The Republic of Nauru v WET040

The Republic of Nauru (appellant) appealed to the High Court of Australia from a decision of the Supreme Court of Nauru. The appeal concerned the High Court's original jurisdiction to hear and determine appeals from the Supreme Court of Nauru, as provided for in an agreement between the Australian and Nauruan governments. This agreement had terminated on 13 March 2018, but the termination did not affect appeals "instituted" in the High Court before that date. The appellant filed its notice of appeal one day after the time fixed by High Court Rule 42.03, and subsequently sought an order under Rule 4.02 to enlarge that time.

The central legal issues before the High Court were whether the appeal had been "instituted" before the termination of the agreement, and if so, whether the Court should exercise its jurisdiction to hear and determine the appeal. The appellant had served the notice of appeal, summons, and affidavit on the respondent's solicitors and later personally on the respondent. Crucially, an order enlarging the time for filing the notice of appeal had not been made before the agreement's termination.

The Court reasoned that an appeal is instituted when the notice of appeal is filed. Although the notice of appeal was filed outside the prescribed time, the appellant had taken steps to rectify this by seeking an enlargement of time. The Court considered that the filing of the summons seeking an enlargement of time, along with the accompanying affidavit and service on the respondent, constituted sufficient steps to demonstrate an intention to pursue the appeal. Given that the notice of appeal was filed before the termination of the agreement, and the summons for enlargement of time was also filed before termination, the Court found that the appeal had been "instituted" within the relevant timeframe. The Court then exercised its jurisdiction to hear and determine the appeal.

The Court ordered that the time fixed for the filing of the notice of appeal be enlarged to 13 October 2017.