Page:Take-Two Interactive Software, Inc v Anderson.pdf/10

 5 Procedural orders were made on 28 September 2018. These orders required (inter alia) that the respondent file and serve any defence on or before 19 October 2018. The time for the filing of the defence was first extended by consent on 22 October 2018 to 16 November 2018 and was further extended by consent on 19 November 2018, 20 December 2018 and 20 February 2019. The orders made on 20 February 2019 relevantly provided:

"The Respondent is to file and serve any defence by 4pm on 26 February 2019, failing which, at the next case management hearing, the Respondent is to show cause, why judgment should not be entered pursuant to rule 5.23 of the Federal Court Rules 2011, on account of the Respondent's failure to comply with orders previously made in the proceedings in respect of filing a defence."

6 The respondent's defence was filed on 27 February 2019 with various orders made by consent extending the time for the applicants to file their reply to 7 June 2019. Some of this delay can be attributed to the respondent foreshadowing in correspondence the possibility that a further defence would be raised in an amended defence. At the time it was suggested that the amended defence would raise (inter alia) issues of waiver and estoppel relating to the operation of the End User Licence Agreement ("the EULA") and the Terms of Service ("the ToS") which are referred to in more detail later in these reasons. Orders were made on 16 May 2019 to enable to respondent to file an amended defence if he wished to do so. No amended defence was filed.

7 Orders were made on 13 November 2019 for the filing of affidavit evidence. Those orders required the applicants to file and serve their evidence in chief by 17 April 2020, the respondent to file and serve his evidence in chief by 17 July 2020, and the applicants to file and serve evidence in reply by 28 August 2020. These dates were later extended by consent to 12 June 2020, 17 September 2020 and 28 October 2020 respectively.

8 Most of the applicants' affidavit evidence-in-chief was filed and served on 12 June 2020. However, some confidential material was not served on the respondent until 7 July 2020 (approximately three and a half weeks out of time).

9 The time for compliance with order 3 of the 13 November orders (the date for the filing of the respondent's affidavit evidence) and order 4 (the date for the filing of the applicants' evidence in reply) were subsequently extended on 19 October 2020 to 4 December 2020 and 26 February 2021 respectively. The respondent did not file any affidavit evidence by that date. The proceeding was next listed for a case management hearing on 5 March 2021. On Take-Two Interactive Software, Inc v Anderson [2021] FCA 1024