Gomeroi People v Santos NSW Pty Ltd and Santos NSW

1. 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.
2. 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.
3. 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.
4. 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.
5. As the High Court explained in QYFM _v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affair_s [2023] HCA 15; (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.
6. Those facts arise from two discrete circumstances disclosed to the parties by me, or at my request.
7. 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:

1. 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] FCAFC 26; (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.
2. On 8 October 2025 a National Registrar sent a further email relating to that disclosure, as follows:

1. 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] HCA 30; (1994) 181 CLR 41 (Deane J, at 67); Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ (at [12]).
2. As Gleeson CJ, McHugh, Gummow and Hayne JJ explained in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, the practical application of the test involves a two-step process (at [8]):

1. See also CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76, Nettle and Gordon JJ (at [57]).
2. 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] HCA 44; (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.
3. 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.

(1989) 167 CLR 568

(2000) 205 CLR 337

(2000) 201 CLR 488

(2023) 279 CLR 148

(1994) 181 CLR 41

(2019) 268 CLR 76

(2024) 303 FCR 153

(2024) 303 FCR 255