Federal Court of Australia

Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2025] FCAFC 163

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be heard and determined by a Full Bench differently constituted, not including Justice Charlesworth as a member.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    Today the Full Court as presently constituted made an order in the following terms:

The appeal be heard and determined by a Full Bench differently constituted, not including Justice Charlesworth as a member.

2    Oral reasons for the order were delivered by me, with which the other members of the Full Court concurred. This is a written record of those reasons.

3    This is an appeal by the Gomeroi People from a decision of the National Native Title Tribunal in relation to future acts affecting their native title. The Tribunal determined that four petroleum production licences should be granted to the first respondent, Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd:   Santos NSW Pty Ltd and Another v Gomeroi People and Another [2025] NNTTA 12. The State of New South Wales is joined as the second respondent. It appears to be common ground that the entities named as the first respondent are related to Santos Limited, an Australian oil and gas company. They may together be referred to as Santos. The project to which the petroleum production licences relate is known as the Narrabri Gas Project.

4    The appeal was referred to a Full Bench on 1 September 2025. Since at least that day, it has been set down for hearing commencing at 10.15 am on 25 November 2025 with two days set aside.

5    Before the Full Court is the appellant’s application for an order that I be disqualified from presiding on the appeal on the basis that my membership of the Full Bench would give rise to an apprehension of bias.

6    As the High Court explained in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148, the absence of an apprehension of bias is a precondition to the jurisdiction of the Full Court to hear an appeal. Accordingly, the application is for the Full Court to determine. In these reasons, I will speak in the first person as the judicial officer to whom the foundational facts relate.

7    Those facts arise from two discrete circumstances disclosed to the parties by me, or at my request.

8    The first disclosure was made by email to the parties via my Executive Assistant on 25 September 2025. It was transmitted to the email address for service for the appellant as it appears on the Notice of Appeal. The email stated:

Dear Parties

Justice Charlesworth has requested that I draw the following to your attention:

•    Mr Daniel Calderisi is employed as her Honour’s Associate. His employment commenced in May 2025 and is expected to continue until May 2026.

•    Prior to his employment with the Court, Mr Calderisi completed two secondments with Santos. His roles involved:

•    assisting the Principal Litigator of Santos in relodging the Environmental Application after the Tipakalippa decisions;

•    assisting the Principal Litigator of Santos in general case summaries and file progressions, including a case status summary for QUD376/2025; and

•    assisting the Company Secretary of Santos in the running of the 2025 AGM, Board updates and general company administration, including a litigation update to the Board on the status of QUD376/2025.

The parties have liberty to apply in connection with the matters raised. That liberty may be exercised initially by way of email to this address. Pending your responses, correspondence relating to the case management of this appeal should also be copied to this address and not to the address of the Associate.

Yours sincerely

9    The proceeding referred to in that email (QUD 376/2025) is this very appeal. The appeal is related to earlier proceedings in which a Full Court upheld an appeal of the Gomeroi people from the Tribunal, and remitted the matter to the Tribunal for determination according to law:  Gomeroi People v Santos NSW Pty Ltd (2024) 303 FCR 153; Gomeroi People v Santos NSW Pty Ltd (No 2) (2024) 303 FCR 255. This appeal is from the Tribunal’s decision made on that remittal and concerns the same subject matter. The outcome of the present application would not differ according to whether my Associate had involvement in this proceeding or the earlier related proceeding.

10    On 8 October 2025 a National Registrar sent a further email relating to that disclosure, as follows:

Dear parties,

Further to the email below, the Court has received no application or queries relating to the matters disclosed.

I would be grateful for your confirmation as to whether there is any objection to Justice Charlesworth’s Associate undertaking ordinary duties in connection with the matter.

Justice Charlesworth has asked that I invite your responses by 5.00pm this Friday.

Kind regards

11    On 13 October 2025 the Registrar received email correspondence from Mr William Scott on behalf of the appellant in the following terms:

Dear Registrar

Gomeroi People v Santos NSW Pty Ltd And Santos NSW (Narrabri Gas) Pty Ltd And Anor (QUD376/2025)

I note that I did not receive the original email seeking confirmation. The email has been forwarded to me by Mishka Holt of our office.

Whilst the Appellant is not seeking to make a formal application at this time, the Appellant does hold concerns regarding the involvement of Justice Charlesworth’s Associate given their prior secondments with Santos, including their work undertaking a Case Study for the original Full Court appeal and assisting the Company Secretary in a litigation update to the Santos Board in that regard.

On that basis, the Appellant considers that the Associate in question should not be engaged in any capacity in the present proceedings.

Kind regards,

12    Ms Mishka Holt is the solicitor on the record for the appellant.

13    Later on 12 November 2025, at my request, the Registrar sent a further email to the parties, as follows:

Dear practitioners

The below email has been brought to Justice Charlesworth’s attention. The Court will continue to send correspondence in this matter to the addresses the service on the Court record notified by each party. It is for each party to ensure that relevant personnel are provided with the correspondence in a timely way.

Justice Charlesworth has asked me to confirm that her Honour’s Associate will not undertake any work or engage in any correspondence relating to the present proceeding. Her Honour’s Associate has been directed to delete any communications that may be sent to him.

That state of affairs will continue until the delivery of judgment.

To avoid disruption to the hearing, any contention that there exists an apprehension of bias by reference to those arrangements should be made by way of a prompt and formal application for recusal.

Kind regards

14    Prior to the making of the present application, no further correspondence was received by the Court relating to the circumstances concerning my Associate and the administrative arrangements referred to in the Court’s correspondence have remained in place at all times.

15    The second circumstance was first disclosed to the parties by email on 28 October 2025. It was as follows:

Dear parties

As a matter of prudence, Justice Charlesworth has asked that I bring the following matter to your attention.

Her Honour has a friendship with an employee of Santos, Mr Nick Malbon.

Justice Charlesworth has been informed that Mr Malbon has participated in a commercial review of the Narrabri Gas Project in which the existence of native title rights and interests and related legal proceedings was noted.

Mr Malbon’s review task did not include the provision of any advice concerning the exercise of native title rights by the Gomeroi people, or the merits or outcome of any application or proceeding related to this matter.

Yours sincerely

16    There followed two further exchanges in which the appellant’s lawyer requested further information. The lawyer initially sought “further information regarding Mr Malbon’s role at Santos (including his job title), and the timing and manner in which this matter came to her Honour’s attention”. At my request, the following response was provided by the Registrar on the following day:

Dear practitioners

Justice Charlesworth has requested that I provide the following response:

•    In an unrelated matter involving Santos as a party, Justice Charlesworth disclosed the existence of the friendship with Mr Malbon in open court.

•    For consistency, Justice Charlesworth considered it appropriate to declare the existence of the friendship to the parties in this matter so that no person was left to speculate as to why that was not done.

•    Justice Charlesworth understands Mr Malbon to have accountancy qualifications.

•    On 28 October 2025, Justice Charlesworth contacted Mr Malbon by telephone to advise that her Honour was a member of a Full Bench in a matter relating to the Narrabri Gas Project and to inform him that she would disclose the friendship in this proceeding.

•    On that call, Mr Malbon disclosed to her Honour that he had participated in a review relating to the Narrabri Gas Project, as then disclosed to the parties.

•    On the basis of the information disclosed, on 28 October 2025 Justice Charlesworth understands Mr Malbon’s role to involve the commercial review of Santos projects from an accounting perspective.

•    On the information provided to Justice Charlesworth, Mr Malbon has not been involved in any activity within Santos relating to the processes forming the subject matter of this appeal.

•    Justice Charlesworth understands Mr Malbon’s role to be that of a commercial reviewer, but she has not ascertained his exact formal title or job description within Santos.

Kind regards

17    On 12 November 2025, Ms Holt sent an email to the Registrar requesting additional information, relevantly as follows:

Dear Registrar,

The Appellant is grateful to her Honour for providing a response in respect of the Appellant’s questions regarding her Honour’s disclosure of her relationship with Mr Malbon.

In the Appellant’s view, there are a number of further matters arising from her Honour’s response. We respectfully request that her Honour please consider:

•    providing the parties with a copy of the transcript extract of the disclosure made in open court referred to in point 1 of her Honour’s response, and any other transcripts in which this disclosure was made. In this respect, the Appellant understands that the relevant matter may be proceedings no. VID 097 of 2023, and requests her Honour’s confirmation that this is the matter referred to. The Appellant notes it has taken steps to request a copy of the transcript of these proceedings from the Court’s authorised transcript provider, and was provided with a part copy of the transcript by the transcript provider on 3 November 2025;

•    providing complete details of the contents of her Honour’s telephone conversation with Mr Malbon on 28 October 2025; and

•    disclosing whether her Honour has had any other conversations with Mr Malbon in which the subject matter of Mr Malbon’s work on the Narrabri Gas Project has been discussed.

We are seeking instructions from the Appellant regarding making a formal application for her Honour to recuse herself.

The reason for the Appellant’s above request is that, if such an application were to be made, in the Appellant’s view it would be desirable to avoid the making of such enquiries in open court.

…

18    In the remainder of the email, Ms Holt stated that instructions were being sought from the appellant concerning a recusal application. Ms Holt sought guidance as to the appropriate procedure, having regard to the High Court’s decision in QYFM.

19    On the same day, and again at my request, the Registrar provided the following information:

Dear parties

The appellant’s email of 12 November 2025 has been brought to Justice Charlesworth’s attention.

Her Honour acknowledges the request for additional disclosure. The questions are addressed in order below.

Previous disclosure

The previous disclosure was made on 31 October 2023 in proceedings VID 907 of 2023. The transcript mis-records Mr Malbon’s name. As appears on the transcript, the disclosure was as follows:

HER HONOUR:    Thank you, Mr Waters. Before you begin, the three things I will mention – I do wish to make a disclosure out of a matter of caution. I do not consider that what I’m about to disclose is a ground to recuse myself but felt that I should make that disclosure as the first thing that is to occur. Subject then to any submissions the parties wish to say about that, I will just outline then some issues that, in my mind, I consider need to be determined so that we can fix something of an orderly agenda for those things, and then I will give you some information about what my calendar looks like so that if there’s to be any future hearing dates before me, you can make submissions to me with that information – with the benefit of that information. I should inform you that the matter is presently before me in my capacity as duty judge in the State of South Australia given Horan J was not able to accommodate you, and whether or not you continue before me will depend on a number of matters

With respect to the disclosure, I should mention that I have a very close friend who is an employee in the Adelaide office of Santos. His name is Nicholas Melbourne . He is not involved in the project with which this project – this proceeding is concerned other than in 2016 he participated in some economic work in 2016 but has not since had any direct involvement and is not in contact with those personnel within Santos who are responsible for the Barossa Pipeline Project. So I make that disclosure to you. Given the nature of my relationship with him, I thought it was appropriate that I do that. I have not previously discussed his work at Santos not and certainly not with respect to this project. Probably more a matter for you, Ms Batten. Is there anything you would like to say about that which might – that would prevent you from proceeding at least today?

MS BATTEN:    I don’t think so, your Honour. I am seeking instructions just from my instructors. My client is in the Tiwi Islands with limited communication capacity, so we may have to – yes, no, we don’t oppose your Honour hearing it. Thank you, your Honour.

HER HONOUR:    Very well. Thank you. If you need any more information about that, I’m happy to gather it for you, but that’s the extent of my own knowledge.

MS BATTEN:    Thank you very much, your Honour.

Discussion with Mr Malbon

The only conversation between Justice Charlesworth and Mr Malbon in relation to this matter occurred on 27 October 2025 in two telephone calls made at 1.02 pm (5 minutes) and 1.16 pm (3 minutes).

The conversation was initiated by Justice Charlesworth for the sole purpose of informing Mr Malbon of her membership of the Full Bench in which Santos was a party and which concerned the Narrabri Gas Project. The following is her Honour’s best recollection of the conversation. The exact words used and the order in which things were said are not recalled.

•    Justice Charlesworth informed Mr Malbon that she was a member of a Full Bench on an appeal to which Santos was a party. She said that the appeal related to the Narrabri Gas Project.

•    Justice Charlesworth said that it was her intention to disclose their friendship to the parties, as she had done in an earlier proceeding. She asked whether Mr Malbon had undertaken any work relating to the Narrabri Project.

•    Mr Malbon said yes. He said that he had participated in a commercial review relating to the project.

•    Justice Charlesworth asked whether Mr Malbon’s role involved any deliberation or other work concerning proceedings relating to native title rights.

•    Mr Malbon said that it did not.

•    Justice Charlesworth asked Mr Malbon to confirm his role within Santos. Mr Malbon said that he is a ‘commercial reviewer’.

•    Justice Charlesworth asked what the commercial reviewer role entailed.

•    Mr Malbon said that it involved a review of the Project from a commercial perspective.

•    Justice Charlesworth confirmed that she would convey the effect of the information he had provided to the parties in this matter.

•    In the second telephone call, Mr Malbon said words to the effect that documents considered in the review referred to the existence of native title rights held by the Gomeroi people. He said he had no involvement in those proceedings, however he confirmed that the existence of proceedings was referred to in materials considered in the course of the commercial review. He said words to the effect that the documents referred to the progress of the project being affected by proceedings relating to the native title.

•    Justice Charlesworth asked Mr Malbon not to disclose any further information to her relating to the Narrabri Project or the commercial view.

No prior or later discussion

Justice Charlesworth has had no other conversations with Mr Malbon in which the subject matter of his work on the Narrabri project (or this proceeding more generally) has been discussed.

Procedure

Her Honour’s view is that any application arising from the disclosure should initially be made by transmission of materials to the Registrar. The Full Bench will then determine any further procedural steps.

For the avoidance of disruption, the appellant’s advisors are requested to notify the Court (by email to the case-managing Registrar) of their instructions as to whether any application will be made at the earliest practicable time. It is Justice Charlesworth’s present view that any such application should be heard and determined in open Court.

Kind regards

20    The present application was made a week later by the transmission of papers to the Registrar in accordance with the guidance provided.

The test for apprehended bias

21    The test for apprehended bias is well-established. Sometimes referred to as the “double might test”, it is whether, in all the circumstances, a fair-minded lay observer with knowledge of the material objective facts might entertain a reasonable apprehension that the judge might not bring an impartial mind to the resolution of questions arising in a proceeding:  Webb v The Queen (1994) 181 CLR 41 (Deane J, at 67); Johnson v Johnson (2000) 201 CLR 488, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ (at [12]).

22    As Gleeson CJ, McHugh, Gummow and Hayne JJ explained in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, the practical application of the test involves a two-step process (at [8]):

…  First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an ‘interest’ in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

23    See also CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76, Nettle and Gordon JJ (at [57]).

24    In the present case, it has been left to legally represented parties to determine whether or not to make an application for recusal on the basis of the disclosed facts. A represented party who proceeds to judgment without making an application founded on known facts may be precluded from raising the matter upon any appeal on the basis that a right to raise an objection has been waived:  Vakauta v Kelly (1989) 167 CLR 568, Brennan, Deane and Gaudron JJ (at 572). Waiver of the kind described is a well-established exception to the natural justice hearing rule as it relates to apprehended bias.

25    A conclusion that a judge should be recused on grounds of apprehended bias does not carry with it any finding of actual bias or wrongdoing on the part of the judge, or any other person. Rather, the apprehended bias test is concerned with the appearance that justice be done. It is a legal test founded in principles directed to the protection of the public’s confidence in the judiciary as an institution. Also underpinning the test is a concern to ensure that a judge fulfils the duty to decide, and that the duty not be avoided for reasons unsupported by legal principle.

Open court

26    The Full Bench directed that the interlocutory application and supporting affidavit be accepted for filing. The application has been set down for hearing on an expedited basis given the proximity of the appeal hearing dates. As indicated in the last of the Registrar’s emails, it is desirable that the application be formally filed and that it be considered and determined in open court. Generally speaking, an order resulting in the reconstitution of a Full Bench should be based on published facts so as to assure members of the public that the duty of a judge to sit has not been arbitrarily avoided.

Consideration

27    In the present case, I remain of the view that it was desirable that the parties determine for themselves whether to seek an order for recusal based on the circumstances relating to my Associate’s past employment. Administrative arrangements of the kind put in place within my Chambers are not unheard of. They may be suggested as a matter of pragmatism and may in many instances be acceptable to the parties who may then refrain from making an application that might otherwise be made. In such cases, principles relating to waiver may preclude that party from raising an objection on an appeal, founded on facts previously known to them. However, that does not mean that the establishment of the administrative arrangements within my Chambers necessarily preluded the appellant from making a recusal application.

28    The closing words of the Registrar’s email of 13 October 2025 emphasised that any recusal application should be made promptly to avoid disruption to the orderly progression of this appeal to a hearing.

29    From a case management perspective, it is unfortunate that the circumstances relating to my Associate are now relied upon to support a recusal application in such close proximity to the hearing dates, given the closing words of the Registrar’s email. However, in and of itself, the failure to make a prompt application does not affect the proper application of the principles to the facts disclosed on 25 September 2025. It is open to the appellant to make the application founded on those facts and I proceed to consider the application by reference to them. I accept that the timing of the decision to bring the application relating to my Associate may have been informed by my additional disclosure about an association with an employee of Santos.

30    I am satisfied that the circumstances relating to the prior secondment of my Associate provide a proper basis for my recusal in accordance with the principles in Ebner. That is because my Associate participated in work directed to the advancement of Santos’s interests in this proceeding. That circumstance must be considered together with the nature of the role of an Associate to a judge of the Court, involving a close degree of involvement in the judicial and administrative work of the Court and a very proximate professional relationship with the judge more generally.

31    For the purposes of the first step in the test for apprehended bias, there exists a connection between a judge and Associate in this case, as in all cases when an Associate is employed. In the present case, there is a further connection between the Associate and a party to the proceeding.

32    For the purposes of the second step, I am satisfied that the facts are such that a lay person with knowledge of the nature of the role of an Associate in the Chambers of the presiding judge, and with knowledge of the Associate’s prior work for Santos, might reasonably apprehend that I might not bring an impartial mind to the issues to be determined on the appeal. It would not be unreasonable for the lay observer to entertain a real concern that a lawyer engaged in adversarial litigation for a party could then work in close proximity to a judicial officer charged with the responsibility to adjudicate in the same or related litigation. The circumstances are such that the judge has within her Chambers a lawyer who has recently undertaken duties in a partisan role in relation to matters arising for adjudication by the judge as a member of the Full Bench. The lay observer might reasonably apprehend that the partisan role applies in some way to the judge, given the nature of the working relationship between them. Whether that apprehension arises from a correct understanding of the law or a proper appreciation of the oath of the judge is not to the point. The question is whether the apprehension of the lay observer is reasonable, having regard to all of the facts and circumstances. I am satisfied that the second step in the test in Ebner results in a conclusion that I should recuse myself on the basis of the facts disclosed by me on 25 September 2025, given the appellant’s reliance on those facts.

33    I am satisfied that the administrative arrangements that may from time to time be considered acceptable to other parties would not in all cases eliminate the reasonable apprehension of the hypothetical lay observer of a kind I have just identified. My conclusion does not involve any criticism of any person. Rather, it is the outcome of the application of legal principle to the known facts. As I have mentioned, the principles are concerned with the protection of the integrity of the Court as an institution and I am satisfied that they operate in the present case to support the order sought by the appellant.

34    I have concluded that the circumstances relating to my Associate provide a sufficient factual foundation for my disqualification in and of themselves. The additional declared facts relating to a friendship with a Santos employee give rise to different questions bearing on the second step in the test in Ebner. Without being exhaustive, they include questions relating to the lack of any involvement of that person in the proceedings themselves, the nature of the friend’s role and responsibilities within Santos, the connection between that role and the performance of judicial functions of the Full Bench as presently constituted, and the circumstances in which the role came my attention. Issues may also arise as to the knowledge to be imputed to the reasonable lay observer, the extent to which that person may be assumed to engage in some degree of conjecture and, if so, what that conjecture might be.

35    In the circumstances, I do not consider it necessary to express any view as to whether those declared facts would give rise to a separate and discrete basis for a recusal order. Whether facts of the kind declared give rise to an apprehension of bias should be deferred to an occasion when the outcome of an apprehended bias application necessarily turns upon it.

36    I add that the circumstance that a judge declares associations of the kind referred to in these reasons does not of itself mean that the judge has (or has not) formed a concluded view that the declared facts provide a proper basis for recusal, particularly in respect of the second step of the test referred to in Ebner. As explained in the email to the parties on 28 October 2025, the decision to make contact with Mr Malbon and to positively enquire about any involvement he had with the Narrabri Gas Project was informed by general considerations of transparency and consistency, given that an association with him had been disclosed in open court in another matter.

37    I should not be understood as suggesting or recognising a fixed rule as to whether it is appropriate for a judge to proactively make enquiries and disclosures of the kind made in this case relating to either association. There are no fixed rules governing such matters, and nor should there be.

Outcome

38    For the reasons given, it is my view that I should be disqualified. The parties should be heard on the appropriate form of the Court’s order.

Associate:

Dated:    20 November 2025

REASONS FOR JUDGMENT

SARAH C DERRINGTON J:

39    I agree that it is appropriate for Justice Charlesworth to disqualify herself from the hearing of this appeal, and I agree with her Honour’s reasons for so doing.

40    I also concur in the order proposed.

Associate:

Dated:    20 November 2025

REASONS FOR JUDGMENT

LONGBOTTOM J:

41    I agree that it is appropriate in the circumstances of this case for Justice Charlesworth to recuse herself. I agree with the reasons given by Justice Charlesworth and the orders proposed.

Associate:

Dated:    20 November 2025