The Republic of Nauru v WET040 [2018] HCA 56

HIGH COURT OF AUSTRALIA

GAGELER, NETTLE AND EDELMAN JJ

THE REPUBLIC OF NAURU APPELLANT

AND

WET040 RESPONDENT

The Republic of Nauru v WET040 [2018] HCA 56 7 November 2018 M154/2017

ORDER

The time fixed for the filing of the notice of appeal is enlarged to 13 October 2017.

On appeal from the Supreme Court of Nauru

Representation

G R Kennett SC with N M Wood for the appellant (instructed by Republic of Nauru)

No appearance for the respondent

R Merkel QC with S A Beckett and M L L Albert for the Refugee and Immigration Legal Centre, as amicus curiae (instructed by Allens)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

The Republic of Nauru v WET040

High Court – Practice and procedure – Original jurisdiction – Appeal from Supreme Court of Nauru – Where High Court had original jurisdiction under s 5 of Nauru (High Court Appeals) Act 1976 (Cth) to hear and determine appeals from Supreme Court of Nauru provided for in Agreement between Government of Australia and Government of Republic of Nauru – Where Agreement terminated on 13 March 2018 – Where termination of Agreement did not affect hearing and determination of appeals "instituted" in High Court before date of termination – Where appellant filed notice of appeal before date of termination but one day outside period fixed by r 42.03 of High Court Rules 2004 (Cth) – Where appellant filed summons seeking order under r 4.02 of High Court Rules enlarging time for filing of notice of appeal – Where affidavit accompanying summons explained delay in filing notice of appeal – Where notice of appeal, summons and affidavit served on solicitors who acted for respondent in Supreme Court of Nauru – Where notice of appeal, summons and affidavit later served personally on respondent – Where order enlarging time for filing of notice of appeal not made before date of termination of Agreement – Where respondent did not enter appearance and did not appear at hearing of High Court appeal – Whether appeal "instituted" before date of termination of Agreement – Whether, if appeal instituted, High Court should exercise jurisdiction to hear and determine appeal.