Federal Court of Australia

Banks v Melbourne Archdiocese Catholic Schools Ltd (Transfer Application) [2026] FCA 1347

ORDERS

THE COURT ORDERS THAT:

1.    The respondent’s interlocutory application dated 14 May 2026 be dismissed.

2.    Costs of the respondent’s interlocutory application be reserved.

3.    The matter be listed for a case management hearing on 18 September 2026 at 9:30 am.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

DOWLING J

Introduction and background

1    By its interlocutory application the respondent, the Melbourne Archdiocese Catholic Schools Ltd, seeks that this proceeding be transferred from the Federal Court of Australia to the Federal Circuit and Family Court of Australia (Division 2). The applicant, Ms Stephanie Banks, opposes the transfer.

2    Ms Banks commenced employment with the Melbourne Archdiocese in 2005 as a school teacher. In September 2016 she was appointed as ‘Deputy Principal – Wellbeing of Caroline Chisholm Catholic College’. There is some dispute between the parties as to the number of times that Ms Banks was reappointed to that position. Ms Banks alleges that on 1 July 2024, she was reappointed for a fourth time with effect from 29 January 2024. She says the term of that appointment was expressed to terminate on 31 January 2026. The parties agree that on 3 December 2025, the Melbourne Archdiocese informed Ms Banks that after 31 January 2026 her role would revert to ‘teacher’.

3    Ms Banks is currently the subject of two investigations by the Melbourne Archdiocese into her alleged conduct. The first investigation commenced on 30 May 2025 and the second investigation commenced on 2 September 2025. Regrettably, as of the date of this hearing, 11 September 2026, the Melbourne Archdiocese has not informed Ms Banks of the outcome of either investigation. Ms Banks has been stood down on paid leave since 18 July 2025.

4    In her substantive claim before the Court, Ms Banks alleges the following breaches of the Fair Work Act 2009 (Cth) by the Melbourne Archdiocese:

(1)    A breach of s 333E(1) of the Fair Work Act (dealing with consecutive fixed term contracts) because she says that the contract as ‘Deputy Principal – Wellbeing of Caroline Chisholm Catholic College’ from 29 January 2024 “did not conclude on 31 January 2026 and is ongoing”.

(2)    A breach of s 50 of the Fair Work Act, as the result of breaches of cll 13.1(a), 13.3(b)(i) and 13.5(a) of the Catholic Education Multi-Enterprise Agreement 2022, by failing to inform her of the results of the investigations, by failing to respond to her request for particulars of certain allegations, and by requiring her to “remain on paid leave”.

5    For the reasons that are explained below, I am not satisfied that the proceeding should be transferred.

The relevant provision and principles

6    Section 32AB of the Federal Court of Australia Act 1976 (Cth) provides that the Federal Court may transfer a proceeding to the Federal Circuit and Family Court. Section 32AB(6) provides that in deciding whether to transfer a proceeding the Federal Court must have regard to:

(a)    any rules of the Federal Court Rules 2011 (Cth) setting out factors that are to be taken into account by the Court in deciding whether to transfer a proceeding;

(b)    whether proceedings in respect of an associated matter are pending in the Federal Circuit and Family Court;

(c)    whether the resources of the Federal Circuit and Family Court are sufficient to hear and determine the proceeding; and

(d)    the interests of the administration of justice.

7    As to the Rules described at (a), the only relevant rule is r 27.01(3). That rule provides that the Federal Court must consult the Chief Justice of the Federal Court, who in turn must consult the Chief Judge of the Federal Circuit and Family Court in relation to the proposed transfer, before making an order under s 32AB.

8    As to the interests of justice, in Freeway Sports Centre Pty Ltd ATF Freeway Sports Centre Unit Trust v Freeway Fitness Pty Ltd ATF Freeway Fitness Unit Trust [2025] FCA 82, Button J said at [42] “the question of what is in the interests of justice depends on the circumstances in each particular case, and other cases in which transfers have been made, or refused, are of limited relevance and do not provide assistance in determining the present application”.

9    In Re The Scorpion and The Frog Pty Ltd (in liq) [2026] FCA 98, Anderson J said at [46] that it was appropriate to consider the overarching purpose of civil practice and procedure provided by s 37M of the Act in the assessment of the interests of the administration of justice. In summary that purpose includes the just determination of proceedings, the efficient use of judicial and administrative resources, the efficient disposal of the Court’s caseload, the disposal of proceedings in a timely manner and the resolution of disputes at a cost proportionate to the importance and complexity of the matters in dispute.

10    In Munaretti v ASC Fountain Gate [2019] FCA 949 at [11]–[13], Wheelahan J considered that in circumstances where the issue in the proceeding raised questions of law not yet determined by a superior court, it was appropriate that the proceeding remain in the Federal Court (albeit at a time when r 27.12 of the Rules provided, as one factor for the Court to take into account, whether the proceeding sought to be transferred is likely to involve questions of ‘general importance’).

consideration

The relevance of the Rules, any associated matters, and the resources of the Federal Circuit and Family Court

11    As explained, the only relevant rule provides that the Federal Court must consult the Chief Justice, who in turn must consult the Chief Judge of the Federal Circuit and Family Court in relation to the proposed transfer, before making an order under s 32AB.

12    There are no matters pending in the Federal Circuit and Family Court associated with the present proceeding.

13    There was no dispute that the Federal Circuit and Family Court has jurisdiction to hear and determine the proceeding under ss 539, 566 and 567 of the Fair Work Act and s 135 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). I am satisfied that the resources of the Federal Circuit and Family Court of Australia are “sufficient to hear and determine the proceeding”.

14    However, these considerations do not weigh in favour of the transfer in the circumstances of the present case.

Is the transfer in the interests of the administration of justice?

The importance and novelty of the claims

15    As to Ms Banks’ claims under s 333E of the Fair Work Act, the parties were not able to direct the Court’s attention to any consideration of that section, and the related sections, by any court. The sections have been in effect since December 2023. The sections seek to impose “limitations on fixed term contracts”. Ms Banks says that the fact that this proceeding involves the first judicial consideration of those sections is a reason to refuse the transfer. She says a determination on those sections has the potential to impact others in similar positions.

16    The Melbourne Archdiocese says that the claim under s 333E is of doubtful merit because Ms Banks would be covered by the “high income threshold” exception contained in s 333F(1)(e). There remains a contest about that exception and I am unable to determine it for the purposes of the transfer application. Whilst the Melbourne Archdiocese emphasises the “fact-specific” nature of the claims, I accept as Ms Banks contends that conclusions on the operation of s 333E, and its related provisions, have at least the potential for broader application.

17    I am satisfied that the relative novelty of the claim under s 333E, and the desirability of this Court’s consideration of that section, are matters that weigh in favour of refusing the transfer.

18    As to Ms Banks’ claims under s 50 of the Fair Work Act, regarding the alleged breaches of the Enterprise Agreement, she says they are important contraventions of obligations including obligations of procedural fairness. She says those obligations include obligations to notify outcomes, to provide particulars of allegations, and to only stand down an employee in circumstances that are substantively fair. She says those obligations are important and affect others covered by the Enterprise Agreement. She also emphasises the need for consideration of the breadth of the stand down power. The Melbourne Archdiocese denies any breach of the Enterprise Agreement.

19    I am satisfied that a determination by this Court of the breadth of the important procedural and other obligations under the Enterprise Agreement, is a matter that weighs in favour of refusing the transfer. Again, whilst the Melbourne Archdiocese emphasises the “fact-specific” nature of the claims, I accept as Ms Banks contends that conclusions on the breadth of the Enterprise Agreement obligations have at least the potential for broader application.

20    Both parties made criticisms of the other’s pleadings; it is not necessary for me to determine those criticisms, save to say that the conclusion that I have reached about the importance and novelty of the claims must be based on the pleadings as they presently stand.

Time and cost of the proceeding

21    The Melbourne Archdiocese relies upon an affidavit of Mr Adam Foster affirmed on 31 July 2026. Mr Foster sought to extrapolate, from both courts’ annual reports, relative finalisation rates of proceedings. However, the Melbourne Archdiocese properly accepted that whilst it submits that the proceeding might be determined more quickly in the Federal Circuit and Family Court, it was difficult to say with any certainty that it would be, or if so by how much. There is no doubt that both courts have a significant caseload.

22    I observe also that as the docket judge I already have a level of familiarity with the pleadings and issues in this proceeding. That favours the matter remaining in this Court, although I accept as the Melbourne Archdiocese submits that the matter is in its early stages.

23    The Melbourne Archdiocese suggested that the costs in the Federal Circuit and Family Court would be less. Again, it properly accepted that that depended on the complexity and length of the matter, and it was difficult to assess with precision. I am conscious of the fact that the claims are brought under the Fair Work Act and are subject to the costs restrictions in s 570 of that Act.

24    The time and costs factors weigh only marginally in favour of the transfer application.

Section 37M considerations and conclusion

25    As explained, the overarching purpose in s 37M of the Act is a relevant consideration in the assessment of the interests of the administration of justice. The purpose includes the just determination of proceedings, the efficient use of judicial and administrative resources, the efficient disposal of the Court’s caseload, the disposal of proceedings in a timely manner and the resolution of disputes at a cost proportionate to the importance and complexity of the matters in dispute. I have considered those matters, particularly where they overlap with the matters discussed above.

26    In all of the circumstances, and particularly given the novelty and potential importance of the Federal Court’s determination of the claims, I consider that it is in the interests of the administration of justice for the matter to remain in this Court. The respondent’s interlocutory application for transfer of these proceedings to the Federal Circuit and Family Court will be dismissed. Noting that the parties raised the prospect of costs, albeit within the context of s 570 of the Fair Work Act, I will reserve costs. I will otherwise list the matter for a case management hearing in one week’s time.

Associate:

Dated:    15 September 2026