Trustees of the Missionaries of the Sacred Heart v Jackman

File Number(s): 2025/00336974

ex tempore JUDGMENT (REVISED)

SUMMARY

1. By motion filed on 31 March 2026, the defendant, Ms Jackman, seeks orders that these proceedings be transferred to the Federal Court of Australia. For the reasons which follow, being principally that these proceedings are fixed for hearing in the Expedition List for three day in three weeks, the motion will be dismissed.

2. Ms Jackman was represented by Mr I Latham of Counsel. The plaintiffs were represented by Mr M Condon of Senior Counsel with Mr J Simpkins of Counsel.

BACKGROUND

3. Putting the matter somewhat loosely, the first plaintiff (T****rustees) is a body corporate which, pursuant to the Roman Catholic Communities*’* Lands Act 1942 (NSW), is the corporate emanation in New South Wales of the Roman Catholic religious order commonly referred as The Missionaries of the Sacred Heart or the MSCs. The second plaintiff (C****orporation) is a corporation which has been incorporated to act as the nominated defendant or respondent to sexual abuse claims against entities or persons associated with the MSCs.

4. Ms Jackman "worked for the MSCs". I put that in quotation marks because who precisely, for the purposes of Australian civil law, was her employer is a central question in these proceedings. I make the reference to civil law to distinguish it from the fact that in the background of these proceedings there may be issues of juridical personality under the canon law of the Roman Catholic church, but they are not for determination by this Court.

5. The plaintiffs say Ms Jackman was employed by the Trustees. Ms Jackman denies this and says that she was employed by a different unincorporated MSC entity (unincorporated association) but has not brought a cross-claim inviting this Court to make a positive finding to that effect. The plaintiffs do not invite the Court to declare who was Ms Jackman's employer if it was not the Trustees.

6. Ms Jackman's employment was terminated by the MSCs on 16 July 2025. These proceedings were commenced by summons filed on 2 September 2025. The plaintiffs’ claim is solely one brought in confidential information in relation to 796 documents said to be in Ms Jackman's possession. The claim is brought in contract by reference to what is said to have been her contract of employment, and on general equitable grounds.

7. It is important to note that quite apart from the Trustees’ claim against Ms Jackman based upon her alleged employment relationship with them, the Corporation has an independent claim against her in relation to some or all of the documents which does not depend upon a relationship of employment between the Corporation and Ms Jackman. In other words, whoever was her employer, the Corporation asserts an independent equitable basis for relief in relation to some or all of the documents.

8. These proceedings are listed for hearing before me in the Expedition List on 28 to 30 April 2026 subject to the determination of the motion. The parties are agreed that whether the documents are confidential should be determined by a referee after the Court determines all other issues in the proceedings. They are also agreed that the proceedings will be ready to be heard on the allocated dates.

9. Shortly after her termination, Ms Jackman began a process which led to a conciliation hearing in the Fair Work Commission. That did not resolve the dispute. That process was a necessary precondition to her commencement of proceedings on 31 March 2026 in the Federal Court of Australia (FCA) relying upon the general protection provisions of the Fair Work Act 2009 (Cth) (Jackman F****CA proceedings). Those proceedings are brought against the unincorporated association. The plaintiffs do not suggest that there was any delay on the part of Ms Jackman in commencing those proceedings.

10. On the same day as the Jackman FCA proceedings were commenced, Ms Jackman's lawyers commenced similar proceedings for another ex-employee of the MSCs, Ms Anne-Marie Snelling (Snelling FCA proceedings).

11. There are factual overlaps between the Jackman and Snelling FCA proceedings, both of which have been allocated a first directions date in the FCA. The plaintiffs, for their part, accept that Ms Jackman and Ms Snelling were employed under identical contracts of employment.

CONSIDERATION

12. There was no dispute about the relevant principles for the determination of an application of this kind. Nor was there any dispute that this application required the Court to determine what was in the interests of justice for the purposes of s 5(1)(b)(ii)(C) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) .

13. I respectfully adopt and apply this convenient summary by Chen J in Comino v Kremetis (2023) 110 NSWLR 224; [2023] NSWSC 32:

[70] The authorities dealing with the residual provision (viz., the “interests of justice”) are well-established. Relevantly, they may be summarised as follows:

(1) The determination of whether it is in the "interests of justice" under s 5(2)(b)(iii) for proceedings to be transferred depends on what is the "more appropriate" forum for those proceedings without any particular emphasis in favour of the forum selected by the plaintiff: James Hardie & Company Pty Limited v Barry (2000) 50 NSWLR 357; [2000] NSWCA 353 at [87] (‘Barry’); BHP Billiton Limited v Schultz (2004) 221 CLR 400; [2004] HCA 61 at [14] and [25]. (‘Schultz’). This last matter is sometimes expressed to the effect that there is no principle in the application of the Act that the jurisdiction chosen by the plaintiff and regularly invoked is not lightly to be overridden: Schultz at [25].

(2) Although it has been suggested that there is strictly no onus upon either party to persuade the Court to transfer the proceedings or not, the better view is that the applicant for transfer has to persuade the Court to make the order it seeks: Barry at 380 [100]. That is, unless “it appears” that the proceedings should be determined in another court, “the court does not have power under the act to transfer the proceedings. To that extent it may be said that an applicant assumes some onus of persuasion”: Irwin v State of Queensland [2011] VSC 291 at [14](f).

(3) The Court must make a “management decision as to which Court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute”: Bankinvest AG v Seabrook (1988) 14 NSWLR 711, 714 (‘Bankinvest’); Barry at [87]; Schultz at [14] and [63]. Put slightly differently, the interests of justice are “concerned with the question of which jurisdiction is better placed to determine a dispute between the parties from a practical point of view”: Opes Prime Stockbroking Ltd (In Liq) (Scheme Administrators Appointed) v Stevens [2014] NSWSC 659 at [25].

(4) Rather than the selection of the most advantageous, or least disadvantageous, forum for one of the parties, the “interests of justice” are to be judged by objective factors to facilitate identification of the “natural forum”, in which it might be expected that the dispute would fall to be resolved, with its concomitant juridical advantages and disadvantages for each party: Valceski at [69].

(5) The interests of justice include a range of matters such as the governing law, forensic advantages and disadvantages, balance of convenience to the parties and the witnesses and convenience to the Court system: Barry at [95].

(6) If “it appears” that one court is more appropriate than the other, however so slightly, then a transfer to the more appropriate court is mandatory; no question of discretion arises: Valceski at [70].

14. It was submitted for Ms Jackman that upon transfer to the FCA, that court could determine all issues between the parties including the central issue of who was her (and Ms Snelling’s) employer. That is the essential common issue between these proceedings and the Jackman and Snelling FCA proceedings. It is apparently intended that an application will be made for those two FCA proceedings to be heard and determined together. There is also a common issue as to whether the contractual confidentiality provisions are contrary to public policy.

15. It was also put that at least three witnesses in Ms Jackman's case will have to give evidence in both these and the Jackman FCA proceedings, and that Ms Jackman is of limited means so that she should not have to be burdened by running two sets of proceedings, being to defend the proceedings in this Court and to prosecute the Jackman FCA proceedings.

16. The Court has had the advantage of thorough written submissions from both parties supplemented by oral submissions today. I have taken all of those into account. After due consideration, the Court prefers the arguments put by the plaintiffs as to why it is not, in the interests of justice, more appropriate for these proceedings to nbe heard in the FCA.

17. First, the overwhelming consideration in this case is that these proceedings are fixed for hearing in three weeks and are in a position to proceed at that time. This means that there will be prompt determination of the essential issue of who was Ms Jackman's employer. If the plaintiffs are correct, then at least the Jackman FCA proceedings are likely to fall away because Ms Jackman in those proceedings is suing, on that outcome, the wrong party as her alleged employer.

18. There is a substantial public interest in the prompt determination of proceedings that are ready to be heard. In contrast to a final hearing of these proceedings in three weeks, the two FCA proceedings have not yet even had their first directions hearing. Understandably, no one has proffered a view as to when those proceedings will be finally determined.

19. Second, that public interest in the hearing going ahead is fortified by the fact that these proceedings concern confidential information of a particularly sensitive kind. As Mr Condon SC submitted, this is not the usual confidential information case that the Court might see concerning customer lists and other confidential commercial documents. It appears that most, if not all, of the documents the subject of these proceedings relate to sexual abuse claims made against the MSCs and contain sensitive information about numerous third party individuals. In my respectful opinion, there is an additional and very real public interest in a dispute about confidential documents of that kind being determined as quickly as possible. That will only happen if these proceedings stay in this Court.

20. Third, other than Ms Jackman, there is no commonality of parties between these proceedings and the two FCA proceedings. There is also a real issue as to whether the FCA would have jurisdiction upon transfer of these proceedings to that court to deal with the Corporation’s quite separate claims to confidentiality that do not depend on Ms Jackman having been its employee. It is not necessary for me to come to a final view on that question. It is sufficient that there is arguable doubt about it.

21. Fourth, as between the parties to these proceedings, this Court's determination of the identity of Ms Jackman’s employer will give rise to an issue estoppel between them that would operate in the Jackman FCA proceedings. I have not overlooked that it was submitted that Ms Snelling would not be bound by any such determination in these proceedings, and that she should not be shut out of seeking to argue a contrary position should the plaintiffs succeed in these proceedings in this Court.

22. Because she is not a party to these proceedings, Ms Snelling would not be bound by a finding in this Court contrary to her interests in the Snelling FCA proceedings. However, I accept Mr Condon SC's submissions that as a practical matter it would be unlikely that she would be advised to seek to argue a contrary position. However, what Ms Snelling can, may or may not do in her proceedings in the FCA is not a relevant matter for me to take into account in the Court's determination of the interests of justice in the dispute between the parties before it.

CONCLUSION

23. For these reasons, the motion will be dismissed. I will hear the parties as to costs.

**********