X Corp v eSafety Commissioner [2024] FCA 1159

Federal Court of Australia X Corp v eSafety Commissioner [2024] FCA 1159 File number: VID 956 of 2023

Judgment of: WHEELAHAN J

Date of judgment: 4 October 2024

PRIVATE INTERNATIONAL LAW — Online Safety Act 2021 (Cth) ss 56(2), 57 – where the eSafety Commissioner issued a notice to Twitter Inc under s 56(2) of the Online Safety Act on 22 February 2023 (the reporting notice), requiring a response by 29 March 2023 – where Twitter Inc merged into X Corp on 15 March 2023, and thereupon ceased to exist – where X Corp sought a declaration that it was not obliged to respond to the reporting notice – whether X Corp was obliged to respond to the reporting notice – in the case of a foreign corporation, it is necessary to refer to foreign law to identify the juristic status of the "person" on whom s 57 of the Online Safety Act operates – s 7(3)(a) of the Foreign Corporations (Application of Laws) Act 1989 (Cth) directs attention to the law of Nevada, as the law of the place where X Corp is incorporated, to decide questions about the "status" of X Corp – the law of Delaware, the place where Twitter Inc was incorporated, is not selected by s 7(3)(a) – an aspect of the "status" of X Corp pursuant to Nevada law is that it is subject to all of the "liabilities" to which Twitter Inc was subject before the merger – the term "liabilities" in the relevant Nevada law is broad enough to encompass non-pecuniary regulatory obligations – X Corp was required to respond to the reporting notice. Catchwords: ADMINISTRATIVE LAW — where X Corp was issued with an infringement notice under the Regulatory Powers (Standard Provisions) Act 2014 (Cth) (Regulatory Powers Act) – where X Corp sought a declaration that the infringement notice was invalid because it did not specify the geographical location where the conduct constituting the alleged contraventions took place – s 104(1)(e)(iii) of the Regulatory Powers Act requires an infringement notice to specify the geographical location of where the conducting constituting the alleged contraventions took place – Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 and Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; 238 CLR 627, applied – it was not a purpose of the legislation to invalidate an infringement notice where the omission of the place of the contravention could not lead to prejudice – there was no prejudice to X Corp by the omission of the place of the alleged contraventions from the infringement notice – the infringement notice was not invalid for non-compliance with s 104(1)(e)(iii) – declaration refused. ADMINISTRATIVE LAW — where X Corp challenged the validity of the infringement notice on the basis that X Corp had been allowed additional time within which to respond to the reporting notice – whether, pursuant to s 56(2)(c)(ii) of the Online Safety Act, the Commissioner had allowed extensions of time to X Corp to respond to the reporting notice – the Commissioner had not allowed X Corp any extension of time to respond.