Bonney v NTS Goldfields Limited [2025] FCA 1652

1. Section 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) provides:

(2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a) the first party is defending the proceeding or that part of the proceeding; and

(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

1. By the first of the orders sought in the Bonney Application, Ms Bonney seeks summary judgment in relation to NTSG's own application for summary dismissal of her originating application. Where one party makes an application for summary judgment in its favour, it is unnecessary for the opposing party to file their own application for an order that the application for summary judgment itself be summarily dismissed. The hearing of NTSG's application for summary judgment adequately provided Ms Bonney with the opportunity to advance her submissions as to why summary judgment should not be given against her.
2. In any event, Ms Bonney has not established that NTSG has no reasonable prospect of successfully prosecuting the Summary Dismissal Application. As explained above, the sole basis on which NTSG seeks summary judgment against Ms Bonney is that Ms Bonney's originating application seeks to attack a decision made by Mr Sherlock which has subsequently been the subject of a further decision, made by the NIAA on external review, and that, consequently, any alleged conflict of interest that Mr Sherlock may have had cannot affect the decision of the NIAA. The basis on which it is advanced is readily understandable and it is not possible to conclude that NTSG has no reasonable prospect of successfully prosecuting it.
3. The second order sought in the Bonney Application is an order that her originating application be determined in "the Native Title Section" of the Court. Such an order would not be legally meaningful, and there is no reason to make it. The Federal Court is not divided into "sections". Section 13 of the FCA Act provides that, for the purpose of the organisation and conduct of the business of the Court, it comprises two Divisions - the General Division and the Fair Work Division. The present proceedings are to be heard and determined in the General Division, the same Division in which applications under the NT Act are heard and determined. Proceedings in the Court are also administratively assigned to national practice areas (of which Native Title is one). As Ms Bonney's originating application involves a complaint about the exercise of power under the NT Act, it was assigned to the Native Title national practice area. There is no need for, and no utility in, the second order sought in the Bonney Application.
4. The fourth and fifth orders referred to in the Bonney Application (being the first of the "orders to consider") refer to the power of the Court to vary a determination of native title. While it is correct that the Court does have the power to vary a determination of native title in certain circumstances, on a fair reading of the originating application in the present proceeding, it relates to a confined issue concerning an administrative decision made by NTSG or Mr Sherlock, and whether that decision was affected by a conflict of interest on Mr Sherlock's part. It is not apparent that NTSG, which is (properly) the only respondent to the present proceedings, would be a respondent to any application Ms Bonney might make to vary a determination of native title. Any application of that kind which Ms Bonney might wish to pursue can be commenced as a separate proceeding in the Court.
5. Ms Bonney has not made any application to amend the originating application. If she wishes to commence different proceedings then that is a matter for her, but it would not be appropriate in this case, where the originating application relates to a single decision (and where NTSG, the only respondent, has conducted the proceedings on that basis), to permit Ms Bonney to amend the originating application and then to use these proceedings to prosecute a different kind of application against a different respondent or respondents.
6. Given that none of the substantive orders sought in the Bonney Application should be made, it is also not appropriate to order that NTSG pay Ms Bonney's costs.
7. For these reasons, the Bonney Application should be dismissed.

1. A subpoena may be issued only with the leave of the Court: Federal Court Rules, r 24.01. By the Subpoena, Ms Bonney seeks to compel NTSG to produce the anthropological report of Dr Palmer on which (so Ms Bonney asserts) NTSG relied in making the Assistance Decision. This is the same document that Ms Bonney sought by paragraph 1 of the Notice to Produce. For the same reasons that the Notice to Produce should be set aside insofar as it seeks that document, leave to issue the Subpoena should be refused.
2. Additionally, given that Ms Bonney had already issued the Notice to Produce seeking that document, and NTSG had applied to set aside the Notice to Produce but that application had not yet been heard, there was no need for a subpoena seeking the same document, and it would not be appropriate for the Court to grant leave to issue the Subpoena. Moreover, NTSG has already filed an affidavit deposing to the fact that it does not have a copy of Dr Palmer's report in its power, custody or control. Although I understand that Ms Bonney does not accept that that is true, it is to be expected that, if the Subpoena were to issue to NTSG, the response would simply be to confirm its position that it does not have, and so cannot produce, the document sought. The obligation of a party to comply with a notice to produce documents is functionally equivalent to the obligation to comply with a subpoena. In circumstances where NTSG has already adduced affidavit evidence that it does not have the document in question, Ms Bonney has not established that issuing the Subpoena would serve any proper forensic purpose.

1. NTSG seeks summary judgment pursuant to s 31A(2) of the FCA Act and r 26.01 of the Federal Court Rules. Insofar as it is relevant to an application made by a respondent, s 31A(2) has been set out at [37] above.
2. Rule 26.01(1) of the Federal Court Rules provides that a party may apply to the Court for an order that judgment be given against another party because the applicant has no reasonable prospect of successfully prosecuting the proceeding, or because no reasonable cause of action is disclosed. The same principles apply to summary judgment under s 31A(2) and r 26.01: see, eg, Ekermawi v Commonwealth [2025] FCA 1141 (Ekermawi) at [29].
3. In Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 (Spencer), the scope of s 31A of the FCA Act was described by French CJ and Gummow JJ in the following terms (at 130-1 [22]):

The section authorises summary disposition of proceedings on a variety of bases under its general rubric. It will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the long-standing category of cases which are "frivolous or vexatious or an abuse of process". The application of s 31A is not, in terms, limited to those categories.

1. Consideration of whether a party has reasonable prospects of successfully prosecuting an application is not confined to the terms of the application itself: Spencer at 131 [23], citing White Industries Australia Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298; [2007] FCA 511 at 309 [47].
2. The summary dismissal power is not to be exercised lightly: Spencer at 141 [60]. The respondent - in this case, NTSG - bears the onus of persuading the Court that the proceedings have no reasonable prospect of success: Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256; [2013] FCA 641 at 271 [45]; Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 at [7].
3. In the alternative to summary judgment, NTSG seeks an order that the originating application be struck out in its entirety. Given the conclusion that I have reached regarding summary judgment, it will not be necessary to address the alternative order sought by NTSG.

1. Under the NT Act, a person who may hold native title may seek financial assistance in respect of native title claims, compensation claims and other related matters by making an application for assistance from the representative body for the relevant region under s 203BB of the NT Act. That is what Ms Bonney did: NTSG is a representative body. I note that a person who may hold native title may also apply directly for funding from the CEO of the NIAA in accordance with s 203FE of the NT Act, but that is not the course that has led to the present proceedings.
2. Section 203BB of the NT Act relevantly provides:

203BB Facilitation and assistance functions

General

(1) The facilitation and assistance functions of a representative body are:

(a) to research and prepare native title applications, and to facilitate research into, preparation of and making of native title applications; and

(b) to assist registered native title bodies corporate, native title holders and persons who may hold native title (including by representing them or facilitating their representation) in consultations, mediations, negotiations and proceedings relating to the following:

(i) native title applications;

(ii) future acts;

(iii) indigenous land use agreements or other agreements in relation to native title;

(iv) rights of access conferred under this Act or otherwise;

(v) any other matters relating to native title or to the operation of this Act.

Facilitation and assistance functions only exercisable on request

(2) A representative body must not perform its facilitation and assistance functions in relation to a particular matter unless it is requested to do so.

matter means a native title application, or a consultation, mediation, negotiation or proceeding of a kind referred to in paragraph (1)(b).

1. Section 203BI provides for internal review by the representative body. It states:

The internal review functions of a representative body are:

(a) to provide a process for registered native title bodies corporate, native title holders and persons who may hold native title to seek review by the representative body of its decisions and actions, made or taken in the performance of its functions or the exercise of its powers, that affect them; and

(b) to publicise that process appropriately.

1. Section 203FB of the NT Act entitles a person who is affected by a decision of a representative body not to assist them to apply to the Secretary of the Department for a further view of the decision. Section 203FB provides, so far as relevant:

203FB Review of assistance decisions

Persons may apply for review

(1) An Aboriginal person or Torres Strait Islander affected by a decision of a representative body not to assist him or her in the performance of its facilitation and assistance functions under section 203BB may apply to the Secretary of the Department for review of the decision.

...

Appointment of person to conduct the review

(2) As soon as practicable after receiving the application, the Secretary must:

(a) review the representative body's decision; or

(b) appoint to conduct the review a person who, in the Secretary's opinion, has skills or knowledge in relation to matters of substantial relevance to conduct the review.

1. References to the Secretary of the Department in this context are to be read as references to the CEO of the NIAA: see Burarrwanga v Chief Executive Officer of the National Indigenous Australians Agency [2024] FCA 1476 (Burarrwanga) at [6].
2. Section 203FBA makes provision for the manner in which the review is to be carried out when the CEO appoints a person to carry out the review under s 203FB(2)(b). It relevantly provides:

External review

This section applies to external review

(1) This section applies if the Secretary of the Department appoints a person under paragraph 203FB(2)(b) to conduct the review.

(2) Subject to subsection (4), the person appointed must review the representative body's decision and report to the Secretary whether:

(a) the decision should be affirmed; or

(b) the Secretary should make funding available under section 203FE to a person or body for the purpose of performing specified facilitation and assistance functions of a representative body in relation to the matter to which the representative body's decision relates.

Matters to be taken into account when conducting review

(3) In reviewing the representative body's decision, the person appointed must have regard to:

(a) whether it would be consistent with priorities determined by the representative body under paragraph 203B(4)(a) to provide the assistance sought; and

(b) whether, to provide the assistance sought, the representative body would need to allocate or re-allocate resources in a way that interferes with the efficient performance of its functions; and

(c) whether the representative body would breach a condition imposed under section 203CA if the representative body were to provide the assistance sought; and

(d) if the assistance sought was in relation to an application under section 61:

(i) whether the provision of that assistance would promote an orderly, efficient and cost-effective process for making such applications; and

(ii) in a case where one or more other applications have been made or are proposed to be made in relation to land or waters covered by the application - whether the provision of the assistance sought would be reasonable given the need to minimise the number of applications covering the land or waters; and

(e) any other matter relevant to the merits of the decision.

1. Where a person is appointed under s 203FB(2), the CEO of the NIAA must, within a month of receiving the report of the appointed person, either affirm the decision under review or make funding available under s 203FE: see NT Act, s 203FBA(7).

The decision to which the originating application relates

1. The basis on which Ms Bonney's originating application seeks the setting aside of the Assistance Decision is that the decision-maker acting on behalf of NTSG, Mr Sherlock, had a conflict of interest. The decision was made by Mr Sherlock pursuant to a delegation, rather than by the CEO of NTSG, Ms Casley, because Ms Casley had identified that she herself may have had a potential conflict of interest.
2. As has already been mentioned above, after the Assistance Decision was made by Mr Sherlock, Ms Bonney applied for internal review pursuant to s 203BI of the NT Act. Although fulfilling the statutory function of an internal review, it was conducted by Mr Southalan, who was an independent barrister, not employed by NTSG. Mr Southalan affirmed the Assistance Decision.
3. Ms Bonney then applied for external review pursuant to s 203FB of the NT Act. The CEO of the NIAA referred the application to Mr Winram, who conducted a review of the kind contemplated by ss 203FB(2)(b) and 203FBA. Following the receipt of Mr Winram's report, a delegate of the CEO of the NIAA made the External Review Decision, being a decision to affirm the Assistance Decision.
4. In the present proceedings, Ms Bonney challenges only the Assistance Decision. She has not sought to challenge the decision that affirmed the Assistance Decision on internal review or the External Review Decision.

1. Given that the Assistance Decision made by Mr Sherlock has been the subject of both internal and external review, and the External Review Decision was the last administrative decision relating to Ms Bonney's application for assistance, it is convenient in this case to focus on the effect of the External Review Decision. This involves a consideration of the statutory scheme created by ss 203BB, 203FB and 203FBA of the NT Act.
2. I accept NTSG's submission that the external review process under s 203FB of the NT Act involves a de novo review on the merits. Section 203FBA(2) required Mr Winram, as the person appointed to conduct the review, to report to the CEO of the NIAA whether the Assistance Decision should be affirmed or whether the CEO should make funding available to a person or body for the purposes of performing the facilitation and assistance functions of a representative body in relation to the matter to which the Assistance Decision related.
3. The considerations prescribed by s 203FBA(3), to which the person conducting the review is to have regard, make it clear that their function is not limited to identifying error on the part of the representative body but involves a fresh determination of the merits of the application for assistance. In particular, the terms of s 203FBA(3)(e) demonstrate beyond doubt that the reviewer is legally required to have regard to all matters "relevant to the merits of the decision".
4. Section 203FBB is not directly relevant in this case, but it applies where the CEO of the NIAA conducts the review. Section 203FBB(3) reflects s 203FBA and confirms that the function of the CEO of the NIAA also involves a de novo review on the merits.
5. As was said in Tucker for Narnoobinya Family Group v Aboriginal and Torres Strait Islander Commission [2004] FCA 134 (Tucker) at [47], in relation to an earlier version of s 203FB:

The reviewer is not in any way bound by the factual basis upon which the representative body has made its decision. Nor is he or she limited to the materials which were before or considered by the representative body. On the other hand there is nothing to prevent the reviewer having regard to material considered by the representative body including anthropological reports and other matters.

1. Although s 203FB has been amended since the decision in Tucker, this is an apt explanation of the nature of a review under s 203FB, conducted in accordance with the requirements of s 203FBA. Although the ultimate decision is made by the CEO of the NIAA under s 203FBA(7), it is clear that the CEO's decision is also required to be made by reference to the merits.
2. In Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 (Plaintiff M174/2016), the High Court considered the regime for review of a "fast track reviewable decision" by the Immigration Assessment Authority (Authority) under s 473CC of the Migration Act 1958 (Cth). The High Court held (at 226 [17]) that the Authority was "engaged in a de novo consideration of the merits of the decision that has been referred to it" and that "the task of the Authority ... [was] to consider the application for a protection visa afresh and to determine for itself whether or not it [was] satisfied that the criteria for the grant of the visa [had] been met".
3. The plaintiff in Plaintiff M174/2016 had sought to challenge both the original decision of the delegate and the decision of the Authority following its review of that decision. Justices Gageler, Keane and Nettle explained the effect of the decision being affirmed by the Authority following its review on the merits as follows (at 241-2 [70]):

... [O]nce a fast track reviewable decision is affirmed by the Authority, it is the order of the Authority operating by force of s 473CC(2)(a) of the Act to affirm the decision of the Minister or delegate that alone gives the decision of the Minister or delegate legal operation. Once affirmed by the Authority, the decision of the Minister or delegate has no independent continuing legal operation by force of s 65 of the Act, whether actual or purported. For that reason, any defect of jurisdiction in the decision of the Minister or delegate can simply have no bearing on the legal position of the referred applicant.

1. Similarly, in Sunflower Care Services Pty Ltd v Commissioner of the NDIS Quality and Safeguards Commission (No 2) [2025] FCA 1442, Feutrill J considered the scheme of review provided for in s 100 of the National Disability Insurance Scheme Act 2013 (Cth). His Honour concluded (at [65]) that, after a review decision was made, it was the reviewer's decision that was "legally operative" and that, "[e]ven if the decision is made to confirm the original decision, and accordingly that decision remains intact, its legal force is derived from the reviewer's confirmation decision and not the original decision". See also Masterson v Commissioner of Police [2018] NSWSC 892 at [34]- [35].
2. The same conclusion applies in relation to a decision made on an external review under s 203FB of the NT Act. In circumstances where the external review provided for in ss 203FB and 203FBA of the NT Act involves a fresh decision on the merits, once the external review process was completed and a decision was made by the CEO of the NIAA to affirm the Assistance Decision, it was the External Review Decision that alone gave the Assistance Decision legal operation. The Assistance Decision thereafter had no independent continuing legal operation. Any defect in the Assistance Decision, including because of an alleged conflict of interest on the part of Mr Sherlock, could no longer have any bearing on the legal position of Ms Bonney. For this reason, the Court would not grant relief setting aside the Assistance Decision. To do so would have no legal effect for Ms Bonney, and would serve no purpose.
3. While Ms Bonney could potentially seek review of the External Review Decision, she has not done so, and she could not challenge that decision on the ground that the Assistance Decision was affected by an alleged conflict of interest on Mr Sherlock's part.
4. Ms Bonney argues that the word "may" (rather than "must") in s 203FB of the NT Act makes it clear that a person who has applied unsuccessfully for assistance under s 203BB is not under any obligation to seek external review of the decision by the CEO of the NIAA. While I accept that such a person is at liberty to decide whether or not to apply for external review of the decision, that is not relevant to the basis on which NTSG argues that the present proceedings should be summarily dismissed. What matters is that, in this case, Ms Bonney did seek an external review, and that has now resulted in the making of the External Review Decision.
5. Ms Bonney also submits that there had been an unreasonable delay on the part of the CEO of the NIAA in referring the matter to Mr Winram. She alleges that the delay was a serious breach of the NT Act. As the chronology of events set out at [6]-[12] above shows, Ms Bonney had commenced the present proceedings before Mr Winram was appointed to conduct the review in accordance with s 203FB. However, once Ms Bonney was informed that Mr Winram had been appointed to conduct the external merits review, she elected to continue with the external review process, notwithstanding that she had already commenced these proceedings. The fact that there was a delay before the external review application was referred to Mr Winram does not alter the fact that the External Review Decision, once made, became the "operative decision". I note that NTSG filed the Summary Dismissal Application only after the External Review Decision had been made.
6. This is not a case where Ms Bonney has elected to pursue judicial review of the Assistance Decision instead of seeking merits review. Had she done so, a question might arise, on the application for judicial review of the Assistance Decision, as to whether relief should be refused in the exercise of the Court's discretion because Ms Bonney had available to her another, more beneficial, entitlement to seek merits review.
7. For the reasons explained above, there is no utility in granting the relief sought by Ms Bonney in respect of the Assistance Decision in these proceedings. There is no reasonable prospect that the Court would grant such relief. It is therefore appropriate to grant summary judgment to NTSG in relation to Ms Bonney's application for an order setting aside the original decision.
8. Insofar as Ms Bonney seeks an order from the Court under s 203BB of the NT Act that she be provided $30,000 in funding for legal costs, this appears to be based on a misunderstanding of s 203BB. The Court has no power under the NT Act to make a decision that Ms Bonney be provided with financial assistance. The functions conferred by s 203BB are only conferred on, and can only be performed by, a representative body: see, in an analogous context relating to s 203FE of the NT Act, Burarrwanga at [39].
9. There is also no basis on which the additional orders which Ms Bonney seeks, for "compensation" and "exemplary damages", could be made. Even if the Court were to have determined that the Assistance Decision made by Mr Sherlock was affected by relevant error, and that there was utility in granting relief, the appropriate relief would be to set aside that decision and to direct that Ms Bonney's application for assistance be re-determined according to law.

1. For the reasons given above, the Bonney Application is dismissed. The Notice to Produce is set aside. Leave to issue the Subpoena is refused. The originating application should be summarily dismissed. Ms Bonney having been unsuccessful in relation to all of the interlocutory applications and in the proceedings overall, it is appropriate that an order be made requiring her to pay NTSG's costs of the proceedings.

I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McDonald.