Federal Court of Australia

X Corp v eSafety Commissioner [2025] FCAFC 99

ORDERS

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant is to pay the respondent’s costs of and incidental to the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT

1 On 22 February 2023, the eSafety Commissioner issued a Reporting Notice to Twitter Inc., pursuant to s 56(2) of the Online Safety Act 2021 (Cth).  At that time, Twitter was a publicly traded company incorporated under the laws of Delaware in the United States of America (USA) and was the provider of a social media service of the same name.

2 The Reporting Notice required Twitter to produce a report about its compliance with defined “basic online safety expectations” for the period 24 January 2022 to 31 January 2023.

3 In accordance with s 56(2)(c), Twitter was required to provide a report to the Commissioner within the period specified in the Reporting Notice or within a longer period allowed by the Commissioner.  The last date for compliance specified in the Reporting Notice was 29 March 2023.

4 Section 57 of the Online Safety Act is a civil penalty provision.  It provides that a person must comply with a notice given under s 56(2) to “the extent that the person is capable of doing so”.  Section 103(1) of the Regulatory Powers (Standard Provisions) Act 2014 (Cth) (Regulatory Powers Act) is to the effect that an infringement officer may give a person an infringement notice for an alleged contravention if the infringement officer believes on reasonable grounds that the person has contravened (relevantly) s 57 of the Online Safety Act.

5 On 15 March 2023, Twitter merged with X Corp (a private company incorporated in the State of Nevada in the USA).  As the surviving entity of the merger, X Corp from that date became the provider of the social media service (renamed “X”).

6 On 29 March 2023, X Corp provided a Report to the Commissioner in compliance or purported compliance with the Reporting Notice given to Twitter.

7 On 3 October 2023, an infringement officer issued an Infringement Notice to X Corp, pursuant to s 103 of the Regulatory Powers Act (applicable by virtue of s 163 of the Online Safety Act) on the basis that the information contained in the Report was incomplete or misleading.  The Infringement Notice claimed contraventions of s 57 of the Online Safety Act for each day between 29 March 2023 and 5 May 2023, with cumulative daily penalties totalling $610,500.00.

8 X Corp commenced an application for judicial review of the decision to issue the Infringement Notice.  Among other things, it sought declarations under s 39B of the Judiciary Act 1903 (Cth) to the effect that it was not obliged to comply with the Reporting Notice, and that the Infringement Notice was void, inoperative or invalid.  The grounds for review broadly raised three arguments.

9 X Corp contended that the Reporting Notice had been issued to Twitter (an entity that no longer existed) and that, for the purposes of s 57 of the Online Safety Act, X Corp was not the “person” required to comply with it.

10 Alternatively, X Corp alleged that for the purposes of s 56(2) of the Online Safety Act, the Commissioner had allowed it until 5 May 2023 to comply with the Reporting Notice, such that there had been no breach in the period between 29 March 2023 and that date.

11 It further argued that the Infringement Notice was invalid because it did not specify the place of the contravention as required by s 104 of the Regulatory Powers Act.

12 The primary judge rejected each of those arguments and so dismissed the application for judicial review: X Corp v eSafety Commissioner [2024] FCA 1159 (J).  This is an appeal from that judgment.

13 The five grounds of review are collectively to the effect that the primary judge erred in rejecting the arguments summarised above.

14 For the reasons that follow, the primary judge did not err in the manner alleged.

15 It follows that the appeal must be dismissed.

Grounds 1 to 3

16 The first three grounds of appeal are:

1.    The primary judge erred in concluding that the Appellant was required by s 57 of the Online Safety Act 2021 (Cth) (the Act) to comply with the non-periodic reporting notice given to Twitter, Inc. under s 56(2) of the Act on 22 February 2023 (the Notice).

2.    The primary judge erred in holding that, on the proper construction of the Act, s 57 requires any ‘person’ other than the recipient of a non-periodic reporting notice issued under s 56(2) to comply with such a notice.

3.    The primary judge erred in finding that, under the law of Nevada, the requirement for Twitter, Inc. to respond to the Notice was a ‘liability’ within the meaning of § 250(1)(d) of Chapter 92A of the Nevada Revised Statutes.

17 X Corp contends that the primary judge erred in two respects in concluding that it was the “person” required to comply with the Reporting Notice.  The first error is said to involve a misconstruction of s 57 of the Online Safety Act (Ground 2). The second is said to involve an erroneous conclusion as to the interpretation and operation of the corporate merger law of Nevada (Ground 3).  Ground 1 is conclusionary and need not be considered separately.

18 Given the nature of these grounds, it is necessary to explain in some detail how X Corp’s arguments were advanced at first instance, the evidence adduced in support of them and the reasoning of the primary judge for rejecting them.

Reasons of the primary judge

19 The primary judge surveyed the applicable legislation in terms that are not subject to challenge.  Broadly summarised, they are as follows:

(1) the Minister for Communication was authorised under s 45 of the Online Safety Act to specify basic online safety expectations for a social media service and had done so by a determination made on 20 January 2022;

(2) section 56 provided that the Commissioner may give a written notice to the provider of a social media service if there are basic online expectations for the service;

(3) Twitter was a “provider” of a social media service as defined in s 5 and s 238 of the Online Safety Act until the date of the merger;

(4) thereafter, X Corp was the provider of that social media service;

(5) section 56(2)(c)(ii) of the Online Safety Act provided for the Commissioner to allow a longer period within which a social media provider may give a report in response to a notice;

(6) section 57 of the Online Safety Act required “a person” to comply with a notice under s 56(2) to the extent that it is capable of doing so;

(7) Part 10 of the Online Safety Act established mechanisms for enforcement which in turn applied the provisions of Pt 5 of the Regulatory Powers Act;

(8) section 103 of the Regulatory Powers Act provided that if an infringement officer “believes on reasonable grounds” that a person has contravened (relevantly) s 57 of the Online Safety Act, the infringement officer may give to the person an infringement notice for the alleged contravention;

(9) under s 104 of the Regulatory Powers Act, an infringement notice must state the place of each contravention; and

(10) under s 107 of the Regulatory Powers Act, payment of a penalty that is the subject of an Infringement Notice has three effects: liability of the person for the alleged contravention is discharged, civil penalty proceedings cannot be brought and the person is not regarded as having admitted guilt or liability for the alleged contravention.

20 The primary judge then summarised the events culminating in the merger of Twitter with X Corp, commencing with an instrument titled “Agreement and Plan of Merger” dated 15 March 2023 (merger agreement).  In the merger agreement, “NRS” means Nevada Revised Statutes, “the Company” means Twitter and “the Acquiror” means X Corp.

21 Article 2.1 of the merger agreement was as follows:

2.1    Merger.  Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the NRS, the Company shall be merged with and into the Acquiror as of the Effective Time.  Following the Effective Time, the separate corporate existence of the Company shall cease and the Acquiror shall be the surviving corporation (the ‘Surviving Corporation’).  The effects and consequences of the Merger shall be as set forth in this Agreement and the NRS.

(original emphasis)

22 The primary judge proceeded on the unchallenged assumption that the “Effective Time” was 15 March 2023.  His Honour went on to refer to Article 3.2, extracted here with his Honour’s emphasis:

3.2    Effect.  Upon the Effective Time, (a) the Acquiror, without further act, deed or other transfer, shall retain or succeed to, as the case may be, and possess and be vested with all the rights, privileges, immunities, powers, franchises, and authority, of a public as well as of a private nature, of the Company; (b) all property of every description and every interest therein, and all debts and other obligations of or belonging to or due to the Company on whatever account shall thereafter be taken and deemed to be held by or transferred to, as the case may be, or invested in the Acquiror without further act or deed; (c) title to any real estate, or any interest therein vested in the Company, shall not revert or in any way be impaired by reason of the Merger; and (d) all of the rights of creditors of the Company shall be preserved unimpaired, and all liens upon the property of the Company shall be preserved unimpaired, and all debts, liabilities, obligations and duties of the Company shall thenceforth remain with or be attached to, as the case may be, the Acquiror and may be enforced against it to the same extent as if it had incurred or contracted all such debts, liabilities, obligations, and duties.

23 The primary judge went on to identify two aspects to X Corp’s submissions about whether it was required to comply with the Reporting Notice.  The same arguments underpin Grounds 2 and 3 respectively on this appeal.  They may be referred to as the personhood argument and the liabilities argument.

Disposition of the personhood argument

24 As the primary judge observed, the status argument was directed to the proper construction of s 56(2) and s 57 of the Online Safety Act: J, [49].  It was submitted that the word “person” in s 57 must be construed to mean the same person to whom a notice was given under s 56(2).  It was submitted that as and from 15 March 2023 Twitter had ceased to exist, that it had ceased to be a provider of a social media service and that it was not a “person” having capacity to comply with the Reporting Notice.  Further, it was submitted that X Corp was not the same “person” as the provider to whom the Reporting Notice had been issued.

25 The primary judge said that in simplified terms, the argument was that s 56(2) and s 57 did not call for any choice of law analysis and that strict correspondence between the s 56(2) “provider” and the s 57 “person” was required.  As later recorded by the primary judge (at J, [105]), X Corp focused on the reference in s 56 to the provider of the social media service being the only permitted receiver of a Reporting Notice, and the circumstance that the obligation to comply logically required work to be done by that person.

26 The primary judge did not accept that the issues in the proceeding were to be resolved by reference to s 56(2) and s 57 of the Online Safety Act on the bare premise that the Reporting Notice had been given to Twitter and that Twitter had ceased to exist. His Honour said that foreign corporations were not natural persons, nor were they given artificial legal personality directly by the laws of Australia.  The word “person” as it appeared in s 57, his Honour said, directed attention to the juristic status of the entity given in the Reporting Notice under s 56(2).  His Honour continued (J, [109]):

…  Where that ‘person’ is said to be a foreign corporation, the juristic status of that entity falls to be determined by reference to foreign law, at least to this extent.  The reference in s 57 to a ‘person’ must be understood in the light of the common law’s longstanding approach to the question of the legal personality of foreign corporations.

27 As explained by Lord Wright in Lazard Brothers & Co v Midland Bank Ltd [1933] AC 289 (at 297), the position at common law is that Courts have “recognized as juristic persons corporations established by foreign law in virtue of the fact of their creation and continuance under and by that law” (citing Henriques v Dutch West India Co (1728) 2 Ld Raym 1532 at 1535; 92 ER 494 at 496): J, [108], [118].

28 The primary judge said that certain consequences followed from the conclusion that s 57 of the Online Safety Act directed attention to foreign law for the purposes of deciding whether a foreign corporation was a “person”, including that s 57 should not be understood as operating in isolation from s 7 of the Foreign Corporations (Application of Laws) Act 1989 (Cth).  It relevantly provides:

7 Law applied in place of incorporation applicable law in determining questions relating to status of foreign corporation etc.

(1)    The section applies in relation to the determination of a question arising under Australian law (including a question arising in a proceeding in an Australian court) where it is necessary to determine the question by reference to a system of law other than Australian law.

(2)    Any question relating to whether a body or person has been validly incorporated in a place outside Australia is to be determined by reference to the law applied by the people in that place.

(3)    Any question relating to:

(a)    the status of a foreign corporation (including its identity as a legal entity and its legal capacity and powers); or

…

(h)    the validity of a foreign corporation’s dealings otherwise than with outsiders;

is to be determined by reference to the law applied by the people in the place in which the foreign corporation was incorporated.

(4)    A matter mentioned in subsection (2) or (3) is not to be taken, by implication, to limit any other matter mentioned in those subsections.

29 Accordingly, his Honour said, identifying whether a foreign corporation was a “person” subject to obligations imposed by s 57 of the Online Safety Act depended on the status of the corporation by reference to the law of the place of its incorporation: J, [112].

30 The primary judge held that the relevant question arising under s 57 of the Online Safety Act was the status of X Corp, not the status of Twitter: J, [115].  That was because the true issue was whether a given company was subject to a particular obligation by reason of its status, which was to be determined by the law of the place of its incorporation.  Accordingly, choice of law rules selected the laws of the place where X Corp was incorporated, namely the law of Nevada: J, [116].  The primary judge went on to say:

119    For these purposes, the status of a foreign corporation extended beyond its mere existence, and included all the attributes with which the corporation was invested under the laws of its domicile, including the identification of liabilities that attached to it, at least at the point of its creation:  National Bank of Greece and Athens SA v Metliss [1958] AC 509 (Metliss) at 525 (Viscount Simonds) and 529 (Lord Tucker).

120    Once engaged, s 7 of the Act supplies the content of the choice-of-law rule to the questions set out in the section.  But the reference to the status of a foreign corporation in s 7(3)(a) should be understood in the same way as the common law choice-of-law rule was formulated.  As Davies J observed in La Mancha Group International BV v Federal Commissioner of Taxation [2020] FCA 1799; 112 ATR 660 (La Mancha) at [21], the relevant common law principle finds expression in s 7(3)(a) of the Act.

31 The primary judge identified § 92A.250(1) of Chapter 92A of the NRS as a law that went to the “status” of X Corp for the purposes of the Foreign Corporations (Application of Laws) Act.  It provided:

92A.250.  Effect of merger, conversion or exchange.

1.    When a merger takes effect:

(a)    Every other entity that is a constituent entity merges into the surviving entity and the separate existence of every entity except the surviving entity ceases;

(b)    The title to all real estate and other property owned by each merging constituent entity is vested in the surviving entity without reversion or impairment;

(c)    An owner of a constituent entity remains liable for all the obligations of such constituent entity existing at the time of the merger to the extent the owner was liable before the merger;

(d)    The surviving entity has all of the liabilities of each other constituent entity;

(e)    A proceeding pending against any constituent entity may be continued as if the merger had not occurred or the surviving entity may be substituted in the proceeding for the entity whose existence has ceased;

(f)    The articles of incorporation, articles of organization, certificate of limited partnership or certificate of trust of the surviving entity are amended to the extent provided in the plan of merger; and

(g)    The owner’s interests of each constituent entity that are to be converted into owner’s interests, obligations or other securities of the surviving or any other entity or into cash or other property are converted, and the former holders of the owner’s interests are entitled only to the rights provided in the articles of merger or any created pursuant to NRS 92A.300 to 92A.500, inclusive.

32 His Honour identified four factors that contributed to his conclusion that § 92A.250(1) made provision for the status of X Corp.  First, the provision was to be construed in a context where the merger of two or more corporations under Nevada law did not require the approval of a court or regulatory body.  Secondly, the word “merger” was to be understood as a metaphor that “may not always accurately describe the underlying legal transactions that take place”.  The legal consequences of the merger could be discerned from the phrase “merges into”, and those words were to be given their plain meaning.  On that point, his Honour said (J, [128]):

… They describe a situation where the constituent elements become one whole element, being the surviving entity.  Indeed, an entity that is not the surviving entity is referred to in § 92A.250(1) as a ‘constituent entity’.

33 Thirdly, the word “separate” supported a conclusion that what occurred was not the complete extinction of the constituent entities, but rather their merger into the surviving entity.  Accordingly, his Honour said, it was only the separate existence of Twitter that had ceased to exist.

34 Fourthly, the primary judge said that the scheme of § 92A.250(1) operated to transfer legal incidents from Twitter to X Corp whilst at the same time extinguishing Twitter’s separate existence.  The primary judge described the scheme as effecting a broad and wholesale transfer of legal incidents relating to “liabilities, real estate and other property, owner’s obligations and pending proceedings”.

Disposition of the liabilities argument

35 The second aspect of X Corp’s argument was that the word “liabilities” in § 92A.250(1)(d) did not include regulatory obligations of the kind imposed under s 57 of the Online Safety Act.

36 As identified by the primary judge, the question was whether § 92A.250(1)(d) had the effect (by virtue of the Foreign Corporations (Application of Laws) Act) that it formed a part of the “status” of X Corp that it was subject to regulatory obligations owed by Twitter immediately prior to the merger.

37 The primary judge proceeded from the premise that the content of foreign law is a question of fact to be proven, albeit that the “elements of foreign law were facts of a peculiar kind: Parkasho v Singh [1968] P 233 at 250 (Cairns J, Sir Jocelyn Simon P agreeing at 252)”:  J, [134].

38 His Honour had earlier set out at some length the evidence adduced by the parties as to the content and construction of the applicable foreign law.  That evidence was given by USA practising attorneys called by X Corp and the Commissioner respectively: Mr I Scott Bogatz (an attorney practising in commercial business law in Las Vegas, Nevada) and Mr Alexander Hugh Pyle (an attorney practising in corporate mergers and acquisitions in Boston, Massachusetts).  Both were cross-examined, separately and concurrently.  Their views as to whether the effect of the merger was governed by Nevada law will not be summarised here, as the conclusion of the primary judge on that question is not subject to challenge.

39 After characterising the Court’s task as one of statutory construction, the primary judge identified that under Nevada law, the starting point was “the plain meaning rule” (about which there was no dispute between Mr Bogatz and Mr Pyle).  That rule required that the statute be given its plain meaning in the absence of ambiguity or some clear reason to do otherwise.  His Honour also discerned no dispute between the experts as to the following rules:

70    …

(a)    Nevada courts look to ‘similar based statutes’ in finding the meaning of a statute;

(b)    the court ‘has a duty to construe statutes as a whole, so that all provisions are considered together and, to the extent practicable, reconciled and harmonized’;

(c)    ‘when the same word is used in different statutes that are similar in respect to purpose and content, the word will be used in the same sense, unless the statutes’ context indicates otherwise’;

(d)    ‘when the legislature enacts a statute, this court presumes that it does so ‘with full knowledge of existing statutes relating to the same subject’ ’; and

(e)    that it was the court’s ‘obligation to construe statutory provisions in such a manner as to render them compatible whenever possible’.

…

136    In relation to the rules of statutory construction, I accept that the starting point in Nevada is the plain meaning rule.  Both Mr Bogatz and Mr Pyle gave evidence to this effect.  The plain meaning rule involves giving a statute its plain meaning in the absence of ambiguity, or some clear reason to do otherwise, such as where the plain meaning was clearly not intended:  McKay v Board of Supervisors 102 Nev 644 at 648 (1986); Cote H.  I also accept the evidence of Mr Bogatz that the principles of construction in Nevada include those that I set out at [70].  In the general terms in which those principles were expressed, they were not disputed by Mr Pyle, who was asked to review Mr Bogatz’s report.  I find that these principles, which are essentially emanations of basic linguistic canons of construction, apply to the ascertainment of meaning, whether or not there is an ambiguity.  Where there is an ambiguity, I accept that the principles identified in Chanos that I extracted at [65] above are applicable.  Again, the general terms of those principles were not disputed by Mr Pyle.

40 In cases of ambiguity, the primary judge said that there was no dispute that the principles were as stated by the Supreme Court of Nevada in Chanos v Nevada Tax Commission 124 Nev 232 (2008) at 240, namely:

Generally, when ‘the language of a statute is plain and unambiguous, and its meaning clear and unmistakable, there is no room for construction, and the courts are not permitted to search for its meaning beyond the statute itself.  A statute is ambiguous when it ‘is capable of being understood in two or more senses by reasonably informed persons’ or it does not otherwise speak to the issue before the court.  An ambiguous statute may be examined through legislative history, reason, and considerations of public policy to determine the Legislature’s intent.  We look first to the language of former NRS 360.247 to determine whether it is ambiguous.

(citations omitted)

41 The primary judge referred to the necessity to resolve the disputed issues arising from the evidence of Mr Bogatz and Mr Pyle, a task that he said involved an assessment of the weight that should be given to aspects of their evidence.  The expert opinions are summarised at some length.  For the purposes of this appeal, the following shorter summary will suffice.

42 Mr Bogatz’s evidence was that the word “liabilities” in § 92A.250(1)(d) encompassed only monetary liabilities and that it did not encompass non-monetary liabilities of the kind provided for in s 57 of the Online Safety Act. A “liability”, he said, was something incurred that had to be paid.  His opinion proceeded from the premise that § 92A.250 was ambiguous and so could be construed having regard to “legislative history, reason and considerations of public policy”.  The primary judge summarised Mr Bogatz’s opinion about public policy as follows:

66    As to public policy, Mr Bogatz referred to gaming as a primary industry in Nevada, and to the consideration that mergers do not automatically result in the transfer of gaming licences.  On this topic, Mr Bogatz referred to specific statutory provisions said to have this effect, namely Nevada Gaming Commission Regulations 8.030, 15.510.1-2 and 15.585.7-1, and NRS § 463.510.  In oral evidence, Mr Bogatz stated that he had not found any case law or treatise that suggested that § 92A.250(1)(d) should be construed in light of gaming regulation.  However, Mr Bogatz explained that everything in Nevada was coloured by its history with gaming.  He added that there was a clear-cut policy that agreements to merge or change ownership did not transfer gaming licences, and that this was relevant to his opinion as to a Nevada court’s likely approach to the question whether a liability to comply with a regulatory notice was transferred upon a merger.  He did not accept that the existence of specific laws about the transfer of gaming licences told against the proposition that merger laws of general application would be given a restricted interpretation in relation to the transfer of ‘liabilities’.  Instead, he pointed to the specific matters that were dealt with in § 92A.250(1), including property and legal proceedings, and expressed the opinion that regulatory requirements such as reporting obligations were outside the scope of the provision.  However, he accepted that an obligation to comply with an injunction would transfer to the surviving entity.

…

141    … Mr Bogatz relied on analogies with Nevada gaming legislation in his answer concerning NRS § 92A.250(1)(c), and during cross-examination on the public policy of Nevada.  Clearly, the law relating to business transactions involving gaming in Nevada lies squarely within Mr Bogatz’s field of experience. … in the concurrent evidence session, Mr Bogatz explained that the reason he referred to Nevada gaming law in his report was that the present case deals with regulatory law, so he looked at regulatory issues in Nevada as they pertain to mergers.  This led him to consider gaming law because, in Nevada, the regulatory consequences of mergers are usually related to gaming regulation.  Mr Bogatz’s reasoning appeared to proceed by identifying that Nevada courts are keen to uphold Nevada’s policy of not permitting gaming rights to be transferred by corporate restructures.  Mr Bogatz explained it was the ‘very clear-cut policy’ of Nevada courts not to accept an argument that a corporate restructure necessarily transfers gaming rights under Nevada law.  From there, Mr Bogatz said that ‘it has to go both ways’, meaning that corporate regulatory obligations could not be transferred in a merger.  He stated that Nevada courts would ‘pause’ at such a prospect, out of a concern that acknowledging the transfer of a regulatory obligation would open the door to a regulated company claiming that gaming rights had been transferred by a merger.

(original emphasis)

43 Among other cases, Mr Bogatz referred to Quixtar, Inc v Signature Management Team, LLC (7 April 2009) in which a judge had summarily dismissed a proceeding brought against several defendants who had merged into another corporate entity prior to their joinder.  The judge there said:

Quixtar expresses concern that if the pending motion to dismiss is granted, the constituent corporations ‘might be permitted to insulate themselves (and their co-conspirators) from liability and deny Quixtar rights to satisfy a judgment.’  (P.’s Opp. 1 (#239).)  This concern is not warranted.  By law, all liabilities of a constituent corporation pass to the surviving corporation.  NEV. REV. STAT. § 92A.250(1)(c); see Lamb v. Leroy Corp., 85 Nev. 276, 454 P.2d 24, 26 (Nev. 1969) (‘A consummated agreement of merger or consolidation imposes upon the surviving corporations all liabilities of the constituent corporations so merged or consolidated.’).  Any rights that Quixtar could have asserted against the constituent defendants absent the merger can instead be asserted against Sky Scope as the surviving entity after the merger.  There is no basis for concluding that this transfer of liability to the surviving entity would not include liability for conspiracy or for fraudulent conveyance, Quixtar’s suggestion to the contrary notwithstanding.

In short, under Nevada law, after a business entity merges into another, the constituent entity cannot later sue or be sued because the separate existence of every entity except the surviving entity ceases.  All liabilities of the constituent entity, however, survive the merger, and are the responsibility of the surviving entity.  …

44 Mr Bogatz emphasised provisions of NRS that used the phrase “pay its liabilities” or like expressions.  They included:

(1) NRS § 92A.250(3), relating to “conversion” of a constituent entity, extracted here (with emphasis added):

3.    When a conversion takes effect:

(a)    The constituent entity is converted into the resulting entity and is governed by and subject to the law of the jurisdiction of the resulting entity;

(b)    The conversion is a continuation of the existence of the constituent entity;

(c)    The title to all real estate and other property owned by the constituent entity is vested in the resulting entity without reversion or impairment;

(d)    The resulting entity has all the liabilities of the constituent entity;

(e)    A proceeding pending against the constituent entity may be continued as if the conversion had not occurred or the resulting entity may be substituted in the proceeding for the constituent entity;

(f)    The owner’s interests of the constituent entity that are to be converted into the owner’s interests of the resulting entity are converted;

(g)    An owner of the resulting entity remains liable for all the obligations of the constituent entity existing at the time of the conversion to the extent the owner was liable before the conversion; and

(h)    The domestic constituent entity is not required to wind up its affairs, pay its liabilities, distribute its assets or dissolve, and the conversion is not deemed a dissolution of the domestic constituent entity.

(2) NRS § 92A.270(3), (4), (7) and (8) concerning domesticated and undomesticated organisations, extracted here (again with emphasis added):

3.    Upon filing the articles of domestication and the charter document with the Secretary of State, and the payment of the requisite fee for filing the charter document of the domestic entity, the undomesticated organization is domesticated in this State as the domestic entity described in the charter document filed pursuant to subsection 1.  The existence of the domestic entity begins on the date the undomesticated organization began its existence in the jurisdiction in which the undomesticated organization was first formed, incorporated, organized or otherwise created.

4.    The domestication of any undomesticated organization does not affect any obligations or liabilities of the undomesticated organization incurred before its domestication.

…

7.    When a domestication becomes effective, all rights, privileges and powers of the undomesticated organization, all property owned by the undomesticated organization, all debts due to the undomesticated organization, and all causes of action belonging to the undomesticated organization are vested in the domestic entity and become the property of the domestic entity to the same extent as vested in the undomesticated organization immediately before domestication.  The title to any real property vested by deed or otherwise in the undomesticated organization is not reverted or impaired by the domestication.  All rights of creditors and all liens upon any property of the undomesticated organization are preserved unimpaired and all debts, liabilities and duties of an undomesticated organization that has been domesticated attach to the domestic entity resulting from the domestication and may be enforced against it to the same extent as if the debts, liability and duties had been incurred or contracted by the domestic entity.

8.    When an undomesticated organization is domesticated, the domestic entity resulting from the domestication is for all purposes deemed to be the same entity as the undomesticated organization.  Unless otherwise agreed by the owners of the undomesticated organization or as required pursuant to applicable foreign law, the domestic entity resulting from the domestication is not required to wind up its affairs, pay its liabilities or distribute its assets.  The domestication constitutes a continuation of the existence of the undomesticated organization in the form of a domestic entity.  If, following domestication, an undomesticated organization that has become domesticated pursuant to this section continues its existence in the foreign country or foreign jurisdiction in which it was existing immediately before the domestication, the domestic entity and the undomesticated organization are for all purposes a single entity formed, incorporated, organized or otherwise created and existing pursuant to the laws of this State and the laws of the foreign country or other foreign jurisdiction.  ...

(3) The provisions of another Nevada statute concerning risk retention groups for the purposes of insurance law (NRS § 695E.060), as follows:

695E.060. ‘Liability’ defined.

1.    ‘Liability’ means legal liability for damages, including costs of defense, legal costs and fees, and other expenses for claims, because of injuries to other persons, damage to their property, or other damage or loss to those persons resulting from or arising out of any:

(a)    Business, whether or not conducted for profit, or any trade, product, services, whether or not professional, or any premises or operations; or

(b)    Activity of any state or local government, or any agency or political subdivision thereof.

2.    The term does not include personal risk liability and an employer’s liability concerning its employees, other than legal liability under the Federal Employers’ Liability Act.

45 Based on those provisions and considerations of consistency, Mr Bogatz expressed the view that it was clear that the word “liability” in § 92A.250(1)(d) referred to monetary obligations and not a requirement to provide information to a foreign regulator.  He said that a Nevada court would come to that same conclusion.

46 When asked to express a view about whether an obligation to respond to a regulatory requirement was a “duty” for the purposes of the merger agreement (read in conjunction with NRS Chapter 92A), he said that a “duty” under Nevada law arose in the context of duties owed by one person to another, such as the fiduciary obligation of a trustee and not to regulatory reporting requirements.  He said that the Commissioner had no right under Nevada law to enforce contractual provisions in the merger agreement in any event.

47 The experts’ reports made no reference to the legislative background to NRS Chapter 92A, but the topic did arise in cross-examination.  The primary judge set out the background at some length, including material evincing an intention that a 1991 Bill was based on model legislation (the Revised Model Act) and was intended to simplify and modernise Nevada corporate law statutes by deleting outdated, inconsistent or duplicative language.  Prior to the passage of the 1991 Bill, mergers were governed by NRS § 78.495.  NRS § 78.495(1) provided:

1.    When an agreement of merger or consolidation, or a certificate of ownership and merger, has been signed, acknowledged and filed, as required by this chapter, for all purposes of the laws of this state the separate existence of all the constituent corporations, except that of the surviving corporation in case of merger, shall cease, and the constituent corporations shall thereupon be merged into the surviving corporation, in the case of merger, or shall become the consolidated corporation, in the case of consolidation, and shall possess all the rights, privileges, powers and franchises as well of a public as of a private nature, and be subject to all the restrictions, disabilities and duties of each of the constituent corporations so merged or consolidated, and all and singular, the rights, privileges, powers and franchises of each of the constituent corporations, and all property, real, personal and mixed, and all debts due to any of the constituent corporations on whatever account, as well for stock subscriptions as all other things in action or belonging to each of the constituent corporations, shall be vested in the surviving or consolidated corporation.

(emphasis added)

48 The primary judge noted that the above provision was referred to by the Supreme Court of Nevada in Lamb v Leroy Corp 85 Nev 276 (1969) (discussed below).

49 Referring to dictionary definitions, Mr Pyle expressed the view that the word “liability” encompassed not only pecuniary liabilities but also any legally binding obligation, including an obligation to respond to a regulatory notice.  He said that he had not seen a more narrow meaning of the word being supported in his experience of mergers, and that the more narrow view would result in mergers becoming a vehicle to escape regulatory enquiries.  He said that the word “liabilities” should be given a broad interpretation, and that the narrow definition given in insurance law was one that applied in a different context.  He said that in his 30 years representing clients in mergers and acquisitions he had never heard it argued that only monetary obligations of a constituent entity passed to the surviving entity or that certain types of liabilities could be extinguished by means of a merger.

50 Mr Pyle also expressed the view that the 1969 formulation clearly went beyond pecuniary obligations.

51 Mr Bogatz accepted that the words of the earlier statute did not expressly limit “liabilities” to pecuniary obligations but said he would need to read the statute to understand its context.  His evidence about dictionary definitions is discussed elsewhere in these reasons.

Conclusions of the primary judge about the content of Nevada law

52 The primary judge concluded that Mr Bogatz’s opinions on disputed issues relating to the operation of Nevada’s merger laws “do not carry much weight” and that the opinion of Mr Pyle should be preferred.  That conclusion was based on the following observations and impressions.

53 Mr Bogatz’s paths of reasoning were in some respects insufficiently explained or lacking in clarity.  They included his opinion that the word “duty” was confined to private law duties (such as those owed by fiduciaries), and his reliance on Nevada gaming legislation.  In respect of the former, the primary judge said that it was unclear how Mr Bogatz’s opinion related to the principles of interpretation he had identified.  In respect of the latter, his Honour said that the logic Mr Bogatz had employed in relying on Nevada gaming law was “not persuasive” (at J, [141]), adding (J, [142]):

I do not accept Mr Bogatz’s evidence that gaming in Nevada would influence the proper construction of the merger laws.  Gaming has no connection with the present application, and is subject to its own regulation in the ways identified by Mr Bogatz in his evidence.  Further, the Nevada merger laws appear to be based upon model laws.  Where there are special laws about the transfer of interests and securities in the holders of gaming licences, I am not persuaded that model-based merger laws of general application would take on some special complexion in Nevada, and Mr Bogatz did not refer to any authority that suggested otherwise.

54 The primary judge said that without a better explanation of Mr Bogatz’s path of reasoning, his opinion about consistent interpretation of other statutory provisions referring to liabilities (extracted at [44] above), could not be accepted.  With respect to NRS § 695E.060 (relating to liability insurance) the primary judge said (J, [144]):

… For one thing, Mr Bogatz’s conclusion appears to be that, owing to its use in two statutes, the word ‘liability’ has a uniform meaning across the sweep of Nevada law.  It was not explained how Mr Bogatz reconciled this conclusion with his reference to the decision of the Supreme Court of Nevada in Savage v Pierson 123 Nev 86 (2007), which he produced, which held at 94 that ‘when the same word is used in different statutes that are similar in respect to purpose and content, the word will be used in the same sense, unless the statutes’ context indicates otherwise’ (emphasis added).  Mr Bogatz did not analyse the purpose or content of Chapter 92A, as opposed to the other provisions regarding risk retention groups for the purposes of liability insurance.  As Mr Pyle pointed out, ‘liability’ in an insurance context is apt to refer to pecuniary liability, since insurance policies represent an obligation to pay monetary amounts.  I do not accept Mr Bogatz’s evidence in seeking to align the meaning of ‘liabilities’ in § 92A.250(1)(d) in a corporate merger context with the use of the same term in the patently different context of insurance.

55 It was far from obvious, his Honour said, that the word “liabilities” had the limited meaning assumed by Mr Bogatz to apply in § 92A.270(7).  He added that Mr Bogatz had not explained how the purpose and content of the other provisions relied upon were aligned, nor had he explained how the context of the other provisions bore on his preferred construction of § 92A.250(1)(d) in any event.

56 The primary judge found that there were occasions when it appeared that Mr Bogatz had moulded his evidence to support the conclusions he had expressed in his report (including in respect of dictionary definitions) and that his opinion in those respects was “strained”.

57 Relatedly, the primary judge said it was not obvious why Mr Bogatz could not express a view about the meaning of the 1969 Nevada law without further context, when elsewhere in his evidence he had otherwise been capable of expressing a view about the meaning of the word “liability” isolated from its context.

58 His Honour also found Mr Bogatz’s analysis of § 92A.250(1)(d) to be superficial and affected by “gaps in reasoning” and “leaps in logic” leading from the uncontroversial principles of statutory construction to the conclusions he had reached. Those impressions were summarised as follows (J, [151]):

Overall, I formed the impression that Mr Bogatz was knowledgeable about certain areas of practice that fell within the ambit of his experience, in particular business transactions, gaming, and perhaps liquor licensing.  I was, however, surprised that Mr Bogatz appeared to be unaware of the legislative history that led to the enactment of the current Nevada law relating to corporate mergers, despite being a practising attorney in Nevada for some years.  I also consider that Mr Bogatz was inclined to rely on propositions from his areas of experience in an anecdotal fashion, without explaining in a thorough way how they should inform the proper construction of the statutory provisions in issue.  Without in any way impugning Mr Bogatz’s desire to assist the Court, I formed the view that his allegiance to the opinions expressed in his report made him reluctant in oral evidence to make all the concessions that might have been made if he had been given more time to consider the questions, and analyse them in a more rigorous way.  These considerations lead me to conclude that Mr Bogatz’s opinions on disputed issues relating to the operation of Nevada’s merger laws do not carry much weight.

59 As to Mr Pyle, the primary judge found that his reasoning was “clear, and particularly succinct”, although some opinions were not supported by rigorous analysis.  The primary judge referred to Mr Pyle’s broad experience in merger and acquisition transactions and said that his testimony in the concurrent evidence session “stood in contrast from that of Mr Bogatz in some respects” and that he had made appropriate and necessary concessions.

60 The primary judge identified an aspect of Mr Pyle’s evidence as being of “less assistance”, but the subject matter of that aspect of his evidence did not go to the question of the issue of the correct construction of § 92A.250(1)(d) and therefore did not undermine his opinion on that question of substance.

61 The primary judge went on to construe the Nevada law as follows:

Conclusions on expert evidence

158    … [Mr Pyle] identified the public policy underpinning NRS § 92A.250(1)(d) as being to avoid the situation of having legal obligations disappear and become unenforceable against any entity that had existed prior to the merger.  This accords with an important piece of context that I have mentioned, which is that a merger under the laws of Nevada is substantially the act of the parties and not subject to substantive curial or regulatory oversight.

159    Having regard to the fact that § 92A.250(1) uses the descriptive language of a ‘merger’ of a ‘constituent entity’ ‘into’ a ‘surviving entity’, I find that no narrow construction is likely to be given by the Supreme Court of Nevada to the word ‘liabilities’ in § 92A.250(1) on its plain meaning.  Context requires that the word ‘liabilities’ be construed in a way that is consistent with the object of the surrounding provisions in § 92A.250(1), which is to alter the status of the juristic entities so that the constituent entities become one surviving entity.

160    In the alternative, if there be an ambiguity, then the legislative history of the provision, which Mr Bogatz and Mr Pyle agreed to be relevant, supports a broad construction.  As I have recounted at [92] above, that legislative history supports the view that the object of the current form of § 92A.250 is to simplify and modernise Nevada’s corporate law, and to provide a clear procedural outline with shorter, modernised language.  On the face of it, then, the change in language from ‘restrictions, disabilities and duties’ to ‘liabilities’ does not appear to have been intended to effect a fundamental refashioning of the legal consequences of mergers under Nevada law.  Mr Pyle’s evidence that ‘restrictions, disabilities and duties’ and ‘liabilities’ in this context share a substantially similar meaning accords with what the legislative history suggests.

161    Accordingly, I find that a Nevada court would likely hold that the word ‘liabilities’ in NRS § 92A.250(1)(d) is broad enough on its proper construction under Nevada law to encompass non-pecuniary liabilities, such as the obligation to respond to the reporting notice.

62 Drawing on the above analysis, the primary judge concluded that:

163    On 15 March 2023, the status of X Corp changed so that it became the surviving entity into which Twitter Inc merged.  From the perspective of Nevada law, X Corp’s new status entailed being subject to all the liabilities, including the regulatory obligations, to which Twitter Inc had been subject immediately before it merged into X Corp.

164    By virtue of the Foreign Corporations (Application of Laws) Act, X Corp thus became, for the purposes of s 57, the ‘person’ required to comply with the reporting notice to the extent that it was capable of doing so.

63 It followed, that X Corp had not established that the infringement officer did not have reasonable grounds to believe that it had contravened s 57 of the Online Safety Act.

Ground 2

64 This ground re-agitates the personhood argument.

65 X Corp argued that no foreign law could determine whether it was the “person” required to comply with the Reporting Notice, as only Australian law could supply the answer to that question.

66 The difficulty with that submission is that the Foreign Corporations (Application of Laws) Act is an Australian law.  It supplied an Australian choice of law rule that directed attention to the law of Nevada for certain purposes.  The purposes included the determination of “the status of a foreign corporation (including its identity as a legal entity and its legal capacity and powers)” (s 7(3)(a)).  The primary judge correctly applied an Australian choice of law rule in the fulfilment of a purpose to which it was directed.  Contrary to an assumption underpinning X Corp’s submissions on this topic, his Honour did not have direct resort to the law of Nevada to answer a question of construction arising under the Online Safety Act.

67 It was then submitted that s 7 of the Foreign Corporations (Application of Laws) Act was concerned with ascertaining a corporation’s personhood as a legal entity, but not concerned with the question of whether it owes legal duties or obligations.

68 That submission must also be rejected.

69 On its terms, s 7 is applicable where any question encompassed by it arises in a proceeding in an Australian court.  The questions include “the status of a foreign corporation (including its identity as a legal entity and its legal capacity and powers)” as that phrase is used in s 7(3)(a).  That is a non-exhaustive description.  It is sufficiently broad to encompass the question of whether X Corp must be regarded as having the status of the relevant person for the purposes of s 57 of the Online Safety Act.  On its terms, s 7 required that the question be answered in accordance with the law of Nevada, which in turn provided that Twitter was a constituent entity of X Corp and that its “liabilities” were transferred to X Corp as the “surviving entity” upon the merger.

70 The primary judge did not err in identifying that the Foreign Corporations (Application of Laws) Act supplied a choice of law rule that was relevant to the operation of s 57 of the Online Safety Act because it had something to say on the question of whether X Corp was a person to whom the obligation to provide a Reporting Notice could attach.

Ground 3

71 This ground re-agitates the liabilities argument.

72 X Corp alleges that the primary judge erred by preferring the opinion of Mr Pyle over that of Mr Bogatz, resulting in a misconstruction of the word “liabilities” in § 92A.250(1)(d).  It submitted that whilst the content of a foreign law was a question of fact, this Court could and should “consider the correctness of the primary judge’s findings for itself” as the New South Wales Court of Appeal had done in James Hardie & Co Pty Ltd v Hall (1994) 43 NSWLR 554.  Sheller JA (Beazley and Stein JJA agreeing) there held that an appellate court should approach findings at first instance about a foreign law in the same way as that identified by Cairns J of the English Court of Appeal in Parkasho v Singh [1968] P 233.  His Honour summarised that approach as follows (at 573 – 574):

On appeal, as Cairns J observed in Parkasho v Singh [1968] P 233 at 250, the question of foreign law, although a question of fact, is a question of fact of a peculiar kind and the same considerations do not apply in considering whether and to what extent an appeal court should interfere with the decision of the trial judge as apply in the case of ordinary questions of fact which come before the primary judge.  His Lordship illustrated this peculiarity by referring to a statutory provision similar to s 176 of the Evidence Act 1995 which provides that if, in a proceeding in which there is a jury, it is necessary to ascertain the law of another country which is applicable to the facts of the case, any question as to the effect of the evidence adduced with respect to that law is to be decided by the judge alone.  Cairns J concluded that it was the duty of the appeal court to examine the evidence of foreign law which was before the trial judge and to decide for itself whether that evidence justified the conclusion to which the trial judge came: see also Dalmia Dairy Industries Ltd v National Bank of Pakistan [1978] 2 Lloyd’s Rep 223 at 286, per Megaw LJ.  In Bumper Corporation v Commissioner of Police of the Metropolis [1991] 1 WLR 1362 at 1371; [1991] 4 All ER 638 at 646, the English Court of Appeal, with these authorities in mind, came to the conclusion that a trial judge was not entitled to reject the expert evidence of a foreign law.  …

73 Sheller JA went on to conclude that the primary judge had erred in construing New Zealand legislation in circumstances where no reasons had been proffered for rejecting “compelling” evidence of two experts about its meaning.  His Honour described the fact finding task at first instance as follows (at 573):

Foreign law can be proved as a fact by skilled witnesses: compare ss 174-176 of the Evidence Act 1995; Temilkovski v Australian Iron & Steel Pty Ltd (1966) 67 SR (NSW) 211 at 215, 225; 84 WN (Pt 2) 140 at 143, 183.  Even if the evidence of such a witness is uncontradicted, the court is not bound to accept it but, as Diplock LJ remarked in Sharif v Azad [1967] 1 QB 605, the court should be reluctant to reject it unless it be patently absurd or inconsistent: compare A/S Tallinna Laevauhisus v Estonian State SS Line (1946) 80 Lloyd’s Rep 99 at 108.  In my opinion, it would be only in a rare case that a trial judge, required to make findings about foreign law, would find, contrary to the opinion of an appropriately qualified expert, in favour of his or her own interpretation of the law unless that interpretation was supported by other expert evidence or the opinion was shown to be inconsistent with high judicial authority in the country concerned.  An Australian court should only in exceptional circumstances make a finding about the meaning and effect of a foreign statute, over many years applied daily in the country concerned, contrary to the uncontradicted evidence of a qualified expert in the law of that country.

74 In Parkasho, Cairns J referred to provisions enabling a court on appeal to draw an inference of fact which might have been drawn at first instance, before concluding that “it is our duty in this case to examine the evidence of foreign law which was before the justices and to decide for ourselves whether that evidence justifies the conclusions to which they came” (at 250).

75 To the extent that X Corp submitted that findings of fact concerning the interpretation and operation of a foreign law may be the subject of a de novo review in all cases and without any regard to the reasons for the findings given at first instance, the submission must be rejected.

76 The above passages in James Hardie and Parkasho are to be understood in the context of their particular facts and legal context.  Like James Hardie, the Magistrates at first instance in Parkasho had made findings about the construction of a foreign law based on their preferred interpretation without explaining why the evidence of an expert on the topic had been rejected.  In such cases it may be expected that an appellate court may (indeed must) proceed to decide the factual question for itself on the basis of the expert evidence given, without deference to the role or advantages of the trial judge.  That is not what occurred in this case.

77 This is an appeal by way of rehearing.  The standard of review on such an appeal is that stated by the High Court in Lee v Lee (2019) 266 CLR 129, Bell, Gageler, Nettle and Edelman JJ (at [55]):

A court of appeal is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge’s findings unless they are ‘glaringly improbable’ or ‘contrary to compelling inferences’ is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence.  It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts.  Thereafter, ‘in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge’.  …

78 See also Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Monash Freeway Widening Case) [2022] FCAFC 59, Bromberg, Charlesworth and McElwaine JJ (at [39] – [43]) and the cases cited therein.

79 The High Court in Lee v Lee went on to conclude that the Court of Appeal of the Supreme Court of Queensland had shown a degree of deference to the factual findings of a trial judge that was not in accordance with legal principle, because it had failed to first identify the extent to which the findings were based on the advantages of the trial judge in seeing and hearing the witnesses.

80 There is no reason why the test stated in Lee v Lee should be different in the context of an appeal impugning factual findings based on expert opinions about foreign law, merely because they are findings “of a peculiar kind”.  The test requires that a court on appeal first identify whether the findings are of a kind requiring appellate restraint.  The relevant discrimen is not whether the findings relate to foreign law, but whether they are “likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them given their evidence”.  Where that likelihood exists, the findings should not be disturbed unless it be shown that they are “glaringly improbable” or “contrary to compelling inferences”.

81 In many cases, the likelihood that expert evidence will have been affected by impressions of the kind described in Lee v Lee may be non-existent.  In such cases, the test will be equivalent to that urged upon this Court by X Corp, as the Court on appeal will be in as good a position as the trial judge to decide the factual question.  In other cases it may be apparent that a primary judge has erred by failing to observe the confines of his or her own task by, for example, undertaking independent analysis outside of the evidence adduced by the parties as occurred in James Hardie and Parkasho.

82 In the present case, the primary judge correctly identified that it was his duty to decide the question of the content and meaning of foreign law based on the actual evidence given in the particular case (citing Lazard Brothers) and that the body of material available to him was that adduced in evidence.  His Honour (again correctly) identified that if there were gaps in the evidence, a presumption would arise that the foreign law was the same as that of the forum.  His Honour set out in considerable detail the evidence that had been given in the expert reports and the oral evidence given by the two experts.

83 The primary judge did not ignore the evidence of Mr Bogatz, nor did he proceed to interpret the Nevada law unmoored from the evidence before him.  To the contrary, his Honour gave detailed reasons for preferring the evidence of one expert over that of another.  The reasons indicate that the weight afforded to Mr Bogatz’s opinions was adversely affected by impressions conveyed in the course of him giving oral evidence in the concurrent session and under conventional cross-examination.  That is especially apparent at J, [151].  In addition, the reasoning of the primary judge proceeded, at least in part, from a favourable view of the evidence given by Mr Pyle during the concurrent evidence session and under cross-examination: at J, [155] – [156].  The construction adopted by the primary judge was based on a combination of those impressions together with other shortcomings in Mr Bogatz’s evidence (discussed below).  In accordance with the principles discussed in Lee v Lee, the case calls for appellate restraint.

84 We can see no appealable error in the primary judge’s analysis or conclusions.  The conclusions have not been shown to be glaringly improbable or contrary to compelling inferences.  No attempt was made to characterise the findings in that way.  For the most part, submissions on the appeal were a re-agitation of the arguments advanced at first instance, amounting to an invitation to this Full Court to prefer the evidence of Mr Bogatz over that of Mr Pyle.

85 If we are wrong in identifying the test to be applied on this appeal, we would reach the same finding of fact as the primary judge with respect to the interpretation of § 92A.250(1)(d), for substantially the same reasons that his Honour gave.  The shortcomings in Mr Bogatz’s evidence are identified under the five headings that follow.  Their cumulative effect is that the evidence of Mr Bogatz should be afforded little weight and that the evidence of Mr Pyle on the same question is to be preferred.

Unpersuasive reliance on authority

86 Mr Bogatz annexed two decisions to his report.  The first was the Supreme Court of Nevada’s decision in Lamb.  As the primary judge observed, it concerned a sale of assets in exchange for shares.  In the course of reasoning that Court described a merger as a transaction that “imposes upon the surviving corporation all liabilities of the constituent corporations so merged ...”.  The Court cited § 78.495 of the NRS as then in force, but did not otherwise consider the consequences of a merger under Nevada law.

87 Mr Bogatz did not adequately explain how the passage relied upon could stand for the proposition that the word “liabilities” in § 92A.250(1)(d) was confined to an obligation to make monetary payments.  Additionally, he was ignorant of the terms in which § 78.495 was expressed at the time of the decision, and indeed of the legislative background to the enactment of § 92A.250(1)(d) more generally.  That legislative background is described by the primary judge at J, [87] – [95].  As his Honour later identified (at J, [149]), the 1969 provision provided that upon a merger, the surviving entity “shall … be subject to all the restrictions, disabilities and duties of each of the constituent corporations so merged”.  Mr Bogatz sought to utilise the decision in Lamb in support of his opinion without referring to the statutory words upon which the decision was said to have been based.  The words underlying the 1969 iteration lent no support to his argument.  That undermines the reliability of his opinions more generally.

88 In addition, when questioned about the plain meaning of the 1969 iteration, Mr Bogatz said that the word “pecuniary” did not appear.  He said that although the words were not limited, he would need to consider the context of the earlier provision.  We consider that aspect of Mr Bogatz’s evidence to be unsatisfactory, as did the primary judge.  As an expert in Nevada law, Mr Bogatz ought reasonably to have been expected to avoid citing authorities as summaries for the meaning of a statutory provision in apparent substitution for the actual statutory wording then in force.

89 The second case annexed to Mr Bogatz’s opinion was Quixtar, a decision of the United States District Court for the District of Nevada (see [43] above).  In that case, a suit had been commenced against two entities that had merged into another corporation under § 92A.200 before their joinder.  The Court upheld an application for summary dismissal on the basis that the two entities had ceased to exist.  The Court held that their liabilities had survived the merger and were the responsibility of the surviving entity, such that the surviving entity was liable for the alleged wrongful acts done by them.

90 Mr Pyle’s opinion was that the reasoning in Quixtar demonstrated the understanding of Nevada courts that the surviving corporation in a merger becomes responsible for all obligations of its constituent entities, and not merely obligations to pay monetary amounts.  As recorded by the primary judge, Mr Pyle opined that in his 30 years of practice he had never heard it argued that certain kinds of liabilities could survive a merger but other kinds could not.  Mr Bogatz himself pointed to no authority where a question of that kind had been argued and decided.  Quixtar provides no support for the opinion he expressed.

Ignorance of legislative history

91 In addition, Mr Bogatz had prepared his reports without reference at all to legislative history.  That history is to the effect that § 92A.250(1)(d) was based on model laws and was not intended to alter the effect of provisions in force prior to its enactment (including the 1969 iteration referred to in Lamb).  The primary judge described it as surprising that Mr Bogatz should be ignorant of that legislative history despite having practised as an attorney in Nevada for some years.  We share that view.

Unpersuasive evidence as to dictionary meaning

92 The evidence at first instance included two definitions from Black’s Law Dictionary (12th ed, Thomson Reuters, 2024) for the word “liability”, one that was capable of supporting Mr Bogatz’s opinion and one that was not.  The contrary definition was:

The quality, state, or condition of being legally obligated or accountable; legal responsibility to another or to society, enforceable by civil remedy or criminal punishment.

93 This aspect of the evidence is considered by the primary judge at J, [148] as follows:

…  Mr Bogatz did not accept that the first definition is broader than the second, in that it is not limited to pecuniary obligations.  Instead, he insisted that whether the first definition was broader in this way would ‘depend on the context’.  This is to be contrasted with the fact that Mr Bogatz was able to state what ‘plain meaning’ the word ‘liability’ bears in isolation, with that plain meaning denoting in Mr Bogatz’s view ‘some type of monetary obligation’.  I consider that Mr Bogatz’s opinion in this regard was strained.

94 We arrive at the same conclusion.

95 The breadth of the ordinary or legal meaning of the word “liabilities” assumed considerable importance in the evaluation of the competing expert evidence.  That is because Mr Bogatz’s opinion depended on a premise that the word could not include anything other than a monetary obligation unless accompanied by additional words expanding that otherwise limited meaning.  His credibility and reliability as an independent expert was undermined by his failure to sensibly grapple with a broader dictionary definition so plainly undermining a critical plank of his opinion. Acceptance of the breadth of the word would have meant that if the legislature intended “liabilities” to be limited to monetary payments, additional words of limitation would need to be employed.  The primary judge was correct to describe this as an incident in which Mr Bogatz had moulded his evidence in cross-examination so as to adhere to the opinions he had set out in his report.

Unpersuasive reasoning on the significance of Nevada gaming law

96 Mr Bogatz’s evidence on this topic is summarised by the primary judge at J, [66] and [141] (extracted above).

97 His opinion that Nevada’s gaming laws would influence the proper construction of § 92A.250 had no direct support in authority.  Rather, it was an opinion about the policy considerations a Nevada court would take into account when resolving an ambiguity in the meaning of a word, which informed his opinion as to the “likely approach” of a Nevada court to the question of whether a liability to comply with a regulatory notice was transferred upon a merger.

98 As the primary judge identified, gaming was subject to its own regulation in ways identified by Mr Bogatz and the present case had no connection with gaming.  His Honour described the gaming laws as “special laws” applicable to the transfer of interests and securities in the holders of gaming licenses.  Like the primary judge, we consider Mr Bogatz did not persuasively explain how model laws of general application relating to unregulated mergers would take on some special complexion by reference to the laws of specific application relating to mergers in the gaming context.  Concerns about unauthorised transfer of gaming licenses were addressed by the specific gaming laws to which Mr Bogatz had referred.  He did not adequately explain why those same policy considerations should operate to limit the meaning of the word “liabilities” in the context of a merger outside of the specific industry context in which the gaming laws applied.

Inadequate reasoning concerning other statutory provisions

99 On this topic, X Corp submitted that to construe the word “liabilities” as encompassing non-monetary obligations would be to strain credulity because it would then bear a different meaning in adjacent provisions of the same statute, specifically § 92A.250(3)(h) and § 92A.270(3), (7) and (8) (extracted at [44] above).  The provisions relied upon relate to the conversion and domestication of organisations.  The primary judge was not persuaded by that aspect of Mr Bogatz’s opinion including because he had not adequately explained the meaning, context or purpose of the domestication regime.  On appeal, X Corp did not take the Court to evidence of Mr Bogatz so as to demonstrate that the primary judge was in error in forming that impression.  In addition, the primary judge identified that § 92A.270(7) tended against Mr Bogatz’ argument that the word “liabilities” must necessarily be limited in its meaning, and that he had appeared to assume, without analysis, that “liabilities” in that context referred to pecuniary obligations only (at J[146]).  That is not a mere “neutral” consideration as X Corp submitted on appeal.  It was for Mr Bogatz to grapple with the whole of NRS § 92A.270, including the words and phrases in NRS § 92A.270(7) emphasised by the primary judge.

100 In addition, as the primary judge identified, the word “liabilities” may be limited in meaning to monetary obligations when used in the specific commercial context of insurance law.  The primary judge did not act contrary to the principle stated in Savage v Pierson 123 Nev 86 (2007) (discussed at [54] above), rather his Honour found that Mr Bogatz had not established that the context was sufficiently similar for the principle to be enlivened.

101 As to  § 92A.250(3)(h) and § 92A.270(8), the primary judge said that there were gaps in Mr Bogatz’s reasoning as he had proffered no analysis as to why the use of the word “liabilities” in those sections should shape the meaning of the word in other sections, nor had he explained the purpose of the other provisions, nor had he identified contextual matters supporting his construction.

102 We conclude that the evidence of Mr Bogatz should not carry much weight for the same reasons given by the primary judge, notwithstanding that the word “liabilities” appeared in some adjacent provisions within NRS Chapter 92A.

Insufficient regard to peculiar outcomes

103 Mr Bogatz’s opinion was to the effect that non-monetary obligations owed to third parties would not survive a merger but would effectively be extinguished upon the cessation of the separate existence of the constituent entity that once owed them.  That consequence would follow even if non-monetary assets once owned by the constituent entity (including choses in action against third parties) were transferred for the benefit of the surviving entity.  Nevertheless, while Mr Bogatz expressed the opinion that regulatory requirements such as reporting obligations were outside the scope of § 92A.250(1)(d), he accepted that an obligation to comply with an injunction would transfer to the surviving entity: J, [67].

104 In the absence of decided authority of a court of Nevada, the primary judge was entitled to assess the persuasiveness of Mr Bogatz’s opinion against the contrary view expressed by Mr Pyle.  His Honour undertook that assessment having regard to an important aspect of the statutory context: mergers under Nevada law took effect by agreement between the corporate participants in it, outside of regulatory permission and oversight structures.  It was for Mr Bogatz to persuade the Court that the legislature should be understood to have intended that the rights of outsiders to a merger agreement could be so affected by a transaction to which they were not privy and over which there was no judicial or regulatory oversight.  As summarised by the primary judge (at J, [158]), Mr Pyle identified a public policy underpinning § 92A.250(1)(d) as being “to avoid the situation of having legal obligations disappear and become unenforceable against any entity that had existed prior to the merger”.  Mr Bogatz advanced no compelling reason as to why that public policy consideration could or should be ignored in the process of construing the word “liabilities”.

105 On appeal, X Corp submitted that policy considerations based on “a threat of abusive phoenixing exercises” was “unreal” because regulatory entitlements or privileges generally did not transfer on merger, which meant that phoenixing exercises were more difficult in regulated industries.  That argument does not address the fundamental problems affecting Mr Bogatz’s opinion that the word “liabilities” was limited to monetary liabilities for all purposes.  He did not qualify that opinion by suggesting that the word could bear a wider meaning in non-regulatory contexts.  The primary judge was entitled (as is this Court on appeal) to consider the policy considerations advanced by Mr Pyle as relevant to the interpretation of § 92A.250(1)(d).  In short, if Mr Bogatz’s unqualified opinion were to be accepted, the surviving entity in a merger would enjoy non-monetary benefits of the constituent entities, and yet escape all non-monetary obligations.  In the absence of decided authority, it was for Mr Bogatz to persuade the primary judge that such an outcome accorded with legal principle.  The primary judge observed that his opinion was not sufficiently grounded in well established principles of statutory interpretation in Nevada.  We are of the same view.

Conclusions

106 We have concluded that there is no appealable error affecting the factual findings of the primary judge.

107 Alternatively, to the extent that it formed a part of this Full Court’s task to decide the question for itself, the relevant factual finding is that the word “liabilities” in § 92A.250(d) is sufficiently broad to encompass an obligation to comply with a regulatory obligation owed by a surviving corporation’s constituent entities prior to the merger.

108 It follows that the third ground of appeal is not established.

109 Some concluding observations may be made about Grounds 1 to 3.

110 The issues in the proceeding arose from a “quirk of timing” (to use a phrase employed by senior counsel for X Corp in the course of argument) in that, before the time at which compliance with the Reporting Notice was required, the merger occurred upon which Twitter ceased to exist.  This does not appear to have been regarded at the time as having any material effect on the relevant regulatory obligations.  Prior to issuing the Reporting Notice, the Commissioner had confirmed that Twitter was the appropriate legal entity for service of the notice, which was to be sent to a named lawyer at Thomson Geer, the solicitors who were then acting for Twitter and who subsequently continued to act for X Corp (including in these proceedings).  On 29 March 2023, the date for compliance with the Reporting Notice, the solicitors provided “Twitter Inc’s response” to the notice: J, [30].  This was after the date on which the merger took place (15 March 2023).

111 On 20 April 2023, in the context of subsequent correspondence about compliance with the notice, the solicitors advised the Commissioner about the merger of Twitter into X Corp, relevantly stating that X Corp was “the successor in interest to Twitter, Inc”, that “[a]ll of Twitter, Inc.’s assets, liabilities, rights, etc. passed to X Corp on 15 March 2023 by operation of law”, and that X Corp had become “the provider of the Twitter service in Australia”.  At that time, the solicitors advised the Commissioner that “[t]he Company would prefer that X Corp continues to be referred to as ‘Twitter’ where references are made to the provider of the Twitter service”.

112 The parties continued to engage in correspondence in relation to compliance with the Reporting Notice, culminating in the provision by the solicitor on 5 May 2023 of responses to the clarifying or follow up questions under the heading “final submissions from X Corp (successor in interest to Twitter, Inc)”.  The period to which that notice was directed is from 24 January 2022 to 31 January 2023, during which it is not in dispute that Twitter was the provider of the relevant social media service.  It is unclear what the response of X Corp might have been if a fresh notice were to have been addressed to it requiring a report about the extent to which Twitter complied with basic online safety expectations during the same reporting period.

113 It may be said that none of these matters are capable of affecting the legal questions regarding the proper construction of s 56 and s 57 of the Online Safety Act or the proper application of the choice of law rules.  Nevertheless, they illustrate the rather arid and technical nature of the legal challenge that was ultimately brought by X Corp to the Reporting Notice.  For the reasons set out above, that challenge has no substantive merit.

Ground 4

114 By Ground 4, X Corp contends that the primary judge erred by failing to find that the Commissioner had allowed it a longer period to respond to the Reporting Notice within the meaning of s 56(2)(ii) of the Online Safety Act.  The extension of the period is said to have been granted in an email sent to X Corp by the office of the Commissioner on 6 April 2023 (eight days after X Corp’s original response).  It stated, in part:

We have reviewed carefully, and have some clarifying questions regarding your response to the non-periodic reporting notice (the Notice) given to you on 22 February.

These questions are aimed at:

1.    Clarifying some of Twitter’s responses

2.    Identifying where Twitter has not provided the information in answer to a question in Schedule B of the Notice, in order to provide another opportunity for Twitter to respond

3.    Understanding any reasons why Twitter was not able to provide the information in answer to a question in Schedule B of the Notice.  Please provide specific reasons to help eSafety assess Twitter’s compliance with the Notice.

Please review the questions attached and respond by 12:00 Australian Eastern Standard Time on 24 April.  eSafety remains available to discuss any questions or issues.

(original emphasis)

115 Attached to the email was a table setting out the questions that had been posed in the Reporting Notice, together with a comment about the alleged insufficiency of X Corp’s response and an invitation to X Corp to “either provide the information sought by the [Reporting] Notice or clarify why the information cannot be provided”.  The preamble to the table stated:

Questions to Twitter, Inc. related to its non-periodic reporting notice

These questions relate to the non-periodic reporting notice (the Notice) given to Twitter, Inc. (Twitter) under section 56(2) of the Online Safety Act 2021 (Cth) (the Act) on 22 February 2023, and Twitter’s response on 29 March 2023.

The follow-up questions are aimed at:

1.    Clarifying some of Twitter’s responses;

2.    Identifying where Twitter has not provided the information in answer to a question in Schedule B of the Notice, in order to provide another opportunity for Twitter to respond;

3.    Understanding any reasons why Twitter was not able to provide the information in answer to a question in Schedule B of the Notice.  Please provide specific reasons to help eSafety assess Twitter’s compliance with the Notice.

(original emphasis)

116 A response was sought by midday on 24 April 2023.

117 By a letter of 20 April 2023, X Corp’s lawyer requested “an extension of additional time to respond to the follow up questions sent in response to our submission to the [Reporting Notice]” until 5 May 2023. After a further exchange, on 26 April 2023 the Commissioner sent an email in the following terms:

Thank you for the further information regarding Twitter’s request for an extension, which the Commissioner has considered.

She has decided to grant an extension until 16:00 Australian Eastern Standard Time on 5 May 2023.

Let us know if you have any questions regarding the information sought.

118 At first instance, as on appeal, X Corp argued that by providing it with a “further opportunity to respond” in paragraph 2 of the email of 6 April 2023, the Commissioner had extended the deadline for compliance with the Reporting Notice, with the consequence that the infringement officer could not have a reasonable basis for believing that there had been non-compliance with s 57 of the Online Safety Act in the period between 29 March 2023 and 5 May 2023.

119 Rejecting that submission, the primary judge held that the email and its attachment “proceeded on the premise that the response to the notice had already been given” and should not be construed as evidencing a decision of the Commissioner to allow more time to respond: J, [169].  His Honour referred to the statement that the Commissioner’s office had “reviewed … the response” to the Reporting Notice.  In addition, the questions set out in the email and its attachment were described as “follow-up questions” to clarify some of the responses that had been given, and that understanding was confirmed in the letter from X Corp’s lawyers of 20 April 2023.

120 The primary judge said that, considered in context, the email “should be understood as assuming that a response had already been given, and moving on to consequential matters, rather than allowing more time for a response to be given”.  His Honour concluded:

170    While the Commissioner’s covering email of 6 April 2023 and its attachment referred to providing Twitter with ‘another opportunity to respond’, I do not regard this as amounting to the Commissioner allowing further time to respond to the initial notice.  My principal reason is that the paragraphs numbered ‘3’ of both the covering email and the attachment asked Twitter to ‘provide specific reasons to help eSafety assess Twitter’s compliance with the Notice’.  This was a reference to the reporting notice that had to be complied with by 29 March 2023, and is inconsistent with any idea that there was any allowance of extra time for compliance.  Read fairly, and in its statutory context, the information requested went to whether X Corp had complied with the notice, where s 57 required a person to comply ‘to the extent that the person is capable of doing so’.

171    Nor does the fact that the 6 April 2023 email from the Commissioner’s office specified a deadline for responses to the follow-up questions gainsay this analysis.  True, the deadline is not referable to any power under the Online Safety Act to stipulate a time within which follow-up questions must be answered.  But the deadline simply reflects the pragmatic demands of administration: the Commissioner’s office was requesting answers to the follow-up questions by a certain time, so that the Commissioner could act accordingly.  The deadline does not imply that the time for responding to the reporting notice itself had been extended.

(original emphasis)

121 X Corp’s submissions on this topic were collectively to the effect that its preferred characterisation of the correspondence should have been favoured by the primary judge.  The submissions traverse the same arguments that had been considered and rejected at first instance.  X Corp otherwise submitted that if the correspondence did not amount to the allowance of further time to respond to the Reporting Notice for the purposes of s 56(2)(iii) then the “further opportunity to respond” was illusory.

122 The primary judge did not err in rejecting X Corp’s arguments.

123 The starting point is that there was no decision made by the Commissioner to extend the period specified in the Reporting Notice itself before that period expired on 29 March 2023.

124 Considered in its statutory context, the letter of 20 April 2023 evidenced an opinion formed by the Commissioner that X Corp had provided an inadequate response to the Reporting Notice such that it was, at that time, liable for an ongoing contravention of s 57 of the Online Safety Act.  The primary judge was correct to conclude that the language of the letter was consistent with a decision having been made to afford X Corp an opportunity to rectify that ongoing non-compliance, either by providing adequate responses to the questions or by providing information that might assist the Commissioner to assess whether there was a lawful explanation for the perceived inadequacy in the earlier response.

125 The statutory context was one in which the obligation to respond was qualified by the words “to the extent that the person is capable of doing so”.

126 The phrase “follow up questions” adequately described the array of questions attached to the Commissioner’s letter notwithstanding that to some extent they repeated the same questions contained in the Reporting Notice.  As the primary judge identified, the phrase is to be understood in the context of the 20 April 2023 email considered as a whole, including the statement that the Commissioner was assessing X Corp’s compliance with the Reporting Notice.  That language is inconsistent with the time for initial compliance continuing to run.  The deadline set in the body of the email was a deadline by which X Corp should respond to the correspondence and is not to be equated with the time for compliance specified in the Reporting Notice being extended.

127 In any event, resolution of the ground for judicial review at first instance did not depend on the infringement officer forming an objectively correct view that X Corp had failed to comply with the Reporting Notice on a daily basis in the period from 29 March 2023 to 5 May 2023, as the Infringement Notice ultimately alleged.  Rather, the Infringement Notice was based upon the infringement officer’s formation of a reasonable belief as to that daily contravention.  Nothing in the correspondence precluded the formation of that state of mind.

128 There is no merit in this ground of appeal.

Ground 5

129 Section 104 of the Regulatory Powers Act relevantly provides:

104 Matters to be included in an infringement notice

(1)    An infringement notice must:

…

(e)    give brief details of the alleged contravention, or each alleged contravention, to which the notice relates, including:

(i)    the provision that was allegedly contravened; and

(ii)    the maximum penalty that a court could impose for each contravention, if the provision were contravened; and

(iii)    the time (if known) and day of, and the place of, each alleged contravention; and

130 On appeal there is no dispute that the Infringement Notice did not identify the place of the alleged contraventions as required by s 104(1)(e)(iii).  At first instance, X Corp argued that the Infringement Notice was invalid because of non-compliance with that condition.  It relied inter alia on the mandatory language of the provision.  It submitted that the language evinced Parliament’s intention that information about the place of the alleged contravention was necessary for the recipient of an infringement notice to decide whether and how to respond to it.  It submitted that s 104(1)(e)(iii) aligned with the general law in relation to the charging of an offence, as articulated by Hampel J of the Supreme Court of Victoria in Goodman v Stafford (1992) 15 MVR 145.

131 The primary judge proceeded from the starting point that the consequences of non-compliance with s 104(1)(e)(iii) must be discerned by a process of statutory interpretation.  As McHugh, Gummow, Kirby and Hayne JJ said in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (at [91]):

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect.  Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition.  The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.  …

132 Citing Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627, the primary judge identified that some statutory provisions may be construed such that non-compliance with a condition on the exercise of a power might result in invalidity in some cases, but not in others.  His Honour said (at J, [199]) that s 104(1)(e)(iii) was such a provision, and that:

….  On its proper construction, the Regulatory Powers Act evinces an intention of invalidating an infringement notice for non-compliance with this requirement only where that non-compliance could prejudice the recipient of the notice.

133 The primary judge said that X Corp had not advanced any persuasive basis on which to conclude that the failure of the Infringement Notice to identify the place of the contraventions could have caused it to suffer any prejudice.  His Honour concluded that the judgment of Hampel J in Goodman was of no assistance to X Corp because it was a case that turned on its particular facts, arose in a different legal context, and was of “doubtful authority” in any event:  J, [209].

134 The reasoning of the primary judge was challenged on several bases.

135 First, X Corp submitted that the primary judge erred by concluding that SZIZO could stand for a general proposition that non-compliance with a condition on the exercise of a statutory power could invalidate its exercise in some cases but not in others.  It was further submitted that SZIZO was a case concerning a statutory codification of the natural justice hearing rule.  Accordingly, the statute there in question identified and adopted “a familiar juridical standard” by which the significance of any non-compliance with a statutory condition could be assessed.  In contrast, it was submitted, the primary judge’s conclusion that the consequences of non-compliance with s 104(1)(e)(ii) of the Regulatory Powers Act depended on whether the recipient of the notice was prejudiced had no foundation in the text of the statute.  It was submitted that such a test promised “complex and unrewarding disputes about the presence of ‘prejudice’”.

136 We do not accept those submissions.  There was nothing complex or unrewarding about the enquiry into whether X Corp was prejudiced by the non-compliance identified in the present case.  The primary judge readily concluded that there was no prejudice, including because the place of the alleged contravention was not a factor affecting X Corp’s understanding of the Infringement Notice, the acts or omissions upon which it was based or its consideration of the options available to it.  Further, his Honour noted that an infringement notice does not create an enforceable liability, but rather provides an alternative avenue for discharging civil and criminal liability.

137 The High Court in SZIZO undertook an enquiry of a similar kind.  In that case, a provision of the Migration Act 1958 (Cth) mandated that a Tribunal provide documents to a review applicant or the review applicant’s authorised representative.  A review proceeding was commenced by seven applicants, the first of whom nominated an authorised representative.  In breach of the condition, the Tribunal gave notice of a review hearing to the first applicant (other than through his authorised representative), instructing him to inform the other applicants of its contents.  The High Court held that the condition in question was not an inviolable restraint on the exercise of the Tribunal’s powers.  Rather, as the statutory condition in question was part of a codified regime for affording procedural fairness, it was necessary to consider whether non-compliance had the consequence that the applicants had been denied natural justice.  On that question, the High Court concluded that the statutory provision in question was concerned with the manner in which notice of a hearing was to be given, and that the manner of providing timely and effective notice of a hearing “was not an end in itself” (at [34]).  The High Court concluded that while the legislature may be taken to have intended that compliance with the statutory conditions would discharge the Tribunal’s obligation to give timely and effective notice of a hearing, it did not follow that there was also an intention that any departure from those steps would result in invalidity “without consideration of the extent and consequences of the departure” (at [35]).  The requirement in that case to consider the consequences of the breach arose notwithstanding the detailed regime established by the statute and its use of imperative language (at [36]).

138 The primary judge did not proceed from an assumption that the statutory regime in SZIZO was analogous to the context in which s 104(1)(e)(iii) of the Regulatory Powers Act appears.  Rather, his Honour identified SZIZO as relevant because it supplied the answer to a higher level threshold question: whether breach of the same statutory condition could result in invalidity in one case but not in another, depending on the consequences of the breach.  So much is made clear at J, [192]:

On one view, s 104 of the Regulatory Powers Act is similarly concerned with affording fair notice of the details of alleged contraventions to those who receive infringement notices.  The context is thus allied to the context of procedural fairness, but the relevance of SZIZO does not turn on that.  Rather, SZIZO illustrates that, where a condition on the exercise of a statutory power has not been observed, it may be a purpose of a statute to invalidate only some exercises of power made in breach of the statutory condition.  Indeed, SZIZO demonstrates that it may be a purpose of an empowering statute to invalidate certain exercises of power by reference to ‘the extent and consequences of the departure’ from the requirements of the statute:  see SZIZO at [35].  In the particular context of SZIZO, the Court held at [36] that determining the consequences of a failure to comply with ss 441G and 441A for the validity of subsequent statutory activity ‘will require consideration of whether in the events that occurred the applicant was denied natural justice’.

139 As a matter of legal principle, his Honour was correct to answer the threshold question in the affirmative.  The conclusion that s 104(1)(e)(iii) of the Regulatory Powers Act was such a provision was based on other materials.  They included the Replacement Explanatory Memorandum accompanying the Regulatory Powers (Standard Provisions) Bill 2014 (Cth) and the wider context of the statute from which the purpose of an infringement notice could be discerned.

140 Next, X Corp submitted that the primary judge erred in failing to give effect to Parliament’s intent that the time and place of an alleged contravention are “essential factual ingredients” that the recipient of an infringement notice must be given.  It is only by knowing those essential factual ingredients that the recipient can understand the alleged infringement it is being invited to compromise, so it was submitted.

141 Relatedly, X Corp argued that the primary judge erred by placing weight on the fact that an infringement notice does not of itself impose any liability, as the threat of proceedings necessarily made by the notice was likely to exert a degree of compulsion amounting to a form of exaction.

142 The difficulty with that submission is its reliance on the imperative language in s 104(1)(e)(iii) as evincing an intention that non-compliance with the imperative sounds in invalidity.  As the High Court more recently emphasised in Miller v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 78 CLR 628 (at [28]), “mere use of imperative language to express a condition imports no presumption that non-compliance with the condition is intended to result in invalidity”.

143 Moreover, it is not at all apparent that the place of a contravention is an “essential factual ingredient” in the sense that its inclusion in an infringement notice is an inviolable restraint on the power conferred under s 104(1)(e)(iii) in all cases.  The elements of a contravention of s 57(2) of the Online Safety Act do not include any physical or fault element referable to a place, nor is place a discrimen that enables a recipient to identify duplicity or other unfairness in the formulation of a charge.

144 In the case of contraventions comprised of an omission to do something required to be done, the place of the omission could not be said to inform the recipient’s decision as to what options it might exercise or compromises it might make in response to an infringement notice.  The primary judge was correct to conclude that X Corp “had everything it needed to know in order to consider the allegations made against it” as set out in the Infringement Notice (at J, [200]).  It is plain from the balance of the reasons that that conclusion proceeded from a proper construction of the regime of the Regulatory Powers Act, including the threats of proceedings and options for compromise for which it provided.

145 Lastly, it was submitted that the “possible prejudice” standard identified by the primary judge was unworkable and difficult to reconcile with other mandatory requirements of s 104(1).  It was submitted that on the construction preferred by his Honour, there could be non-compliance with other requirements which would patently give rise to prejudice, and that could then be “cured” by the provision of information other than on the face of the notice itself.  That state of affairs was said to have been “eschewed” by s 104(1).  Examples were requirements to state the name of the person to whom a notice is given (subs (c)), the requirement to state the amount payable under the notice (subs (f)), and the requirement to explain how payment of the amount was to be made.

146 That submission must also be rejected.  The primary judge did not conclude that validity of an infringement notice omitting information of that kind would turn on the same test for prejudice applicable to non-compliance with the condition in subs (e)(iii) referring to “place”.  Analysis of the other provisions may give rise to different considerations, particularly where the omission of the required information deprives the recipient of a meaningful opportunity to choose the course to take, or to execute the chosen course.  In any event, if the standard identified by the primary judge necessarily applied to other conditions on the power, the standard would not be unworkable as X Corp contended.  It may simply be that on the proper application of that standard, prejudice of the relevant kind would necessarily follow from the breach of a different condition on the facts in all cases, so resulting in invalidity in those cases.

147 Ground 5 must therefore fail.

148 The appeal will be dismissed with costs.

Associate:

Dated:    31 July 2025