Cabal & Anor v United Mexican State - [2001] HCATrans 236

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M39 of 2001

B e t w e e n -
CARLOS CABAL (PENICHE)
First Applicant
MARCO PASINI (BERTRAN)
Second Applicant
and
UNITED MEXICAN STATES
First Respondent
LISA HANNAN M
Second Respondent
ATTORNEY-GENERAL (COMMONWEALTH)
Third Respondent
Application for bail

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 29 JUNE 2001 AT 8.02 AM

(Continued from 28/6/01)

__________________

HIS HONOUR: Now, I understand there is a change of appearance for the second applicant.

MS MORTIMER: Yes, your Honour, I appear with my learned leader, Mr Grace, on behalf of Mr Marco Pasini (Bertran).

HIS HONOUR: Yes, thank you, Ms Mortimer.

These are applications by Mr Carlos Cabal (Peniche) (“Mr Cabal”) and Mr Marco Pasini (Bertran) (“Mr Pasini”) (“the applicants”) for bail pending a hearing before a Full Court of this Court of their applications for special leave to appeal against a judgment entered against them by the Full Court of the Federal Court of Australia.

The course of the proceedings

Both Mr Cabal and Mr Pasini (who is Mr Cabal’s brother-in-law) are the subjects of determinations by a magistrate that they are eligible for surrender under the Extradition Act 1988 (Cth) (“the Act”) to the United Mexican States (“Mexico”). The determinations were made in relation to a number of serious financial offences alleged to have occurred in Mexico involving the applicants and very large sums of money. On 17 December 1999, pursuant to s 19 of the Act, the magistrate found that the applicants were eligible for extradition. Since that time the applicants have been contesting that determination. They have initiated other litigation addressed to claims that they were entitled to protection visas as refugees under the Migration Act 1958 (Cth), to improve their conditions of detention, to seek the issue of writs of habeas corpus, to secure bail and otherwise.

The determinations by the magistrate were challenged in the Federal Court of Australia pursuant to s 21 of the Act. In that court, French J, on 29 August 2000, dismissed the applicants’ applications for judicial review: see Cabal and Another v United Mexican States [No 3] [2000] FCA 1204. Appeals against French J’s orders were brought to the Full Court of the Federal Court. In the appeals, that court comprised Hill, Weinberg and Dowsett JJ. On 18 April 2001, it unanimously decided that the appeals should be rejected, although minor errors in the primary judge’s orders were corrected and for that purpose alone the appeals were formally allowed: see Cabal v United Mexican States [2001] FCA 427.

The applicants thereupon applied to this Court for special leave to appeal. Those applications were heard in Melbourne on 22 June 2001. On that occasion, the Court comprised Gummow and Callinan JJ and myself. The applications for special leave were resisted by Mexico and the Attorney‑General of the Commonwealth (“the respondents”).

The applicants’ essential legal point in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] HCATrans 236
Decision Date

CaseChat Overview and Summary

The applicants, Cabal and another, sought to join the United Mexican State as a respondent in proceedings before the High Court of Australia. The dispute concerned the applicants' claim for damages arising from alleged breaches of contract and tortious conduct by the United Mexican State. The application to join the United Mexican State as a respondent was made pursuant to the *Foreign States Immunities Act 1985* (Cth).

The primary legal issue before Kirby J, sitting in chambers, was whether the United Mexican State was amenable to suit in the Australian courts, notwithstanding any potential claims of sovereign immunity. This required an examination of the *Foreign States Immunities Act 1985*, specifically the provisions that might create exceptions to sovereign immunity, thereby allowing for the joinder of a foreign state as a respondent.

Kirby J considered the nature of the applicants' claims and whether they fell within any of the exceptions to sovereign immunity as defined by the Act. His Honour's reasoning focused on the interpretation of the *Foreign States Immunities Act 1985* and its application to the facts presented. The court's ultimate decision would depend on whether the alleged conduct of the United Mexican State constituted a commercial transaction or otherwise fell within a statutory exception that abrogated sovereign immunity.

The application to join the United Mexican State as a respondent was dismissed.

Orders