Federal Court of Australia

Bonney v Watarra Aboriginal Corporation RNTBC (No 3) [2026] FCA 558

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth), the applicant’s claim for damages against the first respondent is summarily dismissed.

2.    The first respondent’s application for summary judgment is otherwise dismissed.

3.    The applicant must pay the first respondent’s costs of the summary judgment application, to be taxed if not agreed.

4.    The notice of objection to competency filed by the second respondent on 4 December 2025 is adjourned to the final hearing for determination.

5.    The applicant must pay the third respondent’s costs of and incidental to the proceeding.

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

REASONS FOR JUDGMENT

JACKSON J:

1    The applicant, Ms Jennifer Bonney, commenced this proceeding seeking judicial review under the Administrative Decisions Judicial Review Act 1977 (Cth) (ADJR Act) of certain decisions made by the various respondents to the proceeding.

2    Ms Bonney does not have legal representation. The nature of the originating application has been outlined in the earlier decision of Bonney v Watarra Aboriginal Corporation RNTBC [2025] FCA 1451 (Bonney (No 1)). In that decision, I granted summary dismissal of the claim against the then third respondent, Roe Legal Services. The remaining ‘decisions’ that Ms Bonney seeks to challenge under the ADJR Act in this proceeding are:

(a)    a decision of the second respondent, the Office of the Registrar of Indigenous Corporations (ORIC), not to recognise Ms Bonney as a founding member of the first respondent, Watarra Aboriginal Corporation RNTBC; and

(b)    conduct of the third respondent, Grant Thornton Australia, in recording the minutes of meetings for Watarra, and previously for the Darlot native title claim group, they being the common law holders for whom Watarra holds native title on trust pursuant to the determination in Harrington-Smith on behalf of the Darlot Native Title Claim Group v State of Western Australia (No 2) [2022] FCA 764.

3    Watarra applies for summary dismissal of the claim against it. ORIC has filed a notice of objection to competency of the originating application for judicial review. Grant Thornton also applied for summary dismissal of the claim against it, but at the hearing of that application the claim against the third respondent was dismissed by consent, leaving only the question of the costs of the application. As a result, the only remaining ‘decision’ Ms Bonney seeks to challenge under the ADJR Act is the decision of ORIC not to recognise her as a founding member of Watarra.

4    For reasons given below, summary dismissal will be granted with respect to the claim for damages sought by Ms Bonney in favour of Watarra. But that is not dismissal of the entire claim as against Watarra, which will remain as a respondent. The determination of whether the claim against ORIC should be dismissed as incompetent will be adjourned to the final hearing in this matter.

5    It is convenient to consider ORIC’s notice of objection to competency first because, as will be explained, its determination affects the outcome of Watarra’s application for summary judgment.

ORIC’s objection to competency

6    ORIC’s notice filed pursuant to r 31.05 of the Federal Court Rules 2011 (Cth) seeks that Ms Bonney’s application against it be dismissed, because the Court has no jurisdiction under s 8(1) of the ADJR Act to determine it.

7    ORIC’s objection to competency contains two limbs which operate in the alternative. First, it submits that it has not made any ‘decision’ to which the ADJR Act applies. Second, it submits that, in the alternative, there is no ‘decision’ under the ADJR Act because there has been no interest of Ms Bonney’s that has been adversely affected.

Whether Ms Bonney is complaining about an administrative decision

8    ORIC submits that no ‘decision’ under the ADJR Act was made because ORIC made no decision not to recognise Ms Bonney as a founding member of Watarra. On 29 March 2022, ORIC issued a certificate of registration of Watarra as a corporation registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act). On 30 August 2022, it registered Watarra as a registered native title body corporate. ORIC submits that at no stage did it make a decision not to recognise Ms Bonney.

9    Noting again that Ms Bonney does not have legal representation, this characterisation of the relevant decision reads her application for judicial review in a narrow way. A broader reading is fairly open. It is true that the focus in paragraph 1(a) of Ms Bonney’s originating application does concern what she claims is a decision not to recognise her as a founding member of Watarra. But it is possible to read this paragraph in conjunction with paragraph 2 of the grounds of review in the application as a way of describing the effect of ORIC registering Watarra in circumstances where the list of members did not include Ms Bonney. Read in this way, the decision Ms Bonney is challenging – a decision to register Watarra as an Aboriginal corporation – may be an administrative decision capable of challenge under the ADJR Act. None of this is to foreclose ORIC raising the point at trial, but I am not satisfied that it requires the summary dismissal of the claim against ORIC as incompetent.

A ‘person aggrieved’

10    Section 5(1) of the ADJR Act allows a person who is ‘aggrieved’ by a decision to which the Act applies to seek a review of that decision. As to the second limb of ORIC’s objection, for Ms Bonney to be a ‘person aggrieved by a decision’ under the ADJR Act, she must relevantly be ‘a person whose interests are adversely affected by the decision’: ADJR Act s 3(4)(a)(i). ORIC submits that there has been no ‘decision’ under the ADJR Act because no interest of Ms Bonney’s has been adversely affected by ORIC’s decision to register Watarra and as such, she is not an ‘aggrieved person’ for the purposes of s 5 of the ADJR Act.

11    Ms Bonney’s claim against ORIC centres on ORIC’s alleged failure to recognise her as a ‘founding member’ of Watarra. Her name did not appear on Watarra’s membership list when the corporation was registered on 29 March 2022, and it was not included until 2 November 2022, when ORIC published an updated list. ORIC submits that ‘The Rule Book of Watarra Aboriginal Corporation’ does not confer any different status, rights, privileges or obligations on members based on when they became members or whether they are a ‘founding’ member or not. As such, it submits that the period of approximately eight months following registration during which Ms Bonney was not a member of Watarra had no adverse effect on her legal interests.

12    At the hearing, counsel for ORIC submitted that Ms Bonney had not put forth any argument that any interest beyond her legal interests (that is, her entitlements under the Watarra Rule Book) had been adversely affected by her non-recognition as a member or a founding member during this eight month period. As such, counsel submitted that it was not necessary to consider whether, for the purposes of the ‘person aggrieved’ test, the interests capable of being adversely affected extended beyond the legal and economic interests typically recognised under the common law of Australia, nor was it necessary to establish the outer boundaries of these interests.

13    In Argos Pty Ltd v Corbell [2014] HCA 50; (2014) 254 CLR 394, Hayne and Bell JJ at [61] recognised that ‘interests’ capable of being adversely affected may be broader than legal interests and economic interests (citations omitted):

The focus of the inquiry required by the words is upon the connection between the decision and interests of the person who claims to be aggrieved. The interests that may be adversely affected by a decision may take any of a variety of forms. They include, but are not confined to, legal rights, privileges, permissions or interests. And the central notion conveyed by the words is that the person claiming to be aggrieved can show that the decision will have an effect on his or her interests which is different from (“beyond”) its effect on the public at large. Here, the effect was said to be economic.

14    Ms Bonney relies on her affidavit affirmed on 2 October 2025 in support of her originating application for judicial review. At [36] to [43] of that affidavit, Ms Bonney describes her family connection to Darlot country. In particular, [36] of the affidavit reads:

I take offence that my name is not included as a founding member of Watarra Aboriginal Corporation.

15    Counsel for ORIC submitted that ‘taking offence’ does not ‘rise to the level of putting evidence before the Court that there is some cultural significance to being a founding member’ at ts 19. But I am not satisfied that this describes the evidence fully. The rest of this section of Ms Bonney’s affidavit goes on to read:

37.    Exhibit “JB5” is a copy of photos of my family over four generations when I was a few months old.

38.    I lived in Kalgoorlie-Boulder for twenty years, and I often travel to the northern goldfields to attend native title meets, attend family funerals, visiting families or attending meetings when I was a former ATSIC Regional Councillor.

39.    My family have a strong physical and spiritual connection to Darlot country.

40.    My mother Gladys Bonney (deceased) grew up in the northern goldfields where the Darlot Native Title Claim exists. She was very strict about our Aboriginal Culture and passed it down to our family. My mum was a strong woman who didn't hesitate to question anything she disagreed with. It is a blessing for my mother to visit me in spirit and she helps me a lot.

41.    My grandmother Ida Tucker (nee Ashwin) and great grandmother Telpha Woniton (Ashwin) were born and raised in the northern goldfields on Darlot country. Telpha was a strong spiritual Leader. I too am blessed that Telpha often visits me and protects me.

42.    Telpha is the granddaughter of Majika.

43.    Majika is an Apical Ancestor on the Darlot Native Title Claim.

16    When read as a whole, this section of Ms Bonney’s affidavit can be understood as suggesting that some other interest beyond a legal interest has been adversely affected by ORIC’s decision to register Watarra without including her as a founding member. It can be described, perhaps loosely, as an interest that derives its character from the Aboriginal culture of which Ms Bonney is a part. ORIC made no submission, either in its written submissions or when pressed at the hearing, that an interest of that kind was not capable of making someone ‘aggrieved’ for the purposes of the ADJR Act.

17    Recognising the uncertainty surrounding the nature of Ms Bonney’s aggrievement, I am not presently prepared to find in favour of the second limb of ORIC’s objection to competency. The question as to whether these matters, in a native title context, are sufficient to make Ms Bonney an aggrieved person under s 5 of the ADJR Act is a matter appropriately determined at trial.

18    As a result, the question of whether to dismiss Ms Bonney’s claim against ORIC pursuant to the notice of objection to competency will be adjourned to the final hearing. Both she and ORIC will have the opportunity to put on further submissions in respect of these points.

Watarra’s summary dismissal application

19    Ms Bonney does not articulate in her originating application a decision that Watarra has made that she seeks to challenge under the ADJR Act. She does, however, claim damages against Watarra.

20    Watarra seeks summary judgment under s 31A(2) of the Federal Court of Australia Act 1976 (Cth). Section 31A(2) empowers the Court to enter judgment in favour of a party that is defending a proceeding in whole or in part if the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding.

21    Watarra relies on three central arguments in support of its application for summary dismissal. First, that Watarra has made no ‘decision’ under an enactment that is challenged by Ms Bonney. The ADJR Act, relevantly, only applies to decisions of an administrative character that are made under Commonwealth legislation. Second, that Watarra did not exist at the time the application for registration was lodged, and only came into existence as a legal personality when ORIC accepted the application for registration. Third, that the relief sought by Ms Bonney against the third respondent, being damages, cannot be awarded under the ADJR Act.

22    Ms Bonney applies for judicial review under s 5 of the ADJR Act. Section 5(1) permits a ‘person who is aggrieved by a decision to which [the] Act applies’ to apply to this Court ‘for an order of review in respect of the decision’ on certain specific grounds. A ‘decision to which [the] Act applies’ is defined in s 3(1) as a ‘decision of an administrative character made, proposed to be made, or required to be made … under’ legislative instruments, including Commonwealth statutes.

23    Watarra submits that Ms Bonney has not identified in her application any decision of Watarra that she is challenging. It might be possible, reading Ms Bonney’s application generously, to characterise the decision she is challenging as that of Watarra to lodge the application for registration with ORIC under the CATSI Act. But for reasons similar to those given as in Bonney (No 1), that is not a ‘decision’ capable of challenge under the ADJR Act. It is, rather, a clerical act, involving no deliberation or the reaching of any determination or conclusion. Any preparatory or preliminary decision that led to the incorporation of Watarra was not one of an administrative character made under an enactment, and any impact on legal rights and interests would be too indirect and remote to make it a decision of the requisite kind. In the absence of any ‘decision’ challenged under the ADJR Act, Ms Bonney has no reasonable prospect of prosecuting her claim against Watarra.

24    Further, as Watarra says, it could not be a decision that it made since, by definition, it did not exist before registration occurred. Watarra only came into existence as a legal personality when ORIC accepted the application and as such, it could not have made any decision capable of challenge under the ADJR Act.

25    The final point raised by Watarra is that the only relief Ms Bonney seeks against it is damages, which is not a remedy available under the ADJR Act. The orders that the Court may make on an application for review under that Act are set out in s 16 and an order for damages is not among them. Section 16(d) empowers the Court to make any order ‘necessary to do justice between the parties’ but this has not been interpreted to include an order for damages as an appropriate remedy: see Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637 at 645. In any event, having established that Watarra has not made any decision of an administrative character capable of challenge under the ADJR Act, Watarra has not done anything giving rise to a right to relief for Ms Bonney.

26    Were that a complete description of Watarra’s position in the proceeding, summary dismissal would be granted in favour of Watarra in respect of Ms Bonney’s entire claim against it. But it is necessary to consider the potential impact on Watarra of the relief that Ms Bonney seeks against ORIC.

27    Since ORIC’s notice of objection to competency has been adjourned to the final hearing, the relief sought by Ms Bonney at paragraph 3 of her originating application remains available. This paragraph reads:

The Office of Registrar of Indigenous Corporation [second Respondent] to recognise the Applicant and other persons as founding members of –

a.    Watarra Aboriginal Corporation; and

b.    Watarra Aboriginal Corporation RNTBC.

28    Ms Bonney thus seeks an order that ORIC recognise her and other persons as founding members of Watarra. It is not appropriate to decide here whether relief of that kind is available; no party has submitted to date that it is not. But it is relevant to have regard to the nature of that relief, assuming that Ms Bonney ultimately succeeds in her claim against ORIC. Under s 16 of the ADJR Act, the Court has discretion as to the type of relief awarded, including the power to set aside a decision and the power to refer the matter to which the decision relates to the original decision-maker for reconsideration according to law.

29    If the decision to accept the registration of Watarra under the CATSI Act in circumstances where the list of founding members did not include Ms Bonney were to be set aside and reconsidered, that may not be a matter of simply amending a membership list. An application for registration under s 21.1 of the CATSI Act must include a membership list. If the application is accepted, these members become the founding members that Ms Bonney refers to. While the CATSI Act does not use the term ‘founding member’, s 138.1 of the Act differentiates between a person who ‘is a member of the corporation on its registration’ and a person who ‘agrees to become a member of the corporation after its registration’ where ‘his or her name is entered on the register of members’. Acceptance of the registration application therefore brought Watarra into existence on certain terms with respect to these ‘founding members’. An order in respect of that decision under s 16 of the ADJR Act may conceivably affect the registration status of Watarra, which would directly affect its interests.

30    The principles governing when a party should be joined as a respondent are well established. They were articulated by the Full Court in News Limited v Australian Rugby Football League Limited (1996) 64 FCR 410 at 523-525 and relevantly summarised in Frigger v Trenfield (No 6) [2020] FCA 934 at [29] as follows:

…

(2)    … the question can be framed as whether the person's rights against or liabilities to any party to the action in respect of the subject matter of the action will be directly affected by any order which may be made in the action (here, the court was relying on the often cited observations of Lord Diplock in Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 at 55-56).

(3)    If an order is made that directly affects a third person's rights against or liabilities to a party, if the person is not joined as a party, the order will be set aside.

(4)    Where the orders sought establish or recognise a proprietary or security interest in land, chattels or a monetary fund, all persons who have or claim an interest in the subject matter are necessary parties. This is because an order in favour of the claimant will, to a corresponding extent, be detrimental to all others who have or claim an interest.

(5)    In other cases the test involves matters of degree and judgment having regard to the practical realities of the case, and the nature and value of the rights and liabilities of the third party which might be directly affected.

(6)    Attention must be directed to the orders sought in the proceedings. It is the effect of the orders on the third party that must be determined.

31    It is not enough that a person whose rights are likely to be affected by an order sought is put on notice of the proceeding; the person needs to be joined as a respondent: see News Limited at 526.

32    Applying these principles leads to the conclusion that Watarra is a necessary respondent, for so long as Ms Bonney seeks relief against ORIC. The fact that Ms Bonney will no longer seek any substantive relief directly against Watarra does not remove the potential for any order made at a final hearing with respect to ORIC’s decision to affect Watarra’s legal rights.

33    The only relief sought directly against Watarra is damages, which is not available under the ADJR Act, and in any event, Ms Bonney has no reasonable prospect of establishing that Watarra has made a decision of an administrative character capable of review. To that extent, the claim against Watarra must fail and an order for partial summary dismissal of the claim will be made.

34    Given Ms Bonney no longer seeks relief directly against Watarra, whether Watarra chooses to participate further in the proceeding or take an active role at the final hearing is a matter for it to decide. It will be open to it to seek appropriate directions to minimise any legal costs it continues to incur. But at least until the notice of objection to competency filed by ORIC is determined, Watarra must remain a party to the proceeding to ensure that any orders made that affect its interests are made in circumstances where it has an opportunity to be heard.

35    Counsel for Watarra did not make submissions as to costs at the hearing but rather relied on the orders sought in its application for summary dismissal. Watarra has vindicated its position that no relief should be sought against it, and it only remains a party to the proceeding because of the potential impact of relief against ORIC. Watarra is entitled to its costs of the summary judgment application.

Grant Thornton’s costs

36    The claim against the third respondent, Grant Thornton, was dismissed by consent at the hearing. Counsel for Grant Thornton submitted that costs should follow the event. In oral submissions, counsel referred to the similarity between the grounds of her client’s application and the grounds of Roe Legal Services’ successful application for summary judgment in Bonney (No 1), and to my earlier decision to order Ms Bonney to pay Roe Legal Services’ costs of and incidental to the proceeding (albeit in that case limited to the filing fee in respect of Roe Legal Services’ interlocutory application filed on 7 November 2025).

37    While Grant Thornton’s summary dismissal application has not proceeded to determination, that was plainly the result of capitulation on Ms Bonney’s part. She conceded at the beginning of the hearing of the summary judgment application that Grant Thornton should be removed as a party, and hence an order to that effect was made by consent. While that concession was sensible and helpful, it was made too late. Ms Bonney should have realised that the decision in Bonney (No 1) made it inevitable that summary judgment would be granted in Grant Thornton’s favour. Grant Thornton is entitled to its costs of the proceeding, including its costs of the summary judgment application.

Associate:

Dated:    8 May 2026