Page:Take-Two Interactive Software, Inc v Anderson.pdf/12

 further order, unless the Respondent:


 * (a) files and serves evidence pursuant to order 3 made on 13 November 2019 as varied by order 1 above; or


 * (b) indicates in writing to the Court and the Applicants by 4.00pm on 23 April 2021 that the Respondent does not intend to adduce evidence in chief in this proceeding,

then the Applicants have judgment against the Respondent, with remedies to be determined (see order 6(a) of the orders of 4 March 2021).

11 The respondent did not file or serve any evidence by 23 April 2021 in accordance with the order 3 made on 13 November 2019 as varied including by the order made on 16 April 2021 ("the self-executing order"). Nor did the respondent's solicitor indicate in writing to the Court that he did not intend to adduce any such evidence. In the result the respondent failed to comply with the self-executing order. Subject to any further order, the applicants are entitled to judgment against the respondent with remedies to be determined.

12 There is nothing in the evidence to suggest that the respondent was not aware of the terms of the orders made on 4 March 2021 or 16 April 2021. Indeed, the self-executing order made on 4 March 2021 was made with the consent of the parties from which it can be inferred that the respondent provided instructions to his solicitor to consent to those orders.

13 The proceeding was next listed before me for a case management hearing on 29 April 2021. At that hearing the respondent's solicitor, Mr Macinnis, applied for an order varying the time for compliance with the self-executing order nunc pro tunc. I indicated that an interlocutory application should be filed accompanied by affidavit evidence explaining the reasons for the default. I also indicated that the affidavit should exhibit any affidavit evidence the respondent wished to rely upon at the hearing of the proceeding were the interlocutory application to be granted.

14 Following the case management hearing I made orders (inter alia) requiring the respondent to file and serve any interlocutory application together with supporting affidavit by 4.00pm on 7 May 2021. The respondent, Mr Anderson, filed his interlocutory application along with an affidavit made by him just before 4.00pm on 7 May 2021. Mr Anderson's affidavit was not signed or witnessed as required by the Rules, but the affidavit was subsequently affirmed by him on 10 May 2021. In my view, nothing turns on the fact that the affidavit served on 7 May 2021 was not affirmed until after that date. Take-Two Interactive Software, Inc v Anderson [2021] FCA 1024