Bonney v Watarra Aboriginal Corporation RNTBC [2025] FCA 1451

1. The applicant, Jennifer Bonney, commenced this proceeding seeking judicial review of certain decisions under the Administrative Decisions Judicial Review Act 1977 (Cth) (ADJR Act). The third respondent applies for summary dismissal of the claim against it.
2. The first respondent, Watarra Aboriginal Corporation RNTBC, holds native title on trust for common law holders as a result of the determination of this Court in Harrington-Smith on behalf of the Darlot Native Title Claim Group v State of Western Australia (No 2) [2022] FCA 764. The second respondent is the Office of the Registrar of Aboriginal Corporations (ORIC). The third respondent, Roe Legal Services is a law firm, which now trades under the name Biyara Legal. The fourth respondent, Grant Thornton Australia, is an accounting firm.

1. Ms Bonney does not have legal representation. The 'decisions' she seeks to challenge under the ADJR Act in this proceeding are:

(a) a decision of ORIC not to recognise Ms Bonney as a founding member of Watarra;

(b) Biyara Legal's lodgement of the application for registration of Watarra with ORIC; and

(c) acts by Grant Thornton to record minutes of meetings for Watarra, and before that for the Darlot native title claim group.

1. It will be immediately apparent why I put the word 'decisions' in inverted commas. Without expressing a view about the first item in the above list, the second and third items are not readily characterised as decisions, much less the kinds of decisions that are amenable to challenge under the ADJR Act.
2. An affidavit affirmed by Ms Bonney on 2 October 2025 in support of her originating application filed on 9 October 2025 confirms that the conduct of Biyara Legal of which she complains is the act of lodging a form with ORIC applying for the registration of Watarra.
3. The grounds on which Ms Bonney puts her application are as follows:
   1. Failure to observe procedures required by the rules.
   2. Error of law - the final decision accepted by ORIC to accept the application for registration of Watarra Aboriginal Corporation, is false and misleading in a material particular, in pursuance of s561 (1) of the Corporations Aboriginal and Torres Strait Islander Act 2006 (Cth) [CATSI Act].

These grounds shed no light on how the act of lodging an application could be characterised as a decision.

1. As to relief, Ms Bonney seeks orders for Grant Thornton to produce certain documents, as well as an order requiring ORIC to recognise Ms Bonney and unspecified other persons as founding members of Watarra. She also seeks damages. It appears that damages (and costs) are the only relief she seeks against Biyara Legal.
2. In oral submissions today, Ms Bonney made it clear that the scope of her claim against Biyara Legal goes beyond the act of lodging the form applying for incorporation, and extends to the decision that was made to lodge it. Ms Bonney submits on the basis of an affidavit of Kelsi Forrest sworn 6 November 2025 in support of Biyara Legal's application, that this was a decision made by Ms Forrest, who is a principal of Biyara Legal. The particular aspect of this alleged decision of which Ms Bonney complains is that the form lodged did not include her name and the names of other unspecified people as members of Watarra at the time that the application for registration was filed.

1. Biyara Legal seeks summary judgment under s 31A(2) of the Federal Court of Australia Act 1976 (Cth). That provision empowers the Court to give judgment for a party that is defending a proceeding in relation to the whole or any part of the proceeding if the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
2. It is unlikely to be helpful to try to paraphrase this criterion of no reasonable prospect of success: see Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [22], [58]. Certainly, there is no need to do so in this case, because it is clear that Ms Bonney has no reasonable prospect of successfully prosecuting the part of the proceeding that concerns Biyara Legal. That is because neither the lodgement with ORIC of a form applying for the registration of Watarra nor the decision to take that act is capable of being a decision that can be challenged under the ADJR Act.
3. Ms Bonney's application invokes 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 the Federal Court ... for an order of review in respect of the decision' on certain specified grounds. A 'decision to which [the] Act applies' is defined in s 3(1) to be a 'decision of an administrative character made, proposed to be made, or required to be made', relevantly, 'under' certain legislative instruments, including Acts of the Commonwealth Parliament.
4. It may be accepted that the form was lodged in order to apply for the registration of Watarra pursuant to Commonwealth legislation, presumably the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth). But lodging a form is not a decision. It involves no deliberation or the reaching of any determination, conclusion or view. It is a clerical act.
5. If Ms Bonney's application is nevertheless construed, as she submits, to encompass the decision taken by Biyara Legal to perform that clerical act, it is plainly not a decision of an administrative character made under any enactment. Without exhaustively explaining why that is so, the idea that it is founders, at least, on the requirement that the decision be made 'under' an enactment. In Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 at [89], Gummow, Callinan and Heydon JJ held that, in order for a decision to have been made under an enactment for the purposes of the ADJR Act, it 'must be expressly or impliedly required or authorised by the enactment', and 'the decision must, itself, confer, alter or otherwise affect legal rights or obligations, and in that sense, the decision must arrive from the enactment'.
6. The decision made by Biyara Legal to lodge the form did not affect legal rights or obligations. It was (at most), a decision to apply for the registration of Watarra, which once acted on by the lodgement of the form would, if the application were granted by ORIC, lead to some alteration of legal relations inherent in the existence of the corporation. This is too indirect for Biyara Legal's decision to be one to which the ADJR Act applies.
7. That is so even if the decision is characterised more narrowly, as Ms Bonney's submissions sought to do, as a decision not to include Ms Bonney in the list of members in the form. To the extent that Biyara Legal did, in any sense, decide who should be included in that list of members (rather than act on instructions), that was a preliminary or preparatory decision which proceeded the compilation and lodgement of the form, which in turn, preceded the act of ORIC to recognise Watarra as an incorporated body. Biyara Legal's role is too remote to qualify as a decision under an enactment for the purposes of the ADJR Act.
8. A further difficulty in Ms Bonney's application against Biyara Legal is that the only relief she seeks against the firm is damages. That is not a remedy available under the ADJR Act. The orders the Court may make on an application under that Act are found in s 16. Damages or compensation are not among them. And it is plain beyond any doubt that in performing the function of lodging an application for incorporation on behalf of those who are seeking that incorporation, the law firm could have breached no duty to Ms Bonney that gives rise to any cause of action for compensation.

1. The claim against Biyara Legal has no prospect of success. Ms Bonney indicated that she was willing to amend the claim, but she confirmed that any amendment would still be made on the basis that Biyara Legal had made a decision in lodging the form for incorporation, and that this would be the decision she would seek to challenge under the ADJR Act.
2. The claim will be struck out of the originating application and there will be an order removing Biyara Legal as the third respondent. Costs should follow the event, however Biyara Legal only sought the filing fee for its application so the costs will be limited to that fee.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson.