Then, suddenly, peace! In March 1928 Haynes brokered an extraordinary agreement with an unrepresented Barlow that, even more amazingly given what had gone before, she signed. The agreement fi xed maintenance at £5 per week. In return Barlow agreed “not to molest, annoy or otherwise interfere with my said husband in any way whatsoever”. She also agreed to procure the children’s signed endorsement of the agreement as their acknowledgment that “their father is not indebted to them” and “that they will not hereafter institute or carry on any action against him”. Failure to carry out any of the undertakings was to give Thomas “the right to withdraw and forfeit any instalments until such time that I give an assurance in writing that I will abide by the terms herein set out”.83 Upon signing the agreement Barlow is reputed to have said
“Well, here ends a lot of fun!”.84
The agreement had been literally signed at the door of the court and it was announced to a surprised Supreme Court later that morning. The court had convened to hear Barlow’s application for a judicial separation, she having apparently reconciled her religious objection to those proceedings. In advising the court that “eight or nine years of continuous litigation” had settled, Haynes told Northmore J, “I suppose your Honour is not sorry”, to which His Honour replied, “I did not believe it until I heard the plaintiff say that it was so”.85 As a
result of the settlement the court did not make a formal separation order. However, Barlow was not fi nished with court proceedings. In fact she was rather busy. In one case the Full Court dismissed her appeal on a 1922 rent claim against the Andrews. The Chief Justice queried why she had waited until 1927 to bring the proceedings, to which Barlow replied, “I have been too busy. There are 30 more similar cases”.86 Then in June she failed in a
damages action for malicious prosecution brought against James Brennan. It related to her 1922 shoplifting appearance in the Perth Police Court. Once more responding to an enquiry from the Chief Justice as to why she had not brought the proceedings earlier, she said, “I have been so busy. I have had 100 cases since then. His Honour: I can very well believe that”.87 In dismissing
the case and awarding costs against her, the judge went on to say, “Mrs Barlow has an itch for litigation. It is bad for her and bad for judges. It may be good for
83 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, paragraphs 22 and 30 and Attachment “L”.
84 Ibid, paragraph 22.
85 “BARLOW LITIGATION ENDS: Settlement after many years”, West Australian, 17
March 1928, 18.
86 “FULL COURT: A belated rent claim”, West Australian,22 March 1928, 12. See also
SROWA, WAS 202, Cons 3677/1509, Supreme Court Appeals, Ellen C Barlow and JW Andrews.
87 “AN ITCH FOR LITIGATION: Mrs Barlow Fails Again”, West Australian,7 June 1928,
Counsel appearing against her, but it is bad for those who have acted for her on different occasions”.88
However, the Brennan matter still had a distance to run. In January 1929, exercising the new federal jurisdiction,89 Northmore J bankrupted Barlow on
the petition of Brennan. He was chasing court costs of £85.8s.5d. Using her now standard appeal format, Barlow immediately appealed to the High Court, thus opening a new theatre of litigation for herself. To Brennan’s frustration, she won on the technicality of a defective bankruptcy notice.90 An earlier
handwritten letter by Barlow to Morris Crawcour, Brennan’s solicitor, indicated her attitude, lack of possessions and thus the futility of the proceedings:
Well deerie I aint got nuttin so you will have to cross it off.
Some old stokins & old fashioned dresses dont think Mrs. Dwyer or Mrs. Croker would be able to meet big bugs in them for bridge and siggertes, there I know my spelling is all rong but my dear old parents were decent old fashioned goodies & there were 9 of us they were not inlitened like you.91
It was enough for Brennan. He stopped his pursuit. In the meantime however, Barlow had rethought her position on the 1928 agreement with Thomas.
Second thoughts on the 1928 agreement: the High
Court as mediator
When Barlow signed the 1928 agreement she was not well and was under fi nancial pressure. This is clear from a long and bitter letter written by Mercia, then 29, to her estranged father. On a return visit from Sydney Mercia had found her mother suffering from severe leg ulcers and her brother John in poor health. She implored her father:
As you know I am not very strong, and though I don’t want to appeal for myself Father, surely your children have had to suffer degradation and shame enough because, through your stubbornness you refused to do your duty toward either mother or us. I would if circumstances allowed, force Mother away from this hateful place but I cannot even give her my help, and you must see it. All there is left is to return tired and dis-spirited to take up this burden afresh. Your daughter, Mercia92 88 Ibid.
89 The Commonwealth Government only assumed full responsibility for the area from the
States when it enacted a consolidated Bankruptcy Act 1929.
90 NAA: A10078, 1929/5, judgment of Full Court 11 January 1929. Always a technical
jurisdiction, the early cases brought to the surface many irregularities. For example, see “BANKRUPTCY LAW: APPARENT ILLEGALITY: Technicalities not Observed”, West Australian,22 March 1930. See also, “MRS BARLOW’S ESTATE: Sequestration Ordered”, West Australian, 12 January 1929, 14.
91 NAA: A10078, 1929/5, Barlow to Crawcour circa July 1928. The references in the
letter to Mrs Dwyer and Mrs Croker are probably the wives of lawyers JP Dwyer and M Crawcour.
92 NAA: A10074, 1930/6, Appeal Book, Paragraph (11), Exhibit “C”, MC Barlow to TR
By April 1928 Barlow had reconsidered her position and had suffi cient stamina to rejoin battle with Thomas. She had a particularly testy exchange of correspondence with Haynes, providing a further indication of how involved and unprofessional he had become in the dispute. For example, in June he wrote:
Your effusion of even date has reached me. You are a most extraordinary person.
You seem to revel in the fact that you cannot be put down. I agree that it is impossible so far as human effort is concerned to hold you in check. Your brain seems to be unceasingly active, and you are forever inventing some new method of irritating your husband and myself. For my part, I am used to these things, and that is the only reason that I can put up with you. What I do ask you to do when you send your screeds to me is to write them so that they can be read, and please do not write all around the margins as if there was no other paper left on the Universe.93
In reply Barlow was equally forthright:
Your insulting and lying letter I got when I came home yesterday. I am sending this note by my son and am going to Fremantle this morning to present my last cheque for payment, brings my maintenance up to the 25th April 1929 and you stop it if you dare and I will at once act as you and Thomas Barlow are carrying this dirty, cheating plot too far, I say but I know too well it is you as that poor coward wouldn’t have the pluck enough to cheat me as he has done only he is egged on and propped up by you, but why you have done this God only knows; I suppose as others you and Barlow fi nd that I am tougher than you thought and think all this cowardly stuff will prove too much for me and I will brake down — No, I won’t — I will go on till I drop dead on my rotten leg fi rst and show you set of cowards that though crippled I am no coward.94
In September Barlow applied to have the 1928 agreement set aside on the grounds of misrepresentation95 and also issued proceedings against Haynes
for libel based on the comments in his letters.96 Earlier, tragedy had struck
again when son John died suddenly in June 1929.97 He was 25. He had been ill
since a meningitis attack in 1918. Such was the family animosity that Thomas
93 NAA: A10071, 1936/68, Haynes to Barlow, dated 18 June 1929, referred to in Affi davit
of Ellen Cecilia Barlow, sworn 17 September 1937.
94 NAA: A10071, 1936/68, Barlow to Haynes, dated 18 June 1929, referred to in Affi davit
of Ellen Cecilia Barlow, sworn 17 September 1937.
95 NAA: A10074, 1939/1, Appeal Book Item 5, Paragraph 7(c) Statement of Defence in
Supreme Court of Western Australia 86/1928.
96 The action would be dismissed in 1930 for want of prosecution. See 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 paragraph 27.
97 Although his death appears not to have been offi cially registered, he is buried with his
mother in the Roman Catholic section of Karrakatta Cemetery near Fremantle. See at: http://www.mcb.wa.gov.au/NameSearch/details.php?id=KB00039438 (14 April 2007).
declined to attend the funeral, as he “was loath to risk a regrettable scene”.98
The pressure also showed on son Marcus, now 20, who wrote formally to his father indicating that he was “leaving Perth shortly for a considerable time and will be unable to give my mother any support”. He warned his father that he would sue him if not reimbursed for money spent so far.99
Meanwhile, Barlow had launched a barrage of Supreme and Local Court cases against Thomas, alleging overdue maintenance payments. In the period April 1928 to August 1930 she issued no less than three Supreme Court writs and fi ve Local Court summonses. All were dismissed.100 She was also
unsuccessful as a defendant in an assault prosecution by an Albert Cook. The case was heard at the Fremantle Petty Sessions Court in August and Barlow was convicted and fi ned 10 shillings in default of 14 days imprisonment. She immediately appealed.101
In an effort to stop the litigious onslaught, Haynes advised Thomas to take bankruptcy proceedings against his wife because, theoretically, as a bankrupt she would be unable to issue proceedings.102 Haynes duly issued a bankruptcy
notice, alleging indebtedness due to a breach of the 1928 agreement. Just as promptly, Barlow, following her success in Brennnan’s case, applied to have set it aside. In May 1930 Northmore J dismissed the application and Barlow immediately appealed to the High Court.103 When the matter reached that court
in September 1930 “the Bench expressed the desire that a settlement should be come to and the matter was referred to Mr Justice Rich in Chambers”.104
After negotiations, with Rich J as mediator, an agreement was reached based on the 1928 agreement and increasing the weekly payment to £6. This time Barlow agreed to “give her undertaking to the High Court of Australia that she would not hereafter bring any further actions against her said husband”.105 The
case then returned before the Full Bench, the terms were noted and the appeal dismissed.106 Thomas did not resume the bankruptcy proceedings.
98 NAA: A10071, 1936/68, Haynes to Barlow, dated 29 June 1929, referred to in Affi davit
of Ellen Cecilia Barlow, sworn 17 September 1937.
99 NAA: A10074, 1930/6, Appeal Book, Paragraph (11), Exhibit “B”, M Barlow to TR
Barlow, dated 26 April 1930.
100 For a summary of actions, see NAA: A10074, 1939/1, Appeal Book Item 5, Paragraph
7(c) Statement of Defence in Supreme Court of Western Australia 86/1928.
101 SROWA, WAS 202, Cons 3677/1642, Supreme Court, Appeals, Affi davit of Ellen Cecilia
Barlow, sworn 2 September 1930.
102 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, paragraph 23.
103 NAA: A10074, 1930/6, Appeal Notice dated 19 May 1930. See also “Much Litigation”, West Australian,11 June 1930, 14.
104 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, paragraph 25.
105 Ibid.
However, the authorities had seen enough Barlow litigation. They moved to stop it.