Police Gazette 1892, 6 April 1892, p 116. 7 Thomas Castro’s unsuccessful claim for the Baronetcy was the legal sensation of its time. In 1874 it resulted in a criminal conviction for perjury and a fourteen-year gaol sentence. In 1875 he sought to reopen the conviction through civil proceedings. The case became a leading decision on the inherent power of the court to stop process that is frivolous, groundless and an abuse of process. See further Castro v Murray (1875) 10 Ex.213; Annear, R. The Man Who Lost Himself: the unbelievable story of the Tichborne Claimant, Text Publishing, Melbourne, 2002, p 6 and Roe, M. ‘Orton, Arthur (1834-1898)’, Australian Dictionary of Biography, Volume 5, Melbourne University Press, 1974, p 374. MURDOCH UNIVERSITY E LAW JOURNAL, VOL. 14, NO. 2 (2007) 70 Joseph Littlebury surfaces next in Victoria. Most likely, the move was driven by the scarcity of jobs during the 1890s depression.8 In any event, in 1896 he was working as a house steward at The Australian Club, (still) an exclusive Melbourne dining and accommodation retreat for men. As Littlebury lived at the Club it is presumed that his wife Ellen remained in New South Wales. However, tragedy struck on 5 November 1896 when Littlebury died after falling down the lift shaft at the club from the second floor. The Coroners Inquest convened five days later concluded that he had been sober at the time and that it was an accidental death.9 In his deposition to the inquest, Club Secretary Johnston made it clear that Littlebury, as staff, ‘had no right to use the lift’ and although he ‘left a wife’ he ‘did not know if he has left a family’. 10 After all Littlebury had only been working there eleven months! Perhaps a reflection of the class structure of the period, the incident passed without mention in the minutes of the Club Committee.11 Suddenly a widow, Ellen suffered a further blow soon after when her purse and ‘small gold ring set with two rubies’, possibly her wedding ring, was stolen from a drapers shop in Pitt Street, Sydney.12 Having been dealt these two losses in quick succession she may have surmised that at aged twenty-eight she was ready to start afresh. A fresh start A new start came on 1 August 1898 when she married Thomas Reginald Barlow in St Mary’s Cathedral in Sydney according to the rites of the Roman Catholic Church. Ellen Barlow’s strong commitment to the Catholic faith would be a factor in her later litigation. Thomas Barlow was the thirty-four year old bachelor son of John Barlow, a pioneer wine maker from Wahgunyah in northeast Victoria. How and where they met is not known but their marriage certificate lists her occupation as Trained Nurse and his as a Storekeeper of Menzies, West Australia.13 It was to Menzies that Thomas Barlow promptly returned with his bride, most likely by ship. A daughter Mercia Cecilia, was born there in 1899.14 Menzies is 8 For a general description of the financial crisis of this period see further Clark, M. A History of Australia: V The people make laws, MUP, 1981, p 65ff. 9 PROV, VPRS 24/P0, Unit 665. 10 Ibid, deposition of John Kent Johnston sworn 10 November 1896. 11 Kenneth A Loomes, General Manager, The Australian Club to author dated 23 March 2007. 12 NSW Police Gazette 1897, 17 February 1897, p 56. 13 New South Wales Registry of Birth Deaths and Marriages, Marriage Certificate of Thomas Reginald Barlow and Ellen Cecilia Littlebury dated 1 August 1898, Registration Number 1898/004631. In this certificate the occupation of John Cusack is noted as a (land) Selector. In a further coincidence 1898 was the year that ‘The Tichborne Claimant’, Arthur Orton, died in England. 14 Birth Registration Number 1197 of 1899 see: http://www.justice.wa.gov.au/_apps/pioneersindex/default.aspx?uid=0308-0996-4747-9523 (23 March 2007) MURDOCH UNIVERSITY E LAW JOURNAL, VOL. 14, NO. 2 (2007) 71 now a ghost town but in the late 1890s it was a booming gold mining town 132 kilometres north of Kalgoorlie. At its peak it had two breweries, thirteen hotels and a population of over 10,000. Easterners or ‘Tothersiders’ escaping the 1890s depression flocked to it and other nearby goldfields in quest of a quick fortune.15 Thomas Barlow must have been an early adventurer arriving not long after the discovery of gold in 1894. His decision to be a Storekeeper rather than prospector was no doubt a shrewd business one. Nonetheless, life in Menzies would have been hard for Ellen and a baby.
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