Page:Take-Two Interactive Software, Inc v Anderson.pdf/14

 it is correct to say that a default judgment has been entered against the respondent. In my view, the judgment which the respondent seeks to set aside is in fact the self-executing order which, in the events that happened (but subject to any further order), now entitle the applicants to have remedies determined for the copyright infringement and other causes of action referred to in their statement of claim. Accordingly, the interlocutory application is to be approached on the basis that the respondent seeks to have that judgment either varied or set aside with the consequence that the applicants would no longer have any present entitlement to have remedies assessed.

20 The applicants accept that the judgment is an interlocutory judgment and accordingly may be varied or set aside pursuant to r 39.05(c) of the Rules: Re Luck (2003) 203 ALR 1 at [4]. They do so on the basis that the order was expressed to be "subject to further order". However, that is not the only basis for concluding that the relevant order was interlocutory. It was interlocutory because it did not finally determine the rights of the parties.

21 The power contained in r 39.05(c) of the Rules must be exercised judicially and consistently with the overarching purpose of s 37M of the Act. Section 37M of the Act relevantly provides:

22 In assessing whether the power contained in r 39.05(a) should be exercised to set aside a judgment entered consequent upon the failure of a respondent to appear, it is necessary to Take-Two Interactive Software, Inc v Anderson [2021] FCA 1024