Cabal & Anor v United Mexican States & Ors

In *Cabal & Anor v United Mexican States & Ors*, the High Court of Australia considered a dispute concerning the alleged wrongful detention of the applicants, Mr Cabal and Mr Scharfenberger, by agents of the United Mexican States. The applicants sought damages for false imprisonment and assault, alleging that their detention occurred in circumstances that engaged the sovereign immunity of the United Mexican States.

The central legal issue before the High Court was whether the actions of the Mexican agents fell within the scope of the restrictive theory of sovereign immunity, specifically whether the detention constituted an "act jure imperii" (an act of sovereign power) or an "act jure gestionis" (a commercial or private act). The applicants contended that the detention was an unlawful act outside the scope of sovereign immunity, while the United Mexican States argued that the detention was an exercise of sovereign authority and thus immune from Australian jurisdiction.

The High Court, comprising Gleeson CJ and Callinan J, examined the nature of the detention and the purpose for which it was carried out. Their Honours considered the distinction between acts that are inherently governmental and those that are commercial in nature. The Court ultimately found that the detention, as described, was not an act undertaken in the exercise of sovereign authority but rather an act that, if proven, would constitute a tortious act for which the United Mexican States could not claim immunity. The reasoning focused on the characterisation of the conduct itself, rather than the status of the actors.

The High Court held that the claim was not barred by sovereign immunity and remitted the matter to the Federal Court of Australia for further proceedings.