reporting notice. This submission turned on the proper construction of the relevant Nevada statute.
The submissions of the Commissioner
51 The Commissioner submitted that X Corp was required, as a matter of the law of Nevada and Delaware, to comply with the reporting notice that was given to Twitter Inc under s 56(2) of the Online Safety Act. The Commissioner's primary position was that, for the purposes of Australian law, the legal effects of the merger on X Corp's liability to respond to the reporting notice are determined by the law of Delaware.
52 In written submissions, the Commissioner submitted in the alternative that X Corp had represented to the Commissioner that X Corp was the appropriate entity to respond to the notice and that the Commissioner had relied on that representation. It was submitted that as late as 15 October 2023, when X Corp provided its submissions to the Commissioner concerning the withdrawal of the infringement notice, X Corp had not referred to the merger with Twitter Inc as some kind of exculpatory consideration. In these circumstances, it was submitted that X Corp is appropriately said not to have complied with the reporting notice that was given to Twitter Inc. This line of argument was not developed at the hearing.
The expert evidence as to foreign law
53 Two United States practising attorneys gave evidence. Counsel for X Corp adduced evidence from Mr I Scott Bogatz, an attorney practising in commercial business law in Las Vegas, Nevada. Mr Bogatz produced a report that was received into evidence, subject to some limitations on its use that were the subject of a direction under s 136 of the Evidence Act 1995 (Cth). The limitations related to aspects of the report which appeared to go beyond the role of the expert in identifying the relevant content of foreign law and which encroached upon the question before the Court, namely the application of s 56(2) of the Online Safety Act to X Corp: see Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (No 6) (1996) 64 FCR 79 at 82–3 (Lindgren J), cited in Neilson v Overseas Projects Corp of Victoria Ltd [2005] HCA 54; 223 CLR 331 at [120] (Gummow and Hayne JJ).
54 Counsel for the Commissioner adduced evidence from Alexander Hugh Pyle, an attorney practising in corporate mergers and acquisitions in Boston, Massachusetts. Mr Pyle produced a report and a supplementary report. While no objections were made to his reports, questions
