Zentai v Republic of Hungary & Ors; O'Donoghue v Ireland & Anor

The applicants, Zentai and O'Donoghue, sought to bring proceedings in Australia against the Republic of Hungary and Ireland respectively, alleging breaches of international human rights law. The proceedings were initiated by way of originating applications filed in the High Court of Australia. The core of the dispute concerned the alleged actions of agents of the respondent states occurring outside of Australia, and whether Australian courts possessed jurisdiction to entertain such claims, particularly in light of the principle of sovereign immunity.

The High Court was required to determine whether the applicants could establish a basis for the exercise of jurisdiction by Australian courts over foreign states in circumstances where the alleged conduct occurred extraterritorially and did not involve any direct connection to Australia. Central to this was the question of whether the applicants' claims fell within any exceptions to the doctrine of sovereign immunity, and if so, whether those exceptions were recognised and applicable under Australian law, including the extent to which international law, as reflected in domestic legislation or common law, could found such jurisdiction.

The Court ultimately held that the applicants had failed to establish a sufficient jurisdictional basis for their claims. Applying established principles of private international law and the doctrine of sovereign immunity, the Court found that the extraterritorial acts of foreign states, even if they engaged international human rights norms, did not, without more, confer jurisdiction on Australian courts. The Court emphasised that the mere assertion of a breach of international law by a foreign state in respect of conduct occurring outside Australia was insufficient to overcome the presumption against the exercise of jurisdiction over foreign sovereigns, absent a clear statutory basis or a recognised common law exception that was demonstrably engaged by the facts.

The applications were dismissed.